Dawson Metal Products, Inc.

DAWSON METAL PRODUCTS, INC. Dawson Metal Products, Inc. and Local Lodge 1316, International Association of Machinists & Aerospace Workers, AFL-CIO. Cases 17-CA-3686 and 17-RM-397 June 10, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On April 21, 1969, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that Respondent 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 Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. Finally, the Trial Examiner found that certain conduct of Respondent after the petition in Case 17-RM-397 was filed interfered with the elec- tion, and recommended that the election be set aside and the petition dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, a supporting brief, and a supplemental 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified below, We agree with the Trial Examiner's findings that Respondent violated Section 8(a)(1) of the Act by unlawful interrogation, promises of benefits, threats, and telling an employee that Respondent would not hire individuals with union backgrounds. ' Thus, the Trial Examiner found and the record shows that Foreman Rogers threatened employee Anderson with respect to the consequences of his union support, Pfant Superintendent Paufie and Foreman Rogers promised benefits to Anderson and employee Jackson if the Union were re- jected, Foreman Rogers and Paulie coercively interrogated employees An- derson, White, Jackson, McAllister, and Neftzger, and Personnel Manager Kuhlmann stated repeatedly to his secretary that Respondent would not hire union sympathizers ' On June 12, 1969, Respondent filed a motion to reopen the record and receive in evidence a letter dated May 27, 1969, purportedly signed by a number of Respondent's employees, stating that they did not want to be 191 We also agree that Respondent's refusal to bargain on and after August 27, 1968, with the Union which represented a majority of Respondent's em- ployees in the appropriate unit violated Section 8(a)(5) of the Act. On June 16, 1969, the Supreme Court of the United States issued its decision in N.L.R.B. v. Gis- sel Packing Company, 395 U.S. 575, affirming generally the Board' s use of authorization cards in determining a union 's majority status, and the Board's power to issue a bargaining order based upon such showing, where the employer's unfair labor practices had a tendency to undermine the union 's majority and impede the election process. In the light of the standards set forth in the Supreme Court's decision in Gissel, we find that by refusing to bargain with the Union and by engaging in a series of unfair labor practices to undermine the Union's majority status, Respondent violated Section 8 (a)(5) of the Act. In so finding, we note that the unit is small , the unlawful conduct was en- gaged in by the plant superintendent and personnel manager as well as by a foreman,' and the first elec- tion was so close that the shift of but two votes could have produced a union victory. In these cir- cumstances, we find that the coercive effects of Respondent's unfair labor practices cannot be eliminated by traditional cease-and-desist remedies and were of such a nature as to make a fair election doubtful, if not impossible. Consequently, we find that the purposes of the Act can better be effectu- ated by reliance on the employees' desires as ex- pressed by signed authorization cards than on the results of a rerun election, and that issuance of a bargaining order is appropriate.' ORDER 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 orders that Respondent, Dawson Metal Products, Inc., Camdenton, Missouri, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as modified below.' represented by the Union The General Counsel filed an opposition to the motion The motion is denied Assuming that the proffered evidence would show that the Union no longer represented a majority in the appropriate unit, Respondent cannot , in view of its serious unfair labor practices, rely on the Union's loss of majority status as a justification for its refusal to bar- gain To do so "would, in effect, be rewarding the employer and allowing him 'to profit from [his] own wrongful refusal to bargain - N L R u v Gissel Packing Company, supra 'In fn 17 of the Trial Examiner's Decision substitute the word "Judg- ment" for "Decree" wherever it occurs 183 NLRB-No. 25 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if IS FURTHER ORDERED that all alleged violations not herein found, as well as the petition in Case 17-RM-397, be, and the same hereby are, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This is a consolidated proceeding on a complaint of unfair labor practices, as amended at the hearing, against Dawson Metal Products, Inc., herein called Respondent, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and on objections to the conduct of an election in which Respondent's employees par- ticipated, which objections involve in part the same alleged misconduct of the Respondent set forth in the complaint. In Case 17-CA-3686 a charge was filed on Oc- tober 1, 1968,' against Respondent by Local Lodge 1316, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union. The complaint issued on November 19 and as amended at the hearing alleged that Respondent through its agents interfered with its employees' rights guaranteed in Section 7 of the Act by the use of threats of harm and promises of benefit related to union activities, by interrogation of employees, by creating the impression of surveillance, by blam- ing the Union for its failure to grant pay raises, and by informing employees that job applicants were being rejected because of their union connections. In addition the complaint alleged that Respondent unlawfully refused to bargain with the Union as the representative of its production and maintenance employees. In its answer Respondent denied the commission of any unfair labor practices. In Case 17-RM-397 Respondent filed a petition on September 3 seeking an election in a unit of its production and maintenance employees. Pursuant to a Stipulation for Certification Upon Consent Election executed by all the parties, an election was held on September 25 among Respondent's produc- tion and maintenance employees at its Camdenton, Missouri, plant. The employees cast 13 votes for the Union and 15 against the Union. There were no void or challenged ballots. Thereafter on Sep- tember 27 the Union filed timely objections to the conduct of the election. After investigation of the objections the Regional Director for Region 17 of the Board concluded that the objections included , All dates are in 1968 unless otherwise specified 'Both General Counsel and Respondent filed motions to correct the transcript of the record. Neither objects to the motion of the other except in one limited particular Respondent objects to that part of the General Counsel's motion that would change the name "Order' to "OrdellJones" on page 215, line 4 of the transcript Except as to that one item to which there is an objection , both motions are granted. The corrections are set matters which were also the subject matter of the complaint in Case 17-CA-3686 and that substan- tial and material issues of fact and law had been raised by the objections which could best be resolved on the basis of record testimony. Ac- cordingly, by order dated November 21, the Re- gional Director consolidated Case 17-RM-397 with Case 17-CA-3686 and further ordered that, after hearing, ruling, and decision by a Trial Examiner, Case 17-RM-397 be transferred to and continued before the Board in Washington, D.C. A hearing was held before me in Camdenton, Missouri, on January 7 and 8, 1969, in which all parties were given full opportunity to participate, adduce evidence, examine and cross-examine wit- nesses, and argue orally. Thereafter, briefs, which have been carefully considered, were filed on be- half of the Respondent and the General Counsel. Upon the entire record2 in the case and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Kansas corporation, maintains an office and factory at Camdenton, Missouri, herein called the plant, where it is engaged in the business of manufacturing various metal products. In the course of its business at the plant Respondent an- nually sells goods valued in excess of $50,000 directly to customers located outside the State of Missouri and annually purchases goods and services valued in excess of $50,000 directly from sources outside the State of Missouri. The complaint alleges , the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges , the answer as amended at the hearing admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE CONDUCT OF THE ELECTION A. The Alleged Violations of Section 8(a)(1) of the Act forth in Appendix A of this Decision (Omitted from publication ) Included in these corrections is one which was overlooked by the parties in their mo- tions On page 8, line 20, the word "proclaimed" is corrected to read "of the complaint." A number of additional corrections could properly have been made, but because the errors are obvious and the sense nevertheless discernible from the uncorrected text, I have refrained from enlarging the list of corrections DAWSON METAL PRODUCTS, INC. 193 1. The conversations with Respondent's President Dawson Richard W. Dawson is president of Respondent and an admitted supervisor within the meaning of the Act.3 Dawson's conversations with four em- ployees were offered by the General Counsel to support allegations in the complaint that Respon- dent violated Section 8(a)(1) of the Act. These em- ployees were: Donald Danuser, Harley White, Gary McAllister, and Larry Harris. a. Danuser Facts Donald Danuser is a machine worker who has been in the employ of Respondent since 1967. He was a key employee in the Union 's organizational drive. In July or August he spoke to a group of em- ployees about the Union; he arranged for the union representative , Eugene Eyink, to speak to the em- ployees; he obtained authorization cards from the Union; and he solicited employees to sign them. When Danuser was hired he was told by Dawson that he would get a raise at the end of 60 days, another at the end of 6 months, and another at the end of a year. At the end of his first year of employ- ment he did not receive the raise because he had failed to purchase tools that were needed for the job and because of his repeated tardiness in report- ing for work. About September 6, which was 2 weeks after Danuser signed an authorization card for the Union, about 2-1/2 weeks before the elec- tion , and about 1 month after his completion of a year's employment, Danuser approached Super- visor Jack Kuhlmann and asked whether he could have the dime raise which he had not received at the end of his year. Kuhlmann answered that he would -get Respondent's president, Dawson. Kuhl- mann left and a little while later Dawson came to where Danuser was standing and had a conversa- tion with him. Shortly after the conversation began Supervisor Ralph Paulie joined the discussion. Danuser asked Dawson for the 10-cent raise. Dawson answered that he could not do anything at the moment about the wage increase because "all wages were frozen pending this union litigation or union activity or question." Though Danuser testified that Dawson said , "Don, I cannot give you this raise on account of the Union," it is clear from what followed that both Dawson and Danuser un- derstood that the remark was relating to the pen- dency of the election .' Dawson took Danuser to the bulletin board and showed him a notice to em- ployees from the National Labor Relations Board, pointing out that portion which stated that em- ployers were prohibited from "making promises of promotions, pay raises, or other benefits, to in- fluence an employee vote, by a party capable of carrying out any such promise." Dawson then took Danuser to the outer office where clerical work was done and showed him a letter from the Union dated August 26 which said in part "Please treat this request for recognition as the majority representa- tive of the employees in said unit as a continuing request; and in the interim, it is expected and requested that all matters remain unchanged unless a mutual understanding has been reached with the union." In this conversation Dawson told Danuser that he was satisfied that Danuser was doing a better job with the tardiness and Danuser had now bought the tools he needed, so that the two basic reasons for withholding the wage increase no longer existed and the only thing standing in the way was the union litigation which prevented him from doing anything about a raise. Supervisor Paulie credibly testified that Dawson told Danuser that he (Dawson) did not feel there should be a union, that a union was not needed to settle differences with the employees because they were always free to come to his office, and that he had always gotten along very well with the employees. Letha Mor- rison, who worked in the outer office, overheard part of the conversation and in effect corroborated Paulie. She testified that Dawson said, "Why would you want some outside representative to come in and represent the employees here when I have al- ways been ready to talk with you. You can come to me any time rather than go through a bargaining agent." Though Morrison's original testimony was that she heard Dawson ask Danuser why he wanted a union, her further explanation as quoted above indicates that Dawson was merely stating his posi- tion with regard to the Union rather than inter- rogating Danuser concerning any union activities. As to other parts of the conversation there is a sharp conflict in testimony. Danuser testified as fol- lows: Before entering the outer office Dawson asked Danuser how he felt about the Union. Danuser answered that the way things were he was 100 percent for the Union. Dawson told Danuser that if Danuser would go up there and help vote the Union down that Dawson would see to it that Danuser got his dime raise. Danuser replied that he would not be the only one voting in the election and that Dawson would have to do something for the rest of the boys. Dawson answered that he had helped the community by moving to the plant and that if Danuser got out there and helped vote the Union down Dawson would schedule raises as he had done before. Danuser did not remember whether Paulie was standing there during this part of the conversation. ' The complaint alleges and the answer admits that the following persons are supervisors within the meaning of the Act Ralph Paulie, plant superin- tendent , LeRoy Rogers, foreman, and Earnestme Perkins, welding super- visor ' On cross-examination Danuser expanded his testimony by acknowledging that Dawson told him that raises could not be granted dur- ing the pendency of the election 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dawson categorically denied that he ever asked Danuser how he felt about the Union or told him that he would get a raise if he helped to vote the Union down. He further testified that Paulie was present during the entire conversation except for the first few minutes prior to his taking Danuser to the bulletin board. Paulie testified that he was present except for the initial part of the conversa- tion. Paulie also denied that Dawson asked Danuser how he felt about the Union or told him that he would get a raise if he voted against the Union. I credit Dawson's denial that he asked Danuser what he thought about the Union or that he told Danuser that he would get a raise if he helped vote the Union down. Danuser was not a reticent person and his intense advocacy of the Union was open and forthright. As is discussed further below, Danuser testified that about a week before the elec- tion he asked Supervisor Earnestine Perkins if she had a handkerchief because the election was going to be held shortly. In this context Dawson's testimony that he knew that Danuser was leading the organizational drive for the Union was credible as was Paulie's testimony that he knew that Danuser was one of the Union's leading people. With this background it would have been meaningless for Dawson to ask Danuser how he felt about the Union. Dawson did tell Danuser why he was against the Union and Danuser may have mis- interpreted a rhetorical question, which was part of Dawson's statement of position, as an interrogation. However, I do not believe that Dawson did inter- rogate Danuser. As to the alleged statement by Dawson that he would get Danuser the raise if Danuser voted against the Union, I also credit Dawson. The statement was allegedly made a few weeks before the election during a time of exten- sive campaigning. Danuser may or may not have been trying to set up Dawson for the future filing of objections or charges, but Dawson, who was fairly sophisticated in labor relations and who had been advised by counsel, must have considered such a possibility when he was speaking to the chief union adherent. An employer would not have to be as knowledgeable as Dawson to realize the danger of attempting to buy Danuser's vote with the promise of a raise, or to know that such an attempt would be an exercise of futility. In sum I credit Dawson's denial that he attempted to purchase Danuser's vote.5 Conclusions as to Danuser As I have found that Dawson did not interrogate Danuser about his union sympathies and did not promise Danuser a raise if the Union was rejected, I ' The Respondent in its brief states that Danuser should not be credited in part because of his failure to complete his application for a job at the time of his hire with regard to such matters as prior injuries On the other hand the General Counsel urges that Dawson should not be credited because about a year before the incident in question he interrogated em- will recommend that the parts of paragraphs 9(d) and (h) which allege such conduct be dismissed. With regard to paragraph 9(g) of the complaint which alleges that Respondent unlawfully shifted the onus of the Company's failure to grant a wage increase on to the Union, I will also recommend dismissal. I have found that Dawson did tell Danuser that the raise was not forthcoming because of the pendency of the election. Though this is not the same as blaming the Utiion for the failure to grant the wage increase, in certain circumstances such remarks would be a violation of the Act. The employees have the right under Section 7 of the Act to participate in the election procedure and an employer has no right to predicate either the grant- ing or withholding of any benefit on the exercise by employees of their rights under the Act. The Board has recently found that an employer interfered with the free choice of the employees in an election by making statements to employees concerning wage increases being withheld because of the pending election. Alton Bcx Board Company, 173 NLRB 744. As the Board held in The May Department Stores Company, d/bla Famous-Barr Company, 174 NLRB No. 109: ... An employer confronted with a union or- ganizing campaign should decide the question of granting or withholding benefits as he would if a union were not in the picture; if his course of action in granting or withholding benefits is prompted by the Union's presence, he violates the Act. Ordinarily an employer is free to unilaterally grant wage increases if there is no duty to bargain at the time the wage increases are granted and the deci- sion to grant the wage benefits is not prompted by the union's presence. SNC Manufacturing Co., Inc., 174 NLRB No. 31. However, an employer who grants a wage increase during the pendency of an election may be in the position where he has to jus- tify the wage increase in terms of established past practice in order to defend against the contention that the Union's presence prompted the wage in- crease. In the instant case Respondent's past prac- tice regarding wage increases could not have been used to justify granting Danuser a wage increase as the wage increase had been already delayed sub- stantially beyond the time it was due. Respondent indeed was on the horns of a dilemma when Danuser asked for a raise a few weeks before the election. If Respondent granted the wage increase it would have had great difficulty in justifying the raise in terms of past practice and a finding might well have been made that Respondent violated the Act. Instead Respondent denied the wage increase and now faces the allegation that a violation of the ployee White about the Union as is more fully set forth below I find neither of these arguments convincing and my credibility resolutions are based on my view of the logic of the situation and on my observation of the demeanor of the witness DAWSON METAL PRODUCTS, INC. Act stemmed from this denial. Another factor must also be considered. The Union in its letter of Au- gust 26 in which it demanded recognition in effect notified Respondent that it represented the em- ployees and requested Respondent not to make any unilateral changes in wages, hours, or terms and conditions of employment. If the General Counsel is correct in his contention that Respondent has had the duty to bargain with the Union since the demand for recognition , any wage increase made unilaterally after the duty to bargain arose would have been an additional violation of Section 8(a)(5) of the Act. To follow the General Coun- sel's theory through, Respondent would have vio- lated Section 8(a)(5) of the Act if it unilaterally granted Danuser the wage increase . It would seem anomalous to find a violation of Section 8(a)(1) of the Act stemming from Respondent's failure to grant the increase. Under all these circumstances I do not believe that Dawson's statements to Danuser, in which the pendency of the election was given as a reason for not granting a wage increase, violated Section 8(a)(1) of the Act. b. White-facts and conclusions Harley White has been an employee since Sep- tember 3. About a year before his date of hire he had unsuccessfully applied for work with Respon- dent. At that time Dawson asked him if he was a union organizer.' White testified that between Sep- tember 3 and 14, after Dawson had given a speech to a group of employees, Dawson approached him and asked him how he liked the job and how he felt about the Union. Dawson acknowledged that he told White that the Company's position was that a union was not needed but he specifically denied that he asked White his opinion about the Union. He testified that White volunteered the information that he (White) did not think a union was needed without any probing or questioning on Dawson's part I credit Dawson 's denial. I believe Dawson's assertion that he was very sensitive to the legal is- sues that could be raised shortly before the election and that he was extremely careful not to interrogate his employees concerning their union feelings. White was a very straightforward witness but he might mistakenly have implied a question from Dawson 's statement of position. As I have credited Dawson's denial- that he inter- rogated White about his union sympathies, I will recommend that the part of Section 9(d) of the complaint that so alleges be dismissed. c. McAllister-facts and conclusions Gary McAllister was employed in the miscellane- ous department on August 27. About September " Dawson 's recollection of this conversation was that he asked White if he was a paid union organizer This mcidentt is well outside the period of limitation set forth in Section I0(b) of the Act and is not alleged as a viola- 195 11, McAllister had a conversation with Dawson in which McAllister complained that employees who were hired after he was were put on more difficult machines . As a result of his conversation, McAl- lister was put on the night shift, operating a more difficult machine, instead of the day shift where he had previously worked. This was done after McAl- lister expressed his willingness to Dawson to accept the new assignment. Thereafter , because of certain family difficulties, McAllister decided he would rather be back on the day shift. On the night of the election, September 25, he approached Dawson, told him his family problem, and asked to be put back on days. Dawson testified that he told McAl- lister that he could not give him an answer just then but he would try to help him and that later an open- ing did arise and McAllister was transferred to days. McAllister testified that Dawson said, "Well, the election is in process. I can't make any state- ment at all. I mean I can't tell you what I can do for you because of the fact that the final returns of the Union haven't been tabulated." As this was the night of the election and Dawson had previously taken the position that changes had to be suspended during the election period, I credit McAllister's amplification of Dawson 's remark that any change had to wait until after the election. McAllister interpreted this remark to mean that Dawson would not have any say as to whether he worked on the day shift if the Union won the elec- tion. However, further in his testimony he stated that such an interpretation on his part was merely a speculation . In the context of the entire situation, I find that Dawson's remark simply indicated that he did not think the decision on a transfer would be appropriate on the night of the election. Having so found , I will recommend that para- graphs 9(f) and (k) which allege that Respondent promised to put an employee on the day shift if the Union were rejected and transferred an employee to the day shift because the Union was rejected be dismissed. d. Harris-facts and conclusions Employee Larry Harris had a conversation with Dawson about October 4, which was about a week after the election. Harris testified as follows: Dawson approached him and said that he had heard that Harris had voted for the Union. Harris replied, "Someone must have told you ." Dawson answered that he thought that he had. been pretty good to Harris and now Harris had turned against the Com- pany. Dawson testified that he spoke to Harris because he saw that something was bothering Harris and Harris did not have his old spark. According to Dawson , he asked Harris what was wrong, why he non in the complaint As background evidence , it does not appear that the discrepancy between the two versions is significant 427-258 O-LT - 74 - 14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had lost interest in his work , and why he was bitter toward the Company ; Harris just shrugged his shoulders and the Union was not mentioned. I credit Harris' version of the conversation. As is more fully set forth below , Dawson considered em- ployee bitterness toward the Company and em- ployee joining of a union to be synonymous con- cepts. The remarks are not "out of character" for Dawson and Harris' testimony was convincing. However Dawson 's statement that he heard Har- ris had voted for the Union and the implication that Harris was not loyal to Dawson fell short of establishing that Dawson violated Section 8(a)(1) of the Act. The remarks were not accompanied by any threat or promise and did not even necessarily call for an answer from Harris. Anyone to whom Harris confided his vote may have volunteered this information to Dawson and the implication is not warranted that Dawson was creating the impression of surveillance as alleged in paragraph 9(1) of the complaint. I will therefore recommend that para- graph 9 ( 1) be dismissed. 2. Plant Superintendent Ralph Paulie's remarks to Anderson Facts and Conclusions About the middle of September , Plant Superin- tendent Paulie had a conversation with employee Albert Anderson. Anderson testified as follows: Paulie spoke to Anderson at the punch press machine with no one else present and asked Ander- son's views on the union situation . When Anderson answered that it should be taken care of by secret ballot , Paulie responded the Company did not need a union and that a union took away the workers' in- centive to work for raises since the employees who did not work hard were raised just the same as the ones who worked harder . Paulie then said that he thought that since Anderson was a good worker and wanted to get in a tool and die department, An- derson would be better off without the Union and that Anderson could try to get the tool department job through hard work . Paulie also said that the foreman of the tool and die department was observ- ing Anderson and that Anderson had a good chance to get into the tool and die department if the Union did not get in. Paulie testified as follows: Anderson asked Paulie about getting into the tool and die department and Pauhe answered that he would talk to the super- visor of the tool and die department about it. An- derson asked how seniority worked and Paulie an- swered that it was by seniority and ability . Ander- son then asked if there would be stricter seniority if the Union came in and Paulie answered that he did not know anything about the Union . Paulie did not remember who brought up the subject of the Union . Paulie specifically denied that he asked An- derson what he thought about the Union and specifically denied that he told Anderson that An- derson had a good chance to get the transfer if the Union did not get in. I credit Anderson's version of the conversation. Paulie acknowledged that they spoke of the seniori- ty and ability criteria for filling a position in the tool and die department . He further testified, "The Union got into it some way, I don't recall whether it was me , him, or how , but it began with the seniority also, whether it would be strictly seniority if the Union got in." Paulie's statement later in his testimony that he told Anderson that he had "a good chance of getting into tool and die , but there was no mention of union one way or the other" is not fully consistent with his prior testimony . Ander- son's testimony regarding this conversation was convincing and is credited. Paragraph 9(d) of the complaint alleges inter- rogation in violation of Section 8(a)(1) of the Act by Paulie . Having found that Paulie did interrogate Anderson as to Anderson 's sympathy toward the Union, I further find that by such conduct Respon- dent violated Section 8(a)(1) of the Act. Section 9(c) of the complaint alleges that Respondent vio- lated Section 8(a)(1) through Paulie 's promise to an employee to transfer that employee to the tool and die department if the Union were rejected. The findings of fact set forth above do not warrant the conclusion that Anderson was promised a transfer if the Union were rejected but the credited evidence is that Paulie told Anderson that he had a good chance to get in the tool and die department if the Union did not get in. The unmistakable impli- cation of this remark is that Anderson 's chances would be good if the Union were voted out and bad if the Union were voted in. That was a promise of benefit to keep the Union out and was closely re- lated enough to paragraph 9(c) of the complaint to warrant the finding that the statement violated Sec- tion 8 ( a)(1) of the Act. 3. Welding Supervisor Earnestine L. Perkins' remarks to Danuser Facts and Conclusions About a week before the election of September 25 Donald Danuser, who was mentioned above as the mainstay of the union supporters in the plant, had a conversation with Welding Supervisor Ear- nestine Perkins. According to Danuser the conver- sation went as follows: Danuser started the exchange by asking Miss Perkins if she had a hand- kerchief because the election was going to be held shortly. Miss Perkins asked what they hoped to gain by getting the Union in. Danuser answered that they wanted a union shop, seniority rights, and a raise. Miss Perkins said that in her opinion Dawson would pull up stakes and move and that he had of- fers from other places to move . Danuser replied that if Dawson was planning to move they would DAWSON METAL PRODUCTS, INC. 197 not be wiring up new machines. Miss Perkins an- swered that Dawson makes snap decisions and that he had the backing to move. Miss Perkins' version of the conversation was dif- ferent: Danuser stopped Miss Perkins and asked her what she thought of the rumor going around that Dawson was going to move his plant back to Wichita. Miss Perkins answered that she did not know. Danuser said that he did not feel that Dawson could afford to move back. She responded that he afforded to move down and that even though she did not know anything about his finan- cial position she had never missed a paycheck in 4 years. She denied ever telling Danuser that Dawson would pull up stakes and leave town and she denied ever discussing the Union with Danuser. I credit Miss Perkins' version of the conversation. She was a direct, straightforward witnesses and im- pressed me as a person who would not have al- lowed herself to be teased by Danuser into making threatening remarks. Whether Perkins or Danuser was credited in the above conversation, my observation of the wit- nesses as they testified convinced me that it was Danuser who was trying to intimidate Perkins rather than the other way around. The second part of paragraph 9(i) of the complaint alleges that Respondent, through Miss Perkins,7 threatened to move the plant if the employees selected the Union as a collective-bargaining representative. As I have found that no such threat was made, I will recom- mend that that portion of the complaint be dismissed. 4. The conversations with Foreman Rogers Foreman LeRoy Rogers is a native of the Cam- denton, Missouri, area and has known most of the Respondent's employees on a personal basis for many years. Because of this he had a direct contact with many employees and he often had conversa- tions with them. Six employees testified to the con- versations they had with Rogers in which Respon- dent, through Rogers, allegedly violated Section 8(a)(1) of the Act. These employees were Donald Danuser, Harley White, Albert Anderson, Johnny Jackson, Gary McAllister, and John Walter Neftzger. a. Dan userfacts and conclusions About 2 weeks before the election of September 25 employee Danuser had a conversation with Su- pervisor Rogers. Danuser called Rogers over to his machine and said , "Roy, I'm going to be doing all right when the union goes in . I'll be getting higher money. All I've got to do is set here and watch this machine run." Rogers answered , "Well, if the union should go in, it wouldn't necessarily mean that you would get a raise in pay.... In some in- stances, it might even be reduced." Paragraph 9(j) of the complaint alleges that Respondent, through Supervisor Rogers, threatened to reduce wages if the employees selected the Union as their collective-bargaining representative. The only evidence produced to support that allega- tion was that relating to the Danuser-Rogers con- versation. That conversation when viewed in its en- tire context indicates that Danuser was baiting Rogers and that Rogers' rather mild reply was merely a defensive comment and in no sense a threat to interfere with the employees' Section 7 rights. I therefore will recommend that that allega- tion of the complaint be dismissed. b. Whitefacts and conclusions On September 14 or 15 Rogers had a conversa- tion with employee Harley White. White testified that Rogers approached him and asked him what he thought about the Union, he responded that he did not care one way or another and Rogers then said that no matter how he felt he should not say anything about it. Rogers testified that he had no recollection of such a conversation with White and that he could neither admit nor deny it. I credit White's testimony. I find that Rogers' interrogation of White con- cerning his union sympathies was a violation of Sec- tion 8(a)(1) of the Act as alleged in paragraph 9(d) of the complaint. This interrogation was not an iso- lated instance but flowed from Respondent's known union animus and fits into the pattern of the other unfair labor practices found herein. Cf. Dryden Manufacturing Company, Inc., d/b/a Truck Body Mfg. Co., 174 NLRB No. 46. c. Anderson-facts and conclusions Employee Albert Anderson is the same person who testified concerning the conversation with Pau- lie set forth above about a possible transfer to the tool and die department. Anderson also testified to a conversation he had with Supervisor Rogers in the middle part of September. For some time be- fore that conversation Anderson had been in the habit of sitting with employees Jones and Danuser during break periods. As set forth above President Dawson and Supervisor Paulie acknowledged that they knew that Danuser was a key figure in the Union's organizational drive. Anderson testified that on the date in question Rogers approached him at his machine and told him that he had better stay away from Jones and Danuser or he would be in trouble and that if he wanted to get into the tool and die department he had better vote against the Union. r This finding of fact is based on the credited testimony of Rogers Danuser's testimony, though less detailed, was not substantially different In direct examination Danuser testified that Rogers told him that wages would be cut if the Union was voted in However in cross-examination he changed the "would" to a "could " 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rogers testified that he did have a conversation with Anderson in which he told Anderson that An- derson should stay away from Danuser and Jones, but that he made that remark because Danuser and, to a lesser extent, Jones kept waving employees over to their machines to talk to them and that this was interfering with production. Rogers did not directly respond to Anderson's testimony that Rogers told Anderson to vote against the Union if he wanted to get in the tool and die department. Rogers acknowledged that he knew Danuser and Jones were union supporters. I credit Anderson's version of the conversation. Paragraph 9(b) of the complaint alleges that Rogers threatened to prevent a transfer to the tool and die department unless the employees rejected the Union. I find that Rogers' statement to Ander- son described above was such a threat and there- fore was in violat;oi, of Section 8(a)(1) of the Act. Paragraph 9(a) of the complaint alleges that Rogers threatened employees with trouble if they did not stay away from employees who supported the Union. Rogers' statement to Anderson that Ander- son should stay away from Jones and Danuser was made with knowledge that Danuser and Jones were union supporters and was in the same conversation in which Rogers indicated to Anderson that the only way Anderson could get in the tool and die de- partment was by v')ting against the Union. In these circumstances Rogers' explanation of his remark concerning Anderson's talking to Danuser and Jones is unpersuasive and I find that the remark was intended to keep Anderson away from the union adherents rather than to safeguard produc- tion . I find that Respondent by such conduct vio- lated Section 8(a)(1) of the Act. d. Jackson-facts and conclusions A week or two before the election of September 25 Johnny Jackson and Supervisor Rogers had a discussion about the possibility of Jackson becom- ing a leadman. Later the same day they had a second conversation in which Rogers asked Jackson what he thought about the Union. Jackson answered that it had its good points and its bad points to which Rogers replied, "Of course, you know that if the union goes in we'll have to choose our lead man through seniority instead of the one we want. "8 Paragraph 9(d) of the complaint alleges that Su- pervisor Rogers interrogated employees about their union sympathies. I find that Rogers' questioning of Jackson concerning what Jackson thought about " This finding is based on the credited testimony of Jackson Rogers acknowledged that he had a conversation with Jackson in which he told Jackson that Jackson was doing a good job but he testified he did not recall talking about Jackson 's being a leadman and did not recall anything in the conversation about the Union or seniority Jackson's testimony was direct and convincing This finding is made on the credited testimony of McAllister Rogers recounted a conversation with McAllister in which McAllister asked how the Union was an interrogation in violation of Sec- tion 8(a)(1) of the Act. Paragraph 9(e) of the com- plaint alleges that Rogers promised an employee a promotion to leadman if he rejected the Union. Though Rogers' statement to Jackson, that seniority and not the Company' s wishes would control promotion tc leadman status, fell short of a promise to promote Jackson if the Union were rejected, the statement clearly implied that Jackson's chances of getting the promotion would be better without the Union. That promise of additional consideration of a promotion for Jackson if the Union were rejected was a promise of benefit and a coercion of Jackson in the exercise of his rights under Section 7 of the Act and therefore violated Section 8(a)(1) of the Act. e. McAllister Two or three weeks before the election of Sep- tember 25 Supervisor Rogers had a conversation with employee Gary McAllister at McAllister's machine with no one else present. Rogers asked McAllister how he felt about the Union. McAllister answered that he was not sure. Rogers then said that he was sure the Union would hurt a lot more than it would help.' I find that Supervisor Rogers interrogated em- ployee McAllister regarding his union sympathies in violation of Section 8(a)(1) of the Act. f. Neftzger Within the 3-week period before the election of September 25 Supervisor Rogers had a conversa- tion with employee John Walter Neftzger. Rogers asked Neftzger if he thought the Union would pass and Neftzger replied , "Heck yes." Neftzger then asked Rogers what Rogers thought about it and Rogers answered that he did not know much about the Union.10 Though this conversation does have the ring of familiar chit-chat, it falls into a pattern of other in- terrogation by Supervisor Rogers and I find that it also violates Section 8(a)(1) of the Act. 5. The conversations between Personnel Manager Jack Kuhlmann and Letha Morrison Facts and Conclusions Jack Kuhlmann is Respondent's personnel manager . It was stipulated that he is a supervisor within the meaning of the Act. Letha Morrison, he could get ahead with the Company, Rogers told McAllister to talk to Dawson or Paulie , McAllister asked about the union situation, and Rogers answered , "Well, it is my understanding union is based on seniority, and it is my opinion this company would be better off without a union " Rogers neither admitted nor denied the alleged interrogation of McAllister ` This finding is based on the credited testimony of Neftzger Rogers did not recall whether or not the Union was mentioned in this conversation DAWSON METAL PRODUCTS, INC. who worked in the plant office from January to November 2 had three conversations with Kuhl- mann concerning applicants for employment. The first conversation was the first week in September. An ad had been running for women employees and a woman had come to the office to apply. Morrison took the application to Kuhlmann who said, "Well I'm not going to hire this woman." Morrison asked why not and he answered, "Her husband is a union steward where he works." The second conversation took place in the mid- dle of September also in Kuhlmann's office with no one else present. This time a man had come to apply for a job and Morrison took the application to Kuhlmann. Kuhlmann said that he would not hire the applicant because the applicant had worked for a company in Kansas City that had a strong union and that company had had union problems. The third conversation took place in the latter part of October, also in Kuhlmann's office with no one else present. An applicant for employment had come to the office and Morrison took the applica- tion to Kuhlmann. Kuhlmann looked at the applica- tion, slammed it on the desk, and said, "Look who he has for reference." Morrison asked what was wrong with him and Kuhlmann answered, "Well, he is one of those guys." Morrison asked what guys and he answered, "Well, he's with this union bunch." Morrison replied, "Well, do you mean that you wouldn't hire anyone if they were a friend of someone who was a union supporter." Kuhlmann answered, "Well, now, Letha you know better than that." With all three applicants Kuhlmann told Mor- rison to tell them that he would call them if he wanted to talk to them. The Company was hiring at the time." Morrison was a secretary and office worker. She would prepare shipping papers and payroll. Though in May she had been told by Dawson that she would be in charge of office work and she had received a 40-cent raise about August 19, the only one to whom she assigned work at any time was employee Edna Hall. Except for employee Hall, Morrison had nothing to do with the hiring of em- ployees. When a job applicant came in she would fill out the application and give it to whomever was doing the hiring. For some time that was Supervisor Paulie and then it was Supervisor Kuhlmann. With regard to Edna Hall, who ultimately replaced Mor- rison when she was discharged, Kuhlmann asked Morrison to interview employees for a clerical job that was similar to Morrison's. Morrison did inter- view potential employees and in Morrison's words they "mutually agreed" on hiring Mrs. Hall. In part of her testimony Morrison stated that she used her " The above is based on the credited testimony of Morrison Kuhlmann testified that he had no recollection of any of the three conversations to which Morrison testified It was pointed out to Kuhlmann that the remarks which he allegedly made were not the sort that would be easily forgotten if 199 own discretion in assigning tvork to employee Hall. However she later expanded her testimony to make it clear that she only assigned work to Hall from August 27 until the first part of October and that this assignment was based on the fact that Hall had little clerical experience and that it was necessary for Morrison to give her instructions concerning the forms to be filled out in shipping and invoicing. As soon as Hall learned her duties Morrison stopped assigning her work. I find that Morrison's relation to Hall was one of a more experienced employee to a less experienced employee. Her duties were clerical and not super- visory in nature. Though she did participate in the decision to hire Hall, this was clearly an atypical situation where an employee who was familiar with the work to be done helped pick a new employee to do related work. Morrison was not vested with the type of independent discretion in the performance of her duties with relation to other employees so as to warrant the finding that she was a supervisor. Cf. Willis Shaw Frozen Food Express, Inc., 173 NLRB 487. I find that Respondent, through Kuhlmann's statements to Morrison on three separate occa- sions, to the effect that applicants for employment would not be hired because of their union connec- tions, violated Section 8(a)(1),,of the Act as alleged in paragraph 9(m) of the amended complaint. 6. Conclusions as to the alleged violations of Section 8(a)(1) of the Act Recapitulating the findings made above I find that Respondent violated Section 8(a)(1) of the Act by: (a) Interrogating employees concerning their sympathy toward the Union, as established by the interrogation of employee Anderson by Plant Su- perintendent Paulie, and the interrogation of em- ployees White, Jackson, McAllister, and Neftzger by Foreman Rogers, all occurring in mid-Sep- tember. (b) Promising benefits to employees if the Union were rejected, as established by (I) Paulie's state- ment in mid-September to employee Anderson that Anderson had a good chance to get in the tool and die department if the Union were rejected and (2) Foreman Rogers' statement to employee Jackson in mid-September that Jackson's chances of making leadman would be better if the Union were re- jected. (c) Threatening harm to employees if they en- gaged in union activity or if the Union were voted in, as established by (1) Foreman Rogers' state- ment to employee Anderson in mid-September that if Anderson wanted to get in the tool and die de- in fact they were made and he was asked if he could deny that such state- ments were made, he merely repeated that he had no recollection Mor- rison 's testimony was unequivocal and convincing 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partment he had better vote against the Union and (2) Rogers' statement to Anderson in mid-Sep- tember that Anderson would be in trouble unless he stayed away from the union supporters. (d) Interfering with employees ' rights guaran- teed in Section 7 of the Act by Personnel Manager Kuhlmann 's statements to employee Morrison the first week in September , in mid-September, and again in the latter part of October to the effect that applicants would not be hired because of their union connections. As to all allegations of paragraph 9 of the com- plaint other than those found above to have merit, I recommend dismissal. B. The Objections Respondent filed the following Objections to the Conduct of the Election: 1. The Company through its officers and agents held meetings with its employees during working hours. During these meetings the Company made threats and promises and coer- cive statements to their employees to discourage their interest in the above-named labor organization. 2. On or about September 13, 1968 the Com- pany through its officers and agents promised a raise to an employee in order to discourage his interest in the above -named labor organization. 3. On or about September 23, 1968 the Com- pany permitted a local business man to come into their plant to talk to the employees in order to discourage their interest in the above- named labor organization. 4. On September 25, 1968 the Company placed a derogatory , inflammatory open letter in a local newspaper timed in such a manner that the above -named labor organization had no time to reply. 5. On September 25, 1968 the date of the election , the Company permitted the referred to newspaper open letter to be placed on the plant bulletin board and the above-named labor organization had no opportunity to answer. Though the Regional Director ordered that the hearing on all the objections be consolidated with the complaint case in the instant matter, no evidence was introduced at the hearing relating to objections 1, 3, 4, or 5. None of those objections parallel matters alleged in the complaint . It appears -that both the Union and the General Counsel have abandoned those objections and I will recommend that they be overruled for failure of proof. Objec- tion 2 appears to be a restatement in different words of paragraph 9(h) of the complaint which al- leges that Respondent promised an employee a raise if the Union were rejected. The only evidence in the record relating to objection 2 and paragraph 9(h) of the complaint is that of the conversation between Dawson and Danuser which is discussed in section A(1), (a), above. My credibility findings with regard to that conversation lead to the conclu- sion that Dawson did not promise an employee a raise if the Union were rejected and I therefore recommended that paragraph 9(h) of the complaint be dismissed . In evaluating the same testimony I must also conclude that Dawson did not promise a raise to an employee in order to discourage his in- terest in the Union as alleged in objection 2 and I therefore recommend that objection 2 be over- ruled. As I have recommended that all of the specific objections to the conduct of the election be over- ruled, the question is presented whether an election can be set aside based on conduct that violates Sec- tion 8(a)(1) as alleged in a complaint when that conduct is not alleged in the objections . Based on the cases cited below I conclude that matters litigated in the complaint case can form a basis for setting aside the election even though those matters were not raised by the objections In International Shoe Company, 123 NLRB 682, the Board held that the jurisdiction of a Regional Director in making postelection investigations was not limited to the specific issues raised by the parties. In Fashion Fair, Inc., 157 NLRB 1645, enfd. in pertinent part 399 F.2d 764, 767 (C.A. 6), a consolidated case such as the instant one, in which the question was raised whether the discharge of an employee ( Black ) could be used to set aside an election even though the discharge had not been raised as an objection , the Board held: While Black's discharge was not alleged as an objection by the Union, an election may be set aside because of objectionable conduct occur- ring in the critical period even though it was not specifically alleged as an objection by the objecting party. International Shoe Company, 123 NLRB 682 , 684, and cases cited therein. Moreover , in a consolidated proceeding such as this, Respondents cannot claim that they were prejudiced in any respect by the failure of the Union to allege Black 's discharge as an ob- jection . They had ample notice of the need to defend against such allegation and have indeed presented a vigorous defense to this allegation. The court of appeals enforcing that part of the Board's Decision held: Respondents argue that it was improper for the Board to consider the discharge of Black as a ground for setting aside the election because it was not one of the objections to the election specifically filed by the union . Their position is that the Board cannot consider any action of the employer as a ground for setting aside an election unless such ground is specifically al- leged by the union in its timely filed objections. Section 102.69 of the Board's Rules and Regu- lations, 29 C.F.R. 102.69 provides , in part: DAWSON METAL PRODUCTS, INC. 201 Within 5 days after the tally of ballots has been furnished, any party may file with the regional director an original and three copies of objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor. The Supreme Court has said with regard to unfair labor practice charges filed with the Board, that such charge is not to be measured by the standards ap- plicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry ... Once its ju- risdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protect- ing public rights which Congress has con- ferred upon it. There can be no justifica- tion for confining such an inquiry to the precise particularizations of a charge. Na- tional Labor Relations Board v. Fant Milling Co., 360 U.S. 301, 307-308 ... [44 LRRM 2236]. See also, National Lico- rice Co. v. National Labor Relations Board, 309 U.S. 350.... [6 LRRM 674]. This Court recently said in N.L.R.B. v. Tennes- see Packers, Inc., Frosty Morn Division, . . 379 F.2d 172, 179 [65 LRRM 2619], cert. den. 389 U.S. 958 ... [66 LRRM 2507], "where related facts concerning misconduct are un- covered in the investigation of the objections filed by a party, it is proper for the Director and the Board to set aside an election on these facts." See also, N.L.R.B. v. Dal-Tex Optical Company [310 F.2d 58, 51 LRRM 2608] (C.A. 5). In the instant case although the objections to the election filed by the union did not mention the discharge of Black, the unfair labor prac- tice charges filed the same day, and thereafter consolidated for hearing and decision, alleged an 8(a)(3) violation based on his discharge. Respondents were fully aware of the charges leveled against them. Their defense to the 8(a)(3) violation would be identical to their defense to an objection based on the same pre- election conduct. Therefore they suffered no prejudice by the Board's ruling that Black's discharge was an additional ground for setting aside the election. The critical period during which objectionable conduct related to the election can be considered is from September 3, the date the petition was filed to September 25, the date of the election. The Ideal Electric and Many facturing Company, 134 NLRB 1275; Goodyear Tire and Rubber Company, 138 NLRB 453. As set forth above I have found that Respondent engaged in numerous violations of Sec- tion 8 (a)(1) during the critical period. In Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786, the Board held: Conduct violative of Section 8(a)(1) is a for- tiori, conduct which interferes with the exer- cise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the "laboratory con- ditions" 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). This policy has been consistently followed. Peerless Bread Machinery Corporation, 174 NLRB No. 53, Tilton Tanning Corp., 164 NLRB 1168; Playskool Manufacturing Company, 140 NLRB 1417. I find that Respondent's conduct, in violation of Section 8(a)(1) of the Act which is summarized in section A(6), (a), (b), and (c), above,12 and all of which occurred during the critical period, was of such a nature as to preclude the laboratory condi- tions needed for a fair election and I therefore recommend that the election held on September 25 be set aside. C. The Alleged Violation of Section 8(a)(5) of the Act 1. The facts a. The appropriate unit and the demand for recognition Respondent began production at the Camdenton plant in July 1967. At that time Respondent was also operating a 'plant in Wichita, Kansas. Since July 1967 Respondent has been moving its produc- tion and manufacturing facilities from Wichita to Camdenton. By August the Wichita plant had been consolidated into the Camdenton plant. The complaint alleges and the answer admits that: All production and maintenance employees employed by the Respondent at the plant, but excluding office clerical employees, guards and supervisors as defined in the Act, is a unit ap- propriate for collective bargaining within the meaning of Section 9(b) of the Act. By letter dated August 26, signed by Eugene F. Eyink, business representative of the Union, the Union notified Respondent that it represented a 12 1 have not considered Personnel Manager Kuhlmann's remarks to em- ployee Morrison about applicants not being hired because of their union connections , in evaluating the question of whether the election should be set aside Though two of the remarks were made within the critical period and I have found Morrison to be an employee, she is not in the bargaining unit and there is no evidence that she repeated the remarks to anyone in the bargaining unit at a time when it could have affected the conduct of the election 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of Respondent's production and main- tenance employees and requested Respondent to recognize and bargain with it.13 b. The number of employees in the bargaining unit and the Union's majority Supervisor Kuhlmann received the Union's request for recognition on August 27 and on that day called President Dawson to inform him of the contents of the letter. As the date that the Union's majority status must be evaluated is that on which the Respondent received notice that the Union claimed to represent a majority of the employees, an evaluation must be made as of August 27. Rea Construction Company, 137 NLRB 1769; Allegheny Pepsi-Cola Bottling Company, 134 NLRB 388, enfd. 312 F.2d 529 (C.A. 3). The parties stipulated on the record the names of all employees in the bar- gaining unit on various dates. On August 27 there were 22 employees in the bargaining unit including 1 employee that was hired on August 27. In addi- tion the parties stipulated that three employees who had been working in Respondent's Wichita plant were scheduled before August 26 to transfer to the Camdenton plant and were in fact transferred between August 27 and September 7. If these three employees were not actually employed in the bar- gaining unit in Camdenton on August 27, they would have to be excluded from the computation on that date. However the stipulation is not definite as to when the transfer was made between August 27 and September 7, so it is possible that some were transferred on August 27. Thus the employee complement on August 27 was between 22 and 25. On August 23 and 24, 14 employees authorized the Union to bargain on their behalf by executing authorization cards which read: YES, I WANT THE IAM I, the undersigned, an employee of (Com- pany) ........ hereby authorize the Interna- tional Association of Machinists and ii The letter reads This is to advise that a majority of your Production and Maintenance employees, including Plant Clerical employees, have authorized and designated Local Lodge 1316 of the International Association of Machinists , AFL-CIO, as their bargaining representative in all matters concerning wages , hours of work , working conditions, and other con- ditions of employment Should there be any good faith doubt on your part of the union's majority status, please advise and the union will immediately submit proof of our majority to some mutually agreeable impartial third party such as a minister , rabbi, priest, or some other disinterested party for the purpose of ascertaining same This will serve as the union's request that the company recognize and bargain collectively with the union and negotiate to a conclusion the terms of a collective bargaining agreement regarding all matters per- taining to wages , hours of work , working conditions , and other condi- tions of employment Please treat this request for recognition as the majority representative of the employees in said unit as a continuing request , and in the in- terim , it is expected and requested that all matters remain unchanged unless a mutual understanding has been reached with the union We Aerospace Workers (IAM) to act as my collec- tive bargaining agent with the company for wages, hours and working conditions. It is my understanding that I will be invited to join the IAM. Name ....... Date .... Address ..... City . . Dept ... Shift . . Phone ... Classification ....... Sign Here X ....... NOTE: This authorization to be SIGNED and DATED IN EMPLOYEE'S OWN HANDWRITING. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW.14 The cards were duly authenticated and admitted in evidence.15 Though additional employees signed cards after August 27,16 these additional signatures and the question of whether the Union's demand was continuing in nature need not be considered as the Union had a majority on August 27, the date that Respondent received the demand, of 14 em- ployees out of either 22 or 25 in the bargaining unit. Respondent in its brief argues that the cards signed by the employees authorized only the Inter- national Association of Machinists and Aerospace Workers (IAM) and not its Local Lodge 1316 to bargain on their behalf. Respondent urges therefore that the Union, that is the Local, does not represent a majority of the employees. I find this contention without substance. The Local is the appropriate operating arm of the International. It was the Local that undertook the organizational drive of Respon- dent's employees, requested recognition, and ap- peared on the ballot at the election. There is no evidence that any employee was misled or confused in this regard. Under these circumstances I find that the designation of the parent organization was a valid designation of its affiliate. C. A. Webb, et al., stand ready and willing to meet with your designated representative at an early date , mutually agreeable to the parties , to conclude such negotiations " One employee , Dale Wilson. testified that he was told by another em- ployee , Don Netz, that the purpose of the card was to get the Union down to see what they had to offer However, Wilson also testified that he read the card before signing it The card is unequivocal About August 24 Eu- gene Eyink , the business representative of the Union , had a meeting with a number of the employees of Respondent Eyink told them that if a majority of the employees signed cards he would send a letter to Respondent requesting recognition One of the employees asked what would happen if Respondent did not recognize the Union and Eyink answered that in that case they would have to request the NLRB for an election The cards were clearly valid Levi Strauss & Co , 172 NLRB No 57 " Employees Jones, Wilson, Burch, Netz, Danuser, Jackson, and Neftzger authenticated their own cards Employee Danuser credibly testified that he saw the following employees sign cards Eaton, Justice, Morrison, Goldsberry , Epperhardt, Denny, and Brown '" Employee White testified that he signed the card on August 5 but as he was hired on August 29 1 believe he was in error and in fact signed on Sep- tember 5 DAWSON METAL PRODUCTS, INC. d/b/a Weaver Wintark , 87 NLRB 35 1; Cummer- Graham Company , 90 NLRB 722 , order vacated on other grounds 95 NLRB 175, Knickerbocker Plastic Co., Inc., 104 NLRB 514 , enfd . 218 F.2d 9 i 7. c. Respondent 's response to the Union 's request for recognition After Supervisor Kuhlmann read the demand letter to Dawson on August 27 , Dawson instructed Kuhlmann not to do or say anything about the letter until he spoke to him again . The same day Dawson called Kuhlmann back and told him not to do or say anything with regard to the letter and specifically not to ask any questions of the em- ployees. Dawson decided to ask for an election, as he put it: ... on the basis that I was not even in Cam- denton during the occurrence of these events and that I seriously doubted the allegation that they represented a majority of our people on the basis of my own contacts with the people which indicated that we had an excellent morale in the Camdenton plant , that the peo- ple liked their work , they enjoyed working for Dawson Metal Products and it was not com- patible with the claim of the letter that these people in the two weeks I was absent from the Camdenton plant could make a complete turn around into a completely opposite position of feeling that they needed a union in the plant in order to accomplish or correct inequities or correct anything that might be wrong. 01 August 30 Dawson wrote a letter to the Union in which he stated: This will acknowledge receipt of your letter dated August 26, 1968. We doubt your claim that you represent a majority of our employees in an appropriate unit , and we question the manner in which any alleged representation was obtained . In addition , we question the re- liability of any designation of representation made by an employee , other than through a secret ballot election conducted by the Na- tional Labor Relations Board . For this reason, we have filed with the National Labor Rela- tions Board a Petition for an Election, a copy of which is enclosed . We hope that you will join with us in cooperating with the National Labor Relations Board so that the employees may make a determination by secret ballot whether they wish to be represented by your union. On September 3 Respondent filed a petition for the election. 2. Analysis and conclusion as to the refusal-to- bargain allegation As I have concluded that the election was invalid and must be set aside , the election is not a bar to 203 the processing of the refusal-to-bargain allegation of the complaint, which must be decided on its own merits. Bernel Foam , 146 NLRB 1277; Irving Air Chute Company, 149 NLRB 627, enfd. 350 F.2d 176 (C.A. 2). General Counsel has established that the Union requested bargaining in an appropriate unit at a time when it represented a noncoerced majority of the Respondent 's employees. The Respondent had an obligation to bargain with the Union unless it had a good-faith doubt that the Union represented a majority . The criteria for determining whether an employer is acting in good or bad faith in questioning a union's majority is set forth in Hammond & Irving, Incorporated, 154 NLRB 1071, 1073, where the Board held: The Board has long held that an employer may insist upon a Board election as proof of a union 's majority if it has a reasonable basis for a bona fide doubt as to the union 's representa- tive status in an appropriate unit . If, however, the employer has no such good -faith doubt, but refuses to bargain with the majority representa- tive of its employees because it rejects the col- lective-bargaining principle or desires to gain time within which to undermine the union and dissipate its majority , such conduct constitutes a violation of Section 8(a)(5) of the Act. [Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified on other grounds 185 F.2d 732 (C.A.D.C.), cert . denied 341 U.S. 914.] In determining whether the employer's action was taken to achieve either of the said invalid pur- poses, the Board considers all the surrounding circumstances as well as direct evidence of motivation . Absent such direct evidence, where extensive violations of the Act accom- pany the refusal to grant recognition, they evidence the employer's unlawful motive and an inference of bad faith is justified. The Board has often found that widespread flagrant violations of Section 8(a)(1) evidence bad faith so as to warrant a refusal-to-bargain finding. Jerome T. Kane, d/b/a Kane Bag Supply Company, 173 NLRB 1203; Bauman Chevrolet , Inc., 173 NLRB 474, Heck's Inc., 172 NLRB No. 255; Beaver Bros. Baking Co., Inc., d/b/a American Beauty Bak- ing Co., 171 NLRB No. 98. However , the Board has also held that violations of Section 8(a)(1) that were narrow in scope did not establish employer's bad faith. Thus in J. C. Penney Company, Inc., 172 NLRB No. 82, a case in which two supervisors threatened to fire employees because they were wearing union buttons and a supervisor unlawfully interrogated an employee , the Board held: Respondent 's illegal conduct limited to the statements [of two supervisors ] was not so flagrant as to vitiate its good faith in question- ing the Union's majority , or necessarily have had the object of destroying the Union's majority status. [Footnote omitted.] See also Fashion Fair , Inc., 173 NLRB 1421; Graf- 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton Boat Co., Inc., 173 NLRB 999; Merritt Packing and Crafting Service, Inc., 172 NLRB No. 202. When Respondent received the Union's request for recognition it expeditiously petitioned for an election and consented to an election without the delay of a hearing. Even though Plant Superinten- dent Paulie and Foreman Rogers did make state- ments in violation of Section 8(a)(1) as found in sections A(2) and (4), above, those violations were limited in scope and impact, and by themselves would have been insufficient to establish that the Respondent lacked a good-faith doubt that the Union represented a majority of the employees. However the statements of Personnel Manager Kuhlmann to employee Morrison put the matter in a different light.- Kuhlmann's remarks to Morrison put into perspective Respondent's hiring policies so as to indicate that a fair election among Respon- dent's employees is impossible. Kuhlmann's state- ments indicated that Respondent rejected three ap- plicants because Kuhlmann thought it likely that they might be prounion. Such conduct undermines the very foundations of the election procedure and evidences not only an attempt to dissipate the Union's majority but a complete rejection of the collective-bargaining principle. The complaint only alleges as a violation of the Act Kuhlmann's remark about the discrimination in hiring and does not al- lege the discrimination in itself as a violation of Section 8(a)(3) of the Act. However the question of the Respondent's good-faith doubt as to the Union's majority is in issue and in that Kuhlmann's remarks indicate a rejection of the collective-bar- gaining principle they tend to show a lack of good- faith doubt of the Union's majority status. In considering the question of good-faith doubt, Respondent's response to the Union's request for recognition must also be evaluated. Respondent's President Dawson testified in substance that he questioned the Union's majority status because his employees had excellent morale and liked their work, and he did not believe that the employees had made a complete turnaround in their feelings so as to need a union to correct whatever was wrong. The clear implication of Dawson's remarks is that employees who like their work do not be- lieve in collective bargaining while employees who are unhappy do. This questionable philosophy is a poor foundation upon which to rest a good-faith be- lief that the Union does not have a majority. Considering all the above factors and particularly the statements of Personnel Manager Kuhlmann relating to Respondent's refusal to hire employees who might be prounion I conclude that Respondent rejected the collective-bargaining principle and manifested its lack of good-faith doubt that the Union represented a majority of its employees. Respondent's conduct set forth in section B, above, prevented a fair election on September 25 and its antiunion hiring policies evidenced by Kuhlmann's statements to Morrison effectively preclude a fair election in the future. Respondent cannot destroy the very conditions needed for a fair election and at the same time successfully maintain that an election is the sole means for determining the desires of its employees. I therefore find that Respondent vio- lated Section 8(a)(5) and (1) of the Act since Au- gust 27 by refusing to bargain with the Union. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As for Case 17-CA-3686 Having found that the Respondent has engaged in certain unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist therefrom and upon request bar- gain collectively with the Union as the exclusive representative of all employees in the unit set forth above and, if an understanding is reached, embody such understanding in a signed agreement. As to Case 17-RM-397 Having found that the Union's specific objections to the conduct of the election are without merit but that conduct of the Respondent which has been fully litigated in this proceeding did affect the con- duct of the election and prevent a fair election, I will recommend that the specific objections set forth in the Union's objections to the conduct of the election be overruled but that the election be set aside. As I have found that Respondent violated Section 8(a)(5) of the Act I will recommend that the petition for an election be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. DAWSON METAL PRODUCTS, INC. 205 3. The following employees constitute a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees employed by Respondent at its Camdenton, Missouri, plant, but excluding office clerical employees, guards and supervisors as defined in the Act. 4. At all times since August 27 the Union has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 5. By refusing on August 27 and thereafter to bargain with the Union as the exclusive representa- tive of the employees in the said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct and by interrogating its employees about their union sympathies, by promising them benefits if the Union were rejected, by threatening harm to them if they engaged in union activity or if they selected the Union as their bargaining agent, and by telling an employee that applicants for employment would not be hired because of their union connections, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has vio- lated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. By engaging in the activities set forth above in section III, B, Respondent interfered with the freedom of choice of its 'employees in their selec- tion of a bargaining representative in the election of September 25. RECOMMENDED ORDER As to Case 17-RM-397 I recommend that the specific objections listed in the Union's Objections to Conduct of Election be overruled but that, because of the conduct of the Respondent that was fully litigated in this proceed- ing and which interfered with the conduct of the election and prevented a fair election, the election be set aside and the petition upon which the elec- tion was based be dismissed. As to Case 17-CA-3686 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, Dawson Metal Products. Inc., shall: 1. Cease and desist from: (a) Interrogating its employees concerning their sympathy toward Local Lodge 1316, International Association of Machinists and Aerospace Workers, AFL-CIO. (b) Promising benefits to employees if they re- ject said Union. (c) Threatening harm to employees if they en- gage in activity on behalf of said Union or select said Union as their bargaining agent. (d) Telling employees that applicants for em- ployment would not be hired because of their union connections. (e) Refusing to recognize and bargain with said Union as the exclusive representative of its em- ployees in the following unit: All production and maintenance employees employed by Respondent at its Camdenton, Missouri, plant, but excluding office clerical employees, guards and supervisors as defined in the Act. (f) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Upon request bargain collectively with Local Lodge 1316, International Association of Machin- ists and Aerospace Workers, AFL-CIO, as the ex- clusive representative of all employees in the ap- propriate unit described above and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its Camdenton, Missouri, plant, co- pies of the attached notice marked "Appendix B."17 Copies of said notice, on forms provided by the Re- gional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees 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. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.18 it 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" and in the first paragraph of the notice the words "A Trial Examiner of shall be deleted 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 the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 206 DECISIONS OF NATIONAL APPENDIX B 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: After a trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT ask you your opinion about Local Lodge 1316, International Association of Machinists and Aerospace Workers, AFL-CIO. WE WILL NOT promise you benefits if you re- ject that Union. WE WILL NOT threaten harm to you if you engage in activities on behalf of that Union or select that Union as your collective -bargaining representative. LABOR RELATIONS BOARD WE WILL NOT tell employees that applicants for employment will not be hired because of their union connections. WE WILL recognize Local Lodge 1316, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, as the only collective -bargaining representative of our em- ployees in the bargaining unit which is All production and maintenance em- ployees employed by us at our Cam- denton, Missouri, plant, but excluding of- fice clerical employees , guards and super- visors as defined in the Act. WE WILL bargain upon request with that Union on wages , hours and conditions of em- ployment and any agreement we reach will be put in writing and signed. DAWSON METAL PRODUCTS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5282.