Texas Transport & Terminal Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Transport & Terminal Co., Inc. and Texports Stevedore Company, Inc.' and Office & Profes- sional Employees International Union, Local 27, AFL-CIO. Case 23-CA-3372 December 24, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 2, 1970, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examin- er's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the briefs, and the entire record in the case, and finds merit in certain of the General Counsel's exceptions. Accordingly, the Board adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent herewith. At the request of her coworkers, employee Doris Baker contacted the Union in mid-May 19692 and, on June 10, two union representatives met with Respon- dent's office clerical employees to begin the organiza- tional campaign. By June 13, 32 of the 51 employees in the unit found appropriate by the Trial Examiner3 had signed unambiguous cards authorizing the Union to be their exclusive collective-bargaining representa- tive. By letter dated June 26, the Union requested recognition and, on June 30, Respondent informed the Union that, because it believed that the Union's assertion of majority status was erroneous, it would 1 Texas Transport & Terminal and Texports operate a steamship agency and provide stevedoring services to vessels in Houston , Texas The Trial Examiner found that, for purposes of this case, the two companies constitute a single employer , herein called Respondent file a representation petition with the Board, rather than recognize the Union on the basis of a card majority. Respondent had begun hearing rumors about the Union in mid-May 1969, and, as noted by the Trial Examiner, when "Respondent's officials learned of the Union's campaign its watchword became Action." On June 9, Respondent's vice president, Charles A. McEniry, upon learning from Respondent's person- nel manager that employees Baker and Quiroga had been contacted by the Union, interviewed them, asking, inter alia, what they had heard from the Union, how they felt about it, and how the employees felt about the Union. Between that date and approxi- mately June 16, several of Respondent's supervisors also interrogated the employees working in their respective departments about the Union. The employ- ees were asked by their supervisors how they felt about the Union and their responses were reported to McEniry. Moreover, in the course of the interrogation of employee Robert Pratt by Line Manager A. B. Kohut, the latter asked if Pratt would change his mind about the Union if he received a wage increase and, upon receiving a negative reply, Kohut commented that Respondent "might have to clean the slate and hire new employees that felt differently about the subject of unions." Employees were also told by Comptroller K. S. Trostmann that a result of unionization would be that if they sought employment at other steamship companies "they may have problems securing em- ployment," even though Trostmann admitted that he had no basis in fact for predicting the reaction of other employers to the unionization of Respondent's office help. About the same time that the supervisors interrogat- ed the employees in their departments, the supervisors read them a statement prepared by Respondent's personnel manager in which Respondent reminded the clerical employees that during the then recently concluded longshoremen strike the employees were kept on the payroll even though there was little to do. On June 13, McEniry was authorized by Respon- dent's president, H. W. Roberts, during a telephone conversation, to grant wage increases effective Satur- day, June 14. On Monday and Tuesday, June 16 and 17, all but I of the 42 employees who received salary increases were personally informed of the fact in interviews with Respondent's personnel manager. Of the 42 employees who were given increases ranging in amount from $10 to $150 per month, 30 were in the appropriate unit. 2 All dates are 1969 unless otherwise indicated 3 We agree with the Trial Examiner's unit determination and his decision to exclude line managers from the unit because they are supervisors within the meaning of the Act 187 NLRB No. 78 TEXAS TRANSPORT & TERMINAL CO. In a letter to employees dated June 18, Vice President McEniry reminded the clerical employees about the company policy that kept them on the payroll while the longshoremen were on strike even though there was no work for them and noted that "this policy would change, resulting in considerable hardship to you" if the Union were successful. Within a week of granting the wage increases, and a few days after sending the letter to employees, McEniry, on June 23, 24, and 25. speaking from prepared notes, met with groups of from four to six employees to discuss the Union's campaign. McEniry met with virtually all the unit employees during that period. Among other topics discussed by him at the group meetings, McEniry often mentioned the fact that during the 102-day longshore strike from January 1969 to April 1969, the office employees continued to work despite the absence of things to do. McEniry told the employees that this policy of working during the longshore strike would not have been the case had the clerical employees belonged to a union. He noted the situation at another shipping company where the unionized clerical employees did not work during the strike. McEniry also commented that while Respondent's sick leave policy had been to pay an ill employee for the duration of his bona fide illness, he was not sure what the Union's policy would be. However, McEniry told at least one of the groups with whom he met that under a union contract sick leave would be limited. Also, McEniry commented on the fact that with a union Respondent would be more strict in its attendance policy, including the reinstalla- tion of the timeclock which McEniry had removed upon becoming head of the Houston office. As noted above, on June 30 Respondent denied the Union's June 26 request for recognition. A petition in Case 23-RM-232 was filed by Respondent on July 1, but conduct of an election was prevented by the instant proceeding. After Respondent's refusal to recognize the Union, the Union called a strike on July 8, but only nine of the unit members participated. They eventually returned to work without incident. Meanwhile, on July 10 the Regional Director for Region 23 received a letter signed by 32 of Respon- dent's employees, 12 of whom had previously signed authorization cards, which stated that the Union was "non-beneficial" to their interests and that they wanted to express their choice through an election. In a petition received by Region 23 on August 1, 36 employees, including 18 who had signed cards, revoked the Union's authority to represent them for purposes of collective bargaining. 1. We agree with the Trial Examiner's finding that by systematically interrogating its employees about 4 The record indicates that poor to 1968 virtually all increases were given in January In 1968 Respondent granted 9 increases in June, 17 in 467 union activities, threatening employee Pratt with job loss for supporting the Union, warning employees that other shipping industry employers would not hire Respondent's employees if they selected the Union, and offering employee Pratt a wage increase to change his mind about the Union, Respondent violated Section 8(a)(1) of the Act. 2. The Trial Examiner found that the June 14 wage increases were a "part of the normal exercise of Respondent's business function" and were not grant- ed to interfere with the Union's organizational campaign in violation of Section 8(a)(1) of the Act. We disagree for the following reasons. Admittedly, since January 1969 Respondent's executives had been discussing the possibility of salary increases for the Houston office employees involved herein. The minutes of Respondent's Janu- ary management meeting disclose that because of the longshore strike then in progress Respondent decided to defer the customary January salary increases.4 In March 1969, it was agreed at a similar meeting of Respondent's executive officers that Respondent's president would receive salary recommendations for further consideration. In April 1969, pursuant to the prior month's management decision, McEniry wrote to Roberts, Respondent's president, describing Houston's person- nel problems and indicating that most employees who resigned did so because of money. When the long- shore strike ended in April 1969, Respondent gave raises ranging in amount from $15 to $75 per month to 32 employees, of whom 18 were in the appropriate unit herein. Thereafter, on May 8, McEniry again wrote to Roberts and stated that "not only are our personnel problems still very much with us, but the time is close (about two/three months) when we will have to give serious consideration to granting salary increases to those individuals who did not receive increases last month." At the May 1969 executives' meeting following McEniry's letter to Roberts, according to the minutes, it was "decided only that personnel are, indeed, hard to find, and salaries steadily increase. General policy is to hire good people at good salaries . . .." Thus, it is clear that at no time prior to the June 14 increases did Respondent's management discuss specifically when to grant the Houston employees increases in addition to those customary January increases which were deferred until April because of the longshore strike. As noted above, 30 of the 42 employees given increases on June 14 were in the appropriate unit and 13 of the 30 had also received April raises of between $15 and $25 per month. Interestingly, McEniry's May July, and 2 in August. We do not find that this established that Respondent had a pattern of granting midyear increases only in June 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 letter only indicated that consideration of such increases would be due in July or August ("the time is close (about two/three months)") and that such increases would be for those employees who had received none in April 1969. While the Trial Examiner characterized the increas- es as "a part of the normal exercise of the Company's business function," the record indicates that Respon- dent had no intention of giving Houston office clerical employees additional increases in June 1969, at least prior to the beginning of the Union's organizational campaign on June 10. None of the management meetings ever involved a discussion of a specific timetable for granting wage increases in 1969, save deferral of the customary January increases. In fact, at the meeting immediately prior to the June 14 increases, all that was decided was that Respondent's general policy was to hire good people at good salaries. Moreover, contrary to McEniry's May 8 suggestion to Roberts that additional increases be limited to those employees who had received none in April 1969, several employees who had also received April raises were granted increases in June. McEniry also only suggested consideration of this proposal in July or August 1969. Finally, as we have found, Respondent did not have an established policy of granting midyear increases only in the month of June. The only new factor which arose between the May meeting and McEniry's May 8 letter and the June increases was the start of the Union's organizational campaign on June 10. We, therefore, conclude from the above, that when Respondent learned of the Union's campaign it decided to accelerate implemen- tation of the vaguely discussed proposal to grant Houston office clerical employees additional wage increases. Such "conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculat- ed to have that effect"5 is clearly violative of the Act. Accordingly, we find that by granting its employees wage increases on June 14 Respondent violated Section 8(a)(1) of the Act. Our dissenting colleague's disagreement with our finding that Respondent granted wage increases on June 14 for an unlawful purpose is based on two grounds: (1) Respondent made no explicit reference to the organizational campaign in granting the increases; and (2) our finding that the increases were unlawfully granted is based solely on their timing. In our experience, an employer rarely couples a wage increase intented to affect employee desires during an organizational campaign with an explicit avowal of such purpose. The absence of such a statement does not make the announcement lawful, however. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405; N. L. R. B. v. Pyne Moulding Corp., 226 F.2d 818 (C.A. 2); Indiana Metal Products Corp. v. N.L.R.B., 202 F.2d 613 (C.A. 7). Employees are well able to understand the purpose of well-timed grants of benefits without being told by their grantor that the increases are intended to dissuade them from unioni- zation. "The danger inherent in well-timed increases in benefits is the suggestion of a fist inside a velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." Exchange Parts, 375 U.S. at 409. An employer's purpose in granting wage increases during an organizational campaign may, of course, be proved by direct admissions of the employer. But it may also be deduced, as here, from all the conduct of the employer, particularly other unfair labor prac- tices. "Other unlawful conduct may often be an indication of the motive behind a grant of benefits while an election is pending, and to that extent it is relevant to the legality of the grant . ..." Exchange Parts, supra, 410. We have not based our finding of unlawful purpose solely on the timing of the grant, as stated by our dissenting colleague. Rather such finding is based on the findings made by the Trial Examiner, with whom our colleague agrees, that Respondent committed other contemporaneous un- fair labor practices designed to undermine the Union, and our additional finding that certain speeches made by Respondent constituted unfair labor practices. Also, Respondent's inability to justify its decision to grant raises the same week that the organizational campaign began, after previously having left the increases in the posture of not being granted at this time but postponed (and then only "for considera- tion") until July or August, we believe warrants the inference based on all the evidence that the granting of the wage increases was part and parcel of the "same course of illegal conduct embarked upon earlier to defeat the Union." Pyne Moulding Corp., supra, 821. The threats were the stick, the grant of wage increases the carrot. Together they were intended to destroy the Union's majority status. As the events proved, Respondent was successful in its efforts. 3. The Trial Examiner found that McEniry's speeches of June 23, 24, and 25 contained proper expressions of opinion and fact and, thus, did not violate Section 8(a)(1) of the Act. We disagree for the following reasons. In finding McEmry's comments lawful, the Trial Examiner relied on the Supreme Court's statement in 5 NLRB v Exchange Parts Co, 375 U S 405, 409 TEXAS TRANSPORT & TERMINAL CO. 469 N.L.R.B v. Gissel Packing Co., that an employer "may even make a prediction as to the precise effect he believes unionization will have on his company." However, the Court also stated that "the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstr- ably probable consequences beyond his control " 7 The Court concluded that if there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.8 Here, there is nothing in the record to support the assumption underlying McEniry's assertion that the Union would not allow its members to work during future longshore strikes even if Respondent were willing to retain the office clerical employees on the payroll while there was no work for them. Nor, for that matter, did Respondent have any basis in fact for assuming that the Union would demand through negotiations for a collective-bargaining agreement stricter sick leave and attendance policies. In fact, it is more probable that the Union would have desired to retain these benevolent policies of Respondent. Thus, when McEniry on June 23, 24, and 25 told the employees that sick leave and attendance policies would be stricter with a union and that had the clerical employees belonged to a union they would not have worked during the longshore strike, it is clear that Respondent was attempting to convey to the clerical employees the idea that, if the Union were selected, Respondent would eliminate these benevo- lent policies. These statements are not reasonable predictions based on available facts, but are warnings of action that Respondent could or could not initiate solely on its own depending on how the employees acted toward the Union. Such clear threats of retaliation for selecting the Union are unlawful. Accordingly, we find that by threatening its employees with reprisals for selecting the Union Respondent violated Section 8(a)(1) of the Act. 4. The Trial Examiner found that, on the basis of the 8(a)(1) violations which he found, a bargaining order was not warranted to remedy Respondent's unfair labor practices and that Respondent had not violated Section 8(a)(5) of the Act. We disagree. As noted above, by June 13 the Union had received signed authorization cards from 32 of the 51 employ- ees in the appropriate unit, and 34 by the time it demanded recognition on June 26. The Union thus had a clear majority when Respondent refused to recognize it as the bargaining representative of the office clerical employees on June 30. Between the beginning of the Union's organization- al campaign on June 10 and Respondent's refusal to bargain on June 30, Respondent committed numer- ous violations of Section 8(a)(1) of the Act, including offering and granting wage increases to unit members, systematically interrogating employees concerning their attitude toward the Union, voicing the unfound- ed belief that other shipping industry employers would not hire persons who had previously worked in an organized establishment, and threatening employ- ees with the loss of benefits (sick leave, etc.) if the Union were successful. As the Court in Gissel said, in approving the Board's use of a bargaining order in cases involving, as here, less "outrageous" and "pervasive" employer unfair labor practices, if the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, through present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue.9 Here, the purpose and effect of Respondent's unlaw- ful activities were clearly such as to make the clerical employees fearful for their jobs and the benefits attendant thereon if the Union were selected by them, and also to impress upon the employees that Respon- dent could be benevolent without a union, by granting them wage increases. We find from the above that Respondent's extensive violations of Section 8(a)(1) of the Act could reason- ably be expected to have the effect of undermining the Union's majority and destroying the conditions necessary to the holding of a free and fair election. In our opinion, traditional remedies would not erase the effects of these violations or insure a fair election. The unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of represent- ation than would an election, in our opinion. We conclude that, in order to protect the statutory rights and interests of employees, to remedy the violations of Section 8(a)(1) of the Act committed, and to effectuate the policies of the Act, it is essential that Respondent, Texas Transport & Terminal Co., Inc. and Texports Stevedore Company, Inc., be ordered to recognize and bargain with the Union as the statutory representative of its employees for purposes of collective bargaining. Accordingly, we find that by 6 395 U S 575.618 1 Ibid 6 Ibid 9 Gissel, supra, In 6 at 614-615. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusing to recognize and bargain collectively with the Union on or after June 30, 1969, Respondent violated Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization with the meaning of the Act. 3. The job classifications at Respondent's Hous- ton, Texas, office of traffic representative, outbound and inbound clerks, typists, multilith operators, stenographers, freight cashiers, secretaries, payroll clerks, accounting clerk-typists, office boys, junior stenographers, clerk-typists, full cargo clerks, file clerks, PBX operators, and teletype operators, but excluding guards, confidential secretaries, the assist- ant to full cargo manager, the assistants to the operations managers for Texas and Houston, line managers, and all other supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing on and after June 30, 1969, to recognize and bargain collectively with Office & Professional Employees International Union, Local 27, AFL-CIO, Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Texas Transport & Terminal Co., Inc. and Texports Stevedore Company, Inc., Houston , Texas, their officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Office & Professional Employees International Union, Local 27, AFL-CIO, as the 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a exclusive representative of its employees in the following appropriate unit: The job classifications at Respondent's Houston, Texas, office of traffic representative, outbound and inbound clerks, typists, multilith operators, stenographers, freight cashiers, secretaries, payroll clerks, accounting clerk-typists, office boys, junior stenographers, clerk-typists, full cargo clerks, file clerks, PBX operators, and teletype operators, but excluding, guards, confidential secretaries, the assistant to full cargo manager, the assistants to the operations managers for Texas and Houston, line managers, and all other supervisors as defined in the Act. (b) Threatening or engaging in reprisals to employ- ees if they join or assist a labor organization, or select a representative for collective bargaining. (c) Interrogating employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (d) Granting employees wage increases in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (e) Threatening employees with the possibility of discharge if the Union were selected to represent them. (f) Warning employees of the possibility of reduced job opportunities in the shipping industry if the Union were selected to represent them. (g) Offering employees wage increases to dissuade them from retaining their union membership. (h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all the employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its operations in Houston, Texas, copies of the attached notice marked "Appendix A." io Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by Respondent to Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" TEXAS TRANSPORT & TERMINAL CO insure that such notices are not altered, defaced, or covered by any other material (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith CHAIRMAN MILLER, dissenting I would affirm , in its entirety, the Trial Examiner's Decision and adopt all of his findings, conclusions, and recommendations As to most of the issues involved, I see no need to elaborate in detail, inasmuch as the findings and rationale are detailed in the Trial Examiner's Deci- sion, with which I agree It may be appropriate, however, to comment briefly on the majority opinion's treatment of the wage increase issue That issue, simply stated, is whether the June 14 increases were granted for bona fide business reasons or whether they were made, as the majority properly phrases it, "with the express purpose of impinging upon their [the employees'] freedom of choice for or against unionization " The record here was replete with evidence of the business justification for the increases, including the unrefuted testimony that the Company was experi- encing a serious labor turnover problem as demon- strated by the fact that from January 1968 to April 1969 the Company employed 48 people and that during that same time 45 of these 48 left the employ of the Company There is not a scintilla of evidence in the record to the effect that the Company, when it granted the increases, made any reference whatever to the pending union organizational effort or attempted, during the campaign, to capitalize on the increases by, for example, suggesting in any way that the said increases should be considered by employees in deciding whether or not to vote for the Union In this state of the record, the Trial Examiner, after having heard all of the witnesses, concluded that the granting of the increases did not violate Section 8(a)(1) of the Act The majority opinion reverses the Trial Examiner solely on the basis that the timing of the increases occurred within a few days after the start of the Union's organizational campaign While such timing may reasonably create a doubt as to motiva- tion, it does not in my view, standing alone, demonstrate an "express purpose of impinging upon [the employees') freedom of choice " Rather, in my opinion, when General Counsel introduced proof of the timing, the burden shifted to the Respondent to show affirmatively a business justification which, absent such suspicious timing, it would not have been required to make Once the Respondent as it did here, introduces unrefuted testimony of a business justifica- tion, it then becomes the duty of General Counsel to introduce independent evidence of improper motiva- 471 tion Compare N L R B v Great Dane Trailers, Inc, 388 U S 26 In the absence of any such evidence, I would hold that General Counsel failed to meet his burden of proof and would dismiss the allegations of the complaint which allege an 8(a)(l) violation based on the wage increases The remaining violations found by the Trial Examiner are clearly insufficient to support a Gissel bargaining order, as the Trial Examiner appropriately found APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Office & Professional Employees Union, Local 27, AFL-CIO, as the exclusive bargaining representa- tive of our employees in the bargaining unit found appropriate by the National Labor Relations Board WE WILL NOT unlawfully question you concern- ing your union membership or sentiments WE WILL NOT threaten you with the possibility of discharge if a union is selected to represent you WE WILL NOT threaten you with stricter sick leave, attendance , and work-during-strikes poli- cies if a union is selected to represent you WE WILL NOT offer, or grant, you wage increases to induce you to withdraw your union member- ship WE WILL NOT warn you of the possibility of reduced job opportunities in the shipping industry if you select a union to represent you WE WILL NOT in any like or related manner interfere with , restrain, or coerce you in the exercise of your rights to self -organization or to form, join, or assist any labor organization, or to bargain collectively with us concerning terms or conditions of employment through the representa- tive you select, or to refrain from any of these activities if you so choose You and all our employees are free to become or remain, or to refrain from becoming, members of or withdrawing membership in any labor organization TEXAS TRANSPORT & TERMINAL CO, INC (Employer) Dated By (Representative ) (Title) 472 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD TEXPORTS STEVEDORE COMPANY, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon charges filed on June 30, 1969, by Office & Professional Employees International Union, Local 27, AFL-CIO, against Texas Transport & Terminal Co., Inc. and Texports Stevedore Company, Inc., herein called the Respondent, the Regional Director for Region 23 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on October 29, 1969, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151. et seq. herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Houston, Texas, where the parties were present , represented by counsel, and afforded full opportunity to be heard, present oral argument, and file briefs. Briefs were filed by Respondent and counsel for the General Counsel on February 24, 1969. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me ,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Texas Transport & Terminal Co., Inc., is a Delaware corporation with its principal office and place of business at New Orleans, Louisiana, and an office and place of business in Houston, Texas, where it is engaged in the business of a steamship agency. Texports Stevedore Company, Inc., is a Texas corporation with its principal office and place of business in Houston , Texas, where it is engaged in the business of providing stevedoring services to vessels. It was stipulated at the trial of this matter that Texas Transport and Texports have a common labor policy, occupy joint offices, utilize a point accounting system, and constitute a unitary operation at Houston . Furthermore, the Companies have officers in common, Charles A. McEmry testifying that he is vice president of both and K. S. Trostman testifying that he is secretary-treasurer of Texports and comptroller of Texas Transport. In addition, certain of the supervisors, for example, John Meyer, direct employees of both Texas Transport and Texports; and the line managers, those individuals responsible for operations relating to specific ship lines, have frequent occasion to direct the activities of employees of both companies. Upon the foregoing, and in particular, upon the admitted existence of a common labor relations policy, I would conclude and find that Texas Transport and Texports Stevedoring, henceforth referred to herein as Respondent, constitute a single employer for the purposes of the resolution of the issues present in this case.2 It is admitted that Respondent annually, in the course and conduct of its operations at Houston and elsewhere throughout the United States, receives revenue in excess of $50,000 for the performance of service for customers located outside the State of Texas , said customers being engaged in the business of operating ocean-going vessels in interstate and foreign commerce . Accordingly, upon the foregoing I conclude and 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 It is admitted by the parties and I accordingly conclude and find that Office & Professional Employees Internation- al Union, Local 27, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ISSUES 1. Interrogation , threats, and a promise of a raise as interference , restraint, and coercion. 2. The quantum of employer misconduct necessary to establish that a majority has been undermined or to render a fair election improbable. IV. THE UNFAIR LABOR PRACTICES A. Sequence of Events The most recent effort to organize Respondent's office employees commenced in mid-May 1969 on the initiative of employee Doris Baker who had been numbered among the opposition in earlier campaigns in 1963 and 1967. After determining that interest in a union existed among the employees Mrs. Baker wrote to the Union and soon thereafter was visited in her home by Union Business Representative Jack Langford and Mike Buzbee, the local business agent. Thereafter Mrs. Baker signed an applica- tion for union membership which also authorized the Union to act as her collective-bargaining representative. At a meeting held thereafter on June 10, Langford and Buzbee addressed the employees on the benefits of the Union, passed out authorization cards to the employees for I Cf Bishop and Malco Inc , 159 NLRB 1159, 1161 2 Mary K Gordon T/A Sun Cleaners, 180 NLRB 465 TEXAS TRANSPORT & TERMINAL CO. their signatures, and, according to a sworn statement provided a Board agent by employee David Long, informed the employees that if a majority signed the cards and "if the Company consented to a card check, they would use the cards signed for that purpose." He continued by saying that should the Company not consent "it would go to an election, at which time everyone could decide for theirselves [sic ] in privacy whether they wanted a union or whether they didn't want it." Thirty-four employees signed authorization cards and returned them to the Union's representatives. This number included not only those solicited at the June 10 meeting but those who had signed before and after. On June 26, 1969, the Union wrote to Respondent's vice president, Charles W. McEniry, requesting majority recognition, as follows: This is to advise that a majority of all office clerical employees employed at your Houston operation, but excluding all other employees, guards, watchmen, professional employees, confidential employees, and supervisors, as defined in the Act, have selected the Office & Professional Employees International Union, Local 27, AFL-CIO as their collective bargaining representative in all matters pertaining to wages, hours of work, working conditions and other terms and conditions of employment. Therefore, this is to request that your company recognize the aforementioned Union as the Bargaining representative for said employees in the above de- scribed unit. We are prepared and are now offering to demonstrate our majority status to you through a card check of the employees who have designated and authorized this Union to act as their collective bargaining representative. We will agree for any responsible disinterested person, such as a Minister or a Rabbi, or a member of the Federal Mediation and Conciliation Service to make this card check. Please treat this request for recognition as the majority representative of the employees in said unit as a continuing request. No other person or organization now represents a majority of the above described unit, and you are hereby cautioned against entering into any contract or any collective bargaining negotiations with any other organization presuming to act as agent for or in behalf of any such employees. You are further cautioned to take no unilateral action in regard to rates of pay, hours of work, and all other conditions of employment without first contacting the Office & Professional Employees International Union, Local 27, AFL-CIO and giving them a chance to meet and bargain on any such changes. This will serve as the Union's request that the company bargain collectively with the Union and negotiate to a conclusion the terms of a collective bargaining agree- ment regarding all matters pertaining to wages, hours of work, working conditions and other conditions of employment. We stand ready and willing to prove our majority status and request that you contact me within seventy two (72) hours by phone or letter at the above address and phone number, or contact Mr. Jack Langford, International 473 Representative at the Downtowner Motel, CA 8-0911, Room 705. Respectfully submitted, Mike Buzbee, Business Representative In reply on June 30 Respondent, by Vice President McEniry, rejected the Union's claim stating: We have your advices that a majority of the office clerical employees at our Houston offices have selected the Office & Professional Employees International Union AFL-CIO, Local 27, as their bargaining representative, and your request for recognition. We believe you are in error in your assertion that the union has such a majority, and we refuse to recognize it as a bargaining representative. We will at once request an election by the National Labor Relations Board, at which we feel sure our views will be proven correct. Yours very truly, TEXAS TRANSPORT & TERMINAL CO., INC. TEXPORTS STEVEDORE COMPANY, INC. By Charles McEniry /s/ Vice President On the following day, July 1, 1969, Respondent filed a petition with the Board in Case 23-RM-232 for an election among its employees to determine their preference for the Union as their bargaining representative. Thereafter on July 11 Respondent filed a first amended petition which differed from the initial petition only in the added allegation that it had been picketed by the Union since July 8. Accompanying this document was Respondent's motion for expedited election . For reasons which will become clear hereafter the election was never held. B. Respondent's Reaction to the Organizing Campaign Beginning in mid-May rumors came to Personnel Manager White's attention with increasing frequency that the Union was seeking to organize the employees. In fact, according to Mrs. White, a number of the employees came to her for advice on the subject of the Union. On the morning of June 9, in the course of a routine conversation in her office, Mrs. White learned from employee Rudolph Quiroga that he had been called at his home by someone from the Union. Shortly thereafter, employee Doris Baker, whose duties brought her to Mrs. White's office frequently , engaged in a conversation concerning the Union during the course of which Baker, according to Mrs. White, volunteered that "someone came to see me," without further identifying her visitor. Employee Baker described the incident in greater detail. Thus whereas Mrs. White mentioned simply that "something again came up about the Union," Mrs. Baker credibly testified that Mrs. White asked her several times during the conversation, as she had periodically during the preceding 2 or 3 weeks, if she had heard from the Union. When Baker replied that the union representative had visited her and that she had listened to what they had to say 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. White displayed surprise, saying she thought that Baker would be against the Union as she had been previously. Mrs. White immediately reported these conversations to Vice President McEniry who summoned the two employees, both known to him for their "pro-company" sentiments in earlier organizing campaigns.3 At this meeting, with Mrs. White present, McEntry asked Quiroga if he wished to add anything to the information he had already given to Mrs. White, and he replied, according to McEniry, that he had nothing to add. Quiroga, however, testified that he was asked how he felt about the Union and Quiroga had replied that at that time he did not know. I accept Quiroga's version. When he spoke to Mrs. Baker, McEniry asked her if she had any knowledge of union activities, or if she had been contacted, and she replied that someone had visited her at her home on the previous Saturday. Then McEniry inquired if the employees had contacted the Union, or the Union had sought them out, and she told him it was they who sought the Union. McEniry replied that he did not particularly care for a union in the office, although he did not object to unions generally, working with them as they were on the waterfront. He did not think a union could supply them with anymore help in the office, a problem that was then critical (infra, sec. IV, Q. When Mrs. White asked what they were going to do about it, McEniry replied that "if they want a union I guess there is nothing further we can do about it." He also reminded Mrs. Baker that the Company had favored the office employees by keeping them on the job during a recent strike on the docks involving the International Longshoreman's Association (ILA).' Immediately following his conversations with Baker and Quiroga, Vice President McEniry called Respondent's president, Harold Roberts, told him of the Union's activity among the office personnel, and suggested that they communicate with their attorney. Roberts concurred. At this point it was decided that McEniry should meet with groups of employees, as had been suggested to him by Personnel Manager White and a number of employees themselves. In point of time, however, McEniry did not meet with the employee group until later in the month (infra, sec. IV, D) Meanwhile he and other members of management engaged in a number of activities calculated to stem the organizing drive. First, in McEniry's absence on or about June 10 or II Mrs. White gave a prepared statement to each of the supervisors to be read to the employees in their respective departments. The statement read as follows: It has come to our attention that a union is endeavoring to organize the employees of this office again. 3 McEmry's testimony gives the impression that both Quiroga and Baker were present together during the respective conversations which followed their summons to McEniry's office Mrs White's testimony does not elucidate this point But both Baker and Quiroga specifically testified that one was not present while the other was in McEniry's office While I do not consider this variant substantial and credit McEmry generally, I am disposed to accept the testimony of the two employees that they met separately with McEniry and Mrs White 4 The foregoing account is a synthesis of the substantially mutually corroborated testimony of McEniry, Mrs White, Mrs Baker, and Quiroga, Those of you who have worked here for some time know that we have beat this attempt twice and we strongly oppose a union representing the employees in this office for reasons that should be obvious to you. All of you will remember that for several months the longshoremen were on strike and none of them earned any money. The Union didn't support them but all that time we paid you for staying here when there was little or no work to do. If you organize a union and such a strike occurs you can see what happened to the longshoremen and there is a possibility that that will happen to you because a strike by office employees would shut down our shipping operations as well. There is one other item that I want to tell you about and that is this: If at some union meeting or if someone approaches you and asks you to sign a card, I implore you not to do so because since the last time we had an organizing campaign here the law has changed and if the union secures the signature of more than 50 per cent of our employees, as bargaining representatives, you will have a union whether you want it or not. Remember this when they ask you to sign the card because we are opposed to a union and will resist it with every legal means. Supervisors testifying at the hearing stated that they had read the statement as requested. Thereafter some of them bespoke themselves at some length on the subject of the Union. Thus, several days after reading the statement Comptroller K. S Trostmann, by his own account, called employees of his department together and told them that management was aware that the "Union was trying to unionize the office force." He spoke to them briefly of the benefits the Company provided them, referring particularly to pensions and hospitalization and vacation plans. He went on to consider with them the consequences of unionization of the employees and the effect that this would have on their future employment elsewhere. Thus if they should at some future time seek a job with another steamship line "they may have problems securing employ- ment." Trostmann admitted at the hearing, however, that he knew of no employer who refused to employ union members. Thereafter he spoke to most of the employees individually in his office, at McEniry's request, as did the other supervisors. During the course of these individual conferences, 13 in number, Trostmann asked each employee his feeling towards the Union, giving them the choice of not answering. This he understood to be the substance of McEniry's instructions to him. Upon learning the employees' sentiments toward the Union he reported his findings to McEniry as requested. Line Manager A. B. Kohut,5 as did each of the supervisors, addressed his employees several days after the reading of the statement provided by Mrs. White (supra). taking into account variations which I accept as the consequences of passing time and fading recollection 5 The position of line manager, as described by Vice President McEntry, includes the responsibility for the operations of a specific steamship line in its dealings with the Company Clerical employees handling matters concerning this line would be responsible to the line manager who directs and assigns their work , grants them time off, and attends supervisory meetings Upon the whole record, and particularly upon the testimony of McEniry, Mrs White, and employee Robert L Pratt, I conclude and find that line managers employed by the Company, including A B Kohut, are TEXAS TRANSPORT & TERMINAL CO. 475 Employee Robert L. Pratt testified that he and his group of employees were read the statement by Assistant Local Manager John Duderstadt. Thereafter, on or about June 16, Pratt and his immediate supervisor, A. B. Kohut, had a private conversation in the latter's office which he initiated by saying that "he had been requested by the higher-ups to speak to people under him" "and get their views on the Union, pro and con." Kohut then asked Pratt his union views, and when Pratt told him he was for the Union he asked him why. Pratt told him he felt that he deserved more money. Kohut then asked Pratt if his salary were raised to $400 a month would he change his mind. Pratt told him that under the circumstances by which he would receive the raise it would not make any difference to him and he would still prefer the Union. Whereupon Kohut stated that "he felt like the Company might have to clean the slate, those were his exact words, clean the slate, and hire new employees that felt differently about the subject of unions."6 C. The Pay Raises Contemporaneously with the incidents detailed above the Company granted raises to the number of 40 on June 14, pursuant to a decision made on the previous day, Friday, June 13. Each one of the employees receiving a raise, excepting only Quiroga who was on vacation, was personally notified by Mrs. White during the 2 days which followed. In the case of Quiroga, Mrs. White notified him by telephone. Because of the significance which the granting of a pay raise on this particular date bears to the complaint allegations of interference, restraint, and coer- cion, it is appropriate at this juncture to consider Respondent's detailed explanation of the economics involved. Thus it would appear by the credited testimony of Respondent's officials called as witnesses by the General Counsel that the granting of 40 pay increases to Respon- dent's employees was neither a spontaneous nor an isolated action. On the contrary, I am persuaded that Respondent, like many other employers, had been experiencing critical shortages among clerical employees as a result of constant turnover and difficulty of replacement. Minutes of high level management meetings of the Respondent reflected a continuing concern for the problem and a need for solving it by higher wages. Thus at a meeting in St. Louis in early January 1969 the need for salary increases in the Texas and New York offices was considered but decision was postponed pending the settlement of the then current ILA strike. Present at this meeting was Respondent President Roberts as well as Vice President McEniry and the chairman of the board. Again at a meeting in Philadelphia on April 4, 1969, minutes reflect that salary increases and rising costs were "minutely examined for a considerable length of time." And thereafter at a similar meeting in Dallas in mid-May the subject of personnel shortage and rising wages was again discussed. Meanwhile in early May a comprehensive study of the office personnel situation was prepared by Personnel Manager White for McEniry. Therein, as in her credited testimony before me, she detailed the problems involved in recruiting, training, and retaining competent office help. She cited numerous cases of "quits" and related each to the Company's inability to meet the employees' salary requirement. In conclusion she recommended that serious consideration be given to an increase in the salary schedule to avoid the expense of retraining and loss of efficiency. On April 10, prior to Mrs. White's study, McEniry wrote to President Roberts in New Orleans detailing the circumstances of inadequate salary as the reason for the resignation of five key employees. Again on May 8 McEniry wrote to Roberts on the subject of inadequate salaries, referred to raises that had been given to some employees in April and stated that "the time is close (about two/three months) when he will have to give serious consideration to granting salary increases to those individu- als who did not receive increases last month." In this letter McEniry went into extensive detail to describe the need for a revision of the salary structure to achieve stability of employment and efficiency. Finally on June 13, McEniry wrote Roberts to advise him of the resignation of three more employees for reasons of money. In addition, McEniry credibly testified, he had numerous telephone conversations with Roberts and their attorneys on this same subject of departing personnel and a need for pay increases. Finally on June 13 President Roberts, by telephone, authorized the granting of wage increases effective on the following day and, after consultation with his attorneys, McEniry put the raises into effect. It appears from the documents in evidence that raises had generally been granted annually to employees in January. A departure from this practice began in 1968 when a substantial portion of them were given in midyear, a change which McEniry described as a new policy of granting increases. In 1969 the raises intended for January were deferred because of the ILA strike then in effect on the docks and its consequent economic effect on the Company. At the end of the strike in April some of the raises due in January were given to employees. Because of the losses incurred as a result of the strike many of these raises, according to Mrs. White, were "token raises because we couldn't afford to do anything else," and this she explained to the recipients. Some of these employees received another raise with the June group and a review of the schedule in evidence supports Mrs. White's testimony that their April "token raises" were small when compared with the April raises of employees who got none at all in June. Furthermore, from a review of the documents in evidence which detail the pay raises over the past 5 years, it is clear that the policy of annual raises was one of long standing, and that those most recently given were not disproportion- ately higher than in previous years. All that appears to be different is the timing of the granting of the raises, beginning first in 1968, and continuing with the 1969 raises where the January group was deferred to April, where the raise in April was smaller, and where the remaining employees received raises in mid-June, when the others were given supplements to their April raise. In consideration of the circumstances allegedly attending that line managers employed by the Company, including A. B. Kohut, are supervisors within the meaning of the Act. 6 The credited, undenied testimony of employee Pratt. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the granting of the June 14 raises I have reviewed the precise dates upon which employees were given raises at midyear in 1968 when the time policy was changed. Contrasted with the June 14 date in 1969 it appears that in 1968 a considerable number of the midyear group received wages on July 1, 1968. The significance of this July 1 date loses its force for considerations herein, however, when it is seen that in 1968 nine employees received raises on June 1, and two in August. Upon such a finding of past practice and under the pressing economic conditions created by the ILA strike and departing personnel I am not disposed to draw any inference from the granting of the increase specifically on June 14 other than that they were made after urgent request of top management and after continuing preparations in the best interest of all concerned. D. McEntry s Speeches As Respondent's efforts to counter the Union's organiz- ing campaign progressed it was decided by Vice President McEniry, after consultation with the home office, that he speak with the employees in small groups. Accordingly, on June 23, 24, and 25, speaking from prepared notes, he conferred with groups ranging from four to six individuals on a schedule prepared by Mrs. White. The following is a summary of the several subjects covered by him.7 He introduced his subject by stating to the employees (supra, sec. IV, B) that the Respondent was not in favor of unionization of its office personnel because of the impersonal relationship it would develop between manage- ment and the employees, contrasted with the present personal individual contacts that were generally enjoyed throughout the organization. McEmry described his tenure as manager of the Respondent's San Juan, Puerto Rico, facility where he was sent to get the office on a more efficient basis. Prior to his arrival the employees had brought in a union. Shortly thereafter, he told the employees, some of the San Juan employees became disenchanted with their representation and complained to him that they could no longer bring their personal problems to officials of the Company but were directed to take them to their union business agent. Moreover, two of the employees responsible for bringing in the union left the Company and went to work elsewhere within 6 or 8 months. McEniry's talk as described to this point was for the most part an effort at comparison of working conditions with and without the Union. As he progressed he became more specific. Thus he compared the current sick leave policy with the one that might be anticipated under a union contract, stating that as far "as the Company was concerned it always paid people during the time that they were ill," but that he was not at all sure what the Union's sick leave policy would be. Employee Baker quotes him, however, as saying to the group she was with that under a union contract sick leave would be limited. I accept Baker's recollection of this only insofar as it relates to what was told to her group. McEniry made numerous references to the fact that r The details of these speeches are based on McEniry's credited testimony, his notes introduced into evidence, and the corroborating during the 102-day strike of the ILA on the Houston docks the office employees continued to work. This, he said, would not have been the case had they belonged to a union. In this regard he referred to the time lost by Sea Land employees who were organized and had not worked during the strike. McEniry then commented on the liberality of the Company in matters of attendance. This, indeed, was brought out in testimony of employee Baker that time- clocks were removed by McEniry when he came to the Houston office. But employee David Long quotes McEniry as saying, however, that "with a union we would be more strict and he did not know if there would be a timeclock or not." And employee Baker quotes him as saying that "if we had a union we would have to punch a timeclock." On this same subject Baker also credibly quoted Supervisor Philip Kuntz as saying, upon observing a latecomer, that "if we had a union we would have a timeclock and that person would be docked for the time he came in late." This incident occurred in late June. McEniry dealt at length with the economics applicable to unionization. Thus he described the tenuous competitive situation that existed among the several companies like their own in the industry, none of which were organized, and he speculated that under a union contract they might well lose their competitive position and as a result lose the patronage of some of their steamship line customers, with consequent loss of employment. In final sum he then described to the employees the necessity under a union contract for maintaining salaries on a group or standarized basis that would eliminate the opportunity for improve- ment that presently existed by handling of salary matters on a personal and individual basis. And with regard to salaries, their rigidity under the present circumstances and the benefits that the employees anticipated under a union, McEniry suggested to an inquiring employee that if he were "unable to get the amount of money that he needed in shipping, that he might give some consideration to trying some of these other industries that were highly paying." Employee Robert Pratt quotes McEniry on this subject that "in his opinion if we did not like the way things were, that we should seek other employment." When asked if during the 3-day period he had talked to all of the employees, McEniry stated, "a good percentage of them. I would say, yes." E. Subsequent Activity Following the refusal of the Respondent to recognize and bargain with the Union and the filing of its petition for an election in Case 23-RM-232 a strike of the office employees was called by the Union . Beginning on July 8 a picket line was instituted at the docks served by the Respondent's stevedores and in front of its offices. As a consequence the Respondent's Texas operations were stopped for the period of 6 weeks during which the picketing continued. Nine of the office employees went out on strike and eventually returned. Meanwhile, Respondent filed its amended petition for an election, alleging therein testimony of employees who heard him Where the recollections of the several witnesses differ the resolution will appear in the text TEXAS TRANSPORT & TERMINAL CO that a strike was in progress Concurrently with this amended petition Respondent by motion to the Regional Director sought an expedited election, based on the picketing then in progress, the proportionately small number of striking employees (nine out of the total office work force), and the alleged efforts of the Union to force it to bargain with what it claimed to be a minority union F The Employee Protest of and Withdrawal From the Union On July 10, 2 weeks following the Union's demand for recognition, and 10 days after Respondent's refusal, a letter was sent to the Regional Director of the Board under the unquestioned signatures of 32 of Respondent's employees, all of whose names appear on a list supplied earlier as those in the proposed bargaining unit and 12 of whom had a month earlier signed union authorization cards The letter read as follows National Labor Relations Board 515 Rusk Houston, Texas Gentlemen We the undersigned employees of Texas Transport & Terminal Co, Inc, Houston, Texas, feel it our responsibility as co-workers to make clear our senti- ments on initiating the Office & Professional Interna- tional Employees Union, Local 27 into our office To date, we feel only a small minority of picketers, 9 people in number of approximately 50, who will be directly concerned are attempting to voice the majority opinion of all It is true many of the undersigned have signed the `Authorization for membership-Cards,' but even this act we feel was done in deliberate confusion, because we were told that we would have the ultimate opportunity to vote on the matter as we felt best We now understand that this card will be used as a definite affirmative vote This, we want to make clear, was not our understanding in the formative stages of this affair We further wish to state that it is our opinion that this union is non-beneficial to our interests as a cooperative group of employees Most of us feel we have been badgered and harrassed both directly on the street and/or by phone conversa- tion by the representative for the union and the picketers In cases where we have attempted to have our cards returned in a respectful manner, we have been told pointedly 'NO', and in at least one case when Kenneth Powell asked for his card back in writing, he was told through phone conversation with Mr Jack Langford, that he could not have the card returned, further, it would be used affirmatively regardless of his present convictions Others who have asked for their cards back have been met with non-recognition Gentlemen, we feel this is still a country in which the majority, regardless of prior commitments and after having studied a question fairly, should be able to rule We also think those of us who have decided negatively on this matter should be able to express our opinion Fortunately, this is not a city where adult citizens, 477 holding responsible jobs, can all neglect their responsi- bilities and carry a picket sign in front of their business We are writing this letter to protest the damage already done by those who have left their desks and duties to their employer and also to their cause , which is one we are definitely not in accord with Further, we write as conscientious adults and in good faith that the signatures below and information herein will be weighed accordingly Thanking you for your attention and assuring you this letter is spontaneous and without outside pressure, we remain Yours very truly, Employees of Texas Transport & Terminal Co, Inc cc Mr Charles McEniry Vice President-TTT Houston, Texas Thereafter a petition dated July 31 and bearing the unquestioned signatures of 36 employees was received by the Regional Director The petition read as follows We, the undersigned employees of Texas Transport & Terminal Co, Inc and Texports Stevedore Compa- ny, Inc , do each hereby revoke our authorization to be represented for the purposes of collective bargaining by the Office & Professional Employees International Union, AFL-CIO, and we do each hereby declare that such union has no authority to represent us for the purposes of collective bargaining G Analysis, Additional Findings, and Conclusions The substance of the matter before us is the gravity of alleged misconduct embarked upon by the Respondent and its consequent effect upon rights of the employees to be represented This course of conduct , the General Counsel contends, has so permeated the atmosphere as to render a fair election "so highly improbable as to approach impossibility " In its decision in N L R B v Gissel Packing Company, 395 U S 575, 610, the Supreme Court considers the propriety of a bargaining order , as sought here, where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside Thus it is implicit in the Court's statement of the issue as it is applicable here that the conduct alleged be of such gravity as to have an effect either upon the election itself or upon the then existing majority status of the union , or both Before assessing this conduct it would be more appropriate to define it I Interference, restraint, and coercion When Respondent's officials learned of the Union's campaign its watchword became Action Vice President McEniry called the home office and the Company's attorney, Personnel Manager White interviewed the two employees whom she considered knowledgeable in matters relating to such matters It is admitted that at this point a 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign of employee interrogation began, starting with White's and McEniry's questioning of employees Baker and Quiroga, asking them what they had heard from the Union, how they felt about it, and how the employees felt about it, and indicating to each the Respondent's objection to a union, and reminding them of its past beneficiences to the employees (supra, Sec. IV, B). The campaign of interrogation extended beyond these two officials to all the division supervisors when they were directed to read to their employees a statement of the Respondent's position in opposition to the Union. Thus Comptroller Trostmann concedes that as part of his talk in opposition to the Union he asked each of his 13 subordinates how he felt about the Union, understanding this to be McEniry's direction to him. And upon learning their individual sentiments he reported them to McEniry. Supervisor Kohut and, it may be presumed from Comptroller Trostmann's straightfor- ward reply, the other division heads or their assistants did likewise. The context in which these supervisors and officials interrogated their employees is significant. The incidents were not isolated, and neither were the questions the sole element of the individual or group conversations. Thus Trostmann admits to extending himself. He not only commented favorably upon existing company benefits, emphasizing that they were given without union help, but he speculated with the employees on their personal future. Although admitting at the hearing that he was uninformed on the subject he nonetheless told them that if the Company went union "that in the event they should seek employment with another steamship company, they may have problems securing employment." Kohut's interroga- tion of employee Pratt was equally significant as, on learning that Pratt favored the Union, he asked him if a raise to $400 per month would change his mind. And as a final thrust to the questions posed by him Kohut stated his feeling that the Company should "clean the slate and hire new employees that felt differently" about unions. The circumstances surrounding the interrogations here belie any suggestion that they were aimed merely at ascertaining employee sympathies, a practice permitted under appropriate safeguards.8 Here by its own admission, Respondent intended more, the dissuasion of its employees from their union leavings. In this process more than inquiry occurred. One employee was offered a raise to change his union sentiments; a clean slate of union sympathizers was suggested; and a group was reminded of outside employ- ment "problems" if they went union and later looked elsewhere. It cannot be denied that such a promise of benefit, threat of discharge, or suggestion of reprisal upon seeking future employment constitute the interference, restraint, and coercion proscribed by Section 8(a)(l) and I so find and conclude. Over and above this, however, I find that interrogation in the context of such unlawful conduct is itself the further 8 Struksnes Construction Co, Inc, 165 NLRB 1062 9 Blue Flash Express, Inc, 109 NLRB 591, 594 IO 1 place no significance upon McEniry's statement that the two employees most active in the Union terminated their employment in a matter of months Certainly there is no correlation to be inferred between interference, restraint, and coercion contemplated by the Board in its Blue Flash9 decision and those which have followed it. 1, accordingly, conclude and find that by the systematic interrogation in which Respondent indulged it further violated Section 8(a)(1) of the Act. The series of talks which the vice president gave to employee groups to discourage their unionization (supra, sec. IV, D) is not as easily classified. To begin with he announced that the Respondent was not in favor of unions. It was Respondent's privilege to take this position and its right under Section 8(c) to say so. McEniry said much by way of comparison of conditions with and without a union. Thus he described his experience in Puerto Rico where the advent of the Union marked the end of personal handling of employee problems.iO He compared the Company's generous sick leave policy with a more restrictive one that could emerge from the negotia- tions for a union contract. He compared the free and easy settlement of work problems with the more rigid system that could exist if the Union and a shop steward were part of the picture. Similarly, he compared absentee and attendance handling under present rules with rules that would be developed after bargaining with the Union. And he compared the financial advantages of the employees were they to be represented by the Union, indicating that the competive position of the Company could be jeopard- ized, business lost, and jobs curtailed. And, finally, he suggested to them that those unhappy with their income might look to higher paying industries. I am referred to Stewart & Stevenson Services, Inc., 164 NLRB 741, as authority for the proposition that an employer's speech, allegedly similar to McEniry's, was coercive (Chairman McCuiloch, relying on Sec. 8(c) of the Act, did not concur with the two other members on this issue). I find the cited case inapposite. There, unlike here, the several speeches were found to have been delivered by the employer in a manner which reflected the force of his "anger with the Union's propaganda material." And the Board's conclusion that the violation that had been committed was based in part on the fact that he had been "infuriated." McEniry was neither angered nor infuriated. Indeed. General Counsel's witnesses testified uniformly to the contrary. Nor, as in Stewart & Stevenson, was McEniry's speech "scattered with implied threats to discharge union adherents." And, while McEntry did say that those unhappy with their pay might well go elsewhere, a statement which the Board has held not to be threatening or coercive,ii the employer's remarks in the cited case went far beyond, calling the active union employees a "ball and chain" and urging them "to go to some company where they have a union if they want to work there." i2 In summary, Stewart & Stevenson is not this case; for unlike that case the speeches here did not occur in the context of extensive unlawful conduct and discriminatory discharges, Consequently, I reject it as support for the authority that the speeches given by McEmry exceeded the bounds of appropriate free speech. On the contrary, I find union activity and extended employment tenure , absent further facts. Brunswick Quick Freezer, Inc, 119 NLRB 1495, 1499 5z But see Merchants Fast Motor Lines, 171 NLRB No 177, where such a statement was held not to violate Sec 8(a)(1) TEXAS TRANSPORT & TERMINAL CO. that in his comparisons and his references to conditions with and without a union he was properly reciting facts whose validity was available to all, and he was indulging in reasonable speculations which might quite legitimately flow from the circumstances at hand. In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618, the Supreme Court stated that: An employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. [Emphasis supplied.] I am persuaded that McEniry's remarks to the employees were contained within such bounds. Under all of the foregoing circumstances, therefore, I conclude and find that McEniry's several speeches to the employees on June 23, 24, and 25 were proper expressions of opinion and fact protected by Section 8(c) of the Act and not in violation of the Act. Finally, there is for consideration the propriety of the pay raises given to the employees on June 14. I am quite aware that it was on June 13, the Friday of the week during which White and McEniry interrogated employees Baker and Quiroga, that the decision was made to grant wage increases on the following day. Be that as it may I cannot, by this coincidence alone, be blinded to the established facts that those who granted the wages when they did had been striving to do so for the previous several months without any reference whatever, so far as this record would establish, to the existence or nonexistence of the Union. It may certainly be inferred that Respondent's fiscal decision here is so heavily supported by the hard fact of the outstanding dock strike as to negate any connection with the delay of the wage increase until June 13. Thus, the frequent attention given to the wage subject at top level management meetings (supra, sec. IV, C), the constant barrage of memoranda from White and McEniry to top management deploring the help shortage and citing a need for raises, all render insignificant and tenuous the suggestion that the wage raise was suddenly given in June to defeat the Union. On the contrary, I conclude and find on the record made that the increases were a part of the normal exercise of the Company's business function. I see no need for either supervision over or curtailment of this function merely because a union seeks to organize its employees. Indeed a stronger case might well have been made, as it has in other instances,13 had wages found to have been deserved, overdue, and necessary for the efficient operation of the business been withheld because of an impending union campaign, such withholding being subject to interpretation as unlawful coercion of the employees. I am not disposed to convert such a dilemma as this into a finding of unlawful interference, restraint, and coercion, and I therefore conclude that in granting the pay raises to 13 See Smith Transfer Corp., 162 NLRB 143, 158, and cases cited therein. 14 Sec . 9(c)(1)(B) provides as follows: Wherever a petition shall have been filed, in accordance with such regulations as may be prescribed by the board - by an employer, 479 the employees, as more fully described earlier, Respondent did not violate Section 8(a)(l) of the Act. 2. The refusal to bargain a. The appropriate bargaining unit Any determination of the Respondent's obligation to bargain contains as a necessary element the existence of a unit of employees appropriate for collective-bargaining purposes. Regardless, therefore, of the outcome of the ultimate determination herein, a definition of this unit is the first order of business. Respondent submitted to the Board in connection with a petition for an election the names and classifications of employees employed as of July 27, 1969. These classifications are the same as those set forth by Respondent in its petition for election and except for the categories discussed below are not in dispute as constituting the appropriate bargaining unit. The position of assistant to full cargo manager, held by I. W. Greene, was described by Personnel Manager White as supervisory; the position of assistant to operations manager for Texas, held by David S. Brown, involves dealing with the superintendents on the docks. This and the position assistant to operations manager appear to be of equivalent supervisory status to the several assistants to department heads, standing in for them in their respective absences, and I would exclude them as supervisory. Similarly, the position of line manager previously described as superviso- ry (supra, fn. 5) is for that reason not included in the unit. Upon consideration of the foregoing, therefore, and upon the stipulations and submissions of the parties, I conclude and find the following to be a unit of Respondent's employees appropriate for collective bargaining: Traffic Representative, Outbound and Inbound Clerks, Typists, Multilith Operators, Stenographers, Freight Cashiers, Secretaries, Payroll Clerks, Accounting Clerk- Typists, Office Boys, Junior Stenographers, Clerk- Typists, Full Cargo Clerks, File Clerks, PBX Operators, and Teletype Operators, but excluding, guards, confi- dential secretaries, the assistant to Full Cargo Manager, the assistants to the Operations Managers for Texas and for Houston, Line Managers, and all other supervisors as defined by the Act. Moreover upon the submission and stipulation of the parties I conclude and find that the incumbents of the foregoing "included" categories whose names appear in the record represent a total work force of 51 employees eligible as of July 1, 1969, to vote in an election in the bargaining unit described above. b. Respondent's obligation to recognize the Union The terms of Section 9(c)(1)(B) of the Act which provide for an employer election such as Respondent sought here have never been interpreted as giving him an absolute right to an election.14 Rather, as the Supreme Court states in Gissel (395 U.S. at 599): alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a); the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing (Continued) 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [I It was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union's majority in a secret election which they would then presumably not cause to be set aside by illegal activity. Accordingly, the Court concludes: [A]n employer can insist on a secret ballot election, unless . . . he engages "in contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election." [395 U.S. at 600.] It is apparent from these holdings of the Court that an employer-petitioned election may still be an appropriate test of majority status even in circumstances where validly authenticated union authorization cards are available to establish the majority status.15 What is essential, to be sure, is that there be a doubt on the employer's part as to that majority. While Gissel eliminates the distinction between "good faith" and "bad faith" doubts,16 it does not foreclose a doubt such as Respondent expressed when, on June 30, McEniry wrote "we believe you are in error in your assertion that the union has such a majority." In Gissel, the Supreme Court stated the Board's present position on the employer's duty to recognize a union, in the absence of unfair labor practices (395 U.S. at 591): When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independ- ently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under § 9(c)(1)(B). [Emphasis supplied.] Thus Gissel requires as a specific for petitioning an election under Section 9(c)(1)(B), as Respondent did here, that he not have "knowledge independently of the cards that the union has a majority." There is no evidence in this record that Respondent ever acquired such knowledge either legally or illegally prior to June 30. Nor did it enhance its knowledge of this fact after June 30, for only 9 of 51 employees in the bargaining unit engaged in the Union's recognition strike. This is not the certainty that the Board requires to assure itself that the employer had that degree of "independent knowledge" required by Gissel to dispense with an election. What negates the right which an employer has to an election, says the Court, is the effect which that unfair labor practice would have either upon the election itself or upon the majority which it would test. The significance, then, of the unfair labor practices rests not in themselves but in their effect. For Gissel speaks in terms of effect. Thus, discussing the propriety of a bargaining order where an employer has committed independent unfair labor practices the Supreme Court identifies these unfair labor practices as those which have made the holding of a fair election unlikely upon due notice Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the result thereof 15 Pacific Abrasive Supply Co, 182 NLRB 329 or which have in fact undermined a union's majority and caused an election to be set aside. [395 U.S. at 610.] [Emphasis supplied.] Essentially what is presented for resolution here is not whether the conduct of Respondent's officials and supervisors was good or bad, for we have decided that already (supra). What remains to be decided, is whether, however bad it may have been, in and of itself, what effect, if any, was it shown in fact to have had on the majority status of the Union and the election process. In point of time it is to be noted that the unlawful conduct found herein occurred well in advance of the June 26 request to bargain and the June 30 refusal, the interrogations by White, McEniry, Duderstadt, Trostmann, and Kohut occurring between June 9 and 20, as did Trostmann's remark that unionized employees might have trouble getting jobs elsewhere; Kohut's offer of a raise to employee Pratt, and a threat implicit in his "clean the slate" remark (supra) occurring on June 11; and Personnel Manager White's irritated comment to employee Baker upon observing her wearing a union button occurring in late June." To significantly effect the Union's established majority this conduct must be shown to have done more than to have "just happened." It is, therefore, to evidence of its effect on the majority status that we must concern ourselves. Chronologically, no effect has been shown prior to June 26, or indeed to June 30, when Respondent expressed by letter the doubt the Supreme Court holds he is entitled to express. The first tangible indication of a loss of majority occurred 2 weeks after the Union's demand when, on July 10, 32 employees, 12 of them card signers, protested in a letter to the Board their objections to the Union generally, and in particular to the strike for recognition which it called against the Company and in which only 9 employees participated. Clearly at this point of time, July 10, the majority was lost or seriously damaged. But the short answer cannot be that it was the earlier unfair labor practices caused the loss. The letter sent to the Board by 32 employees, including 12 of the majority group, does not blame the unlawful conduct of the Employer for their disenchantment with the Union. They single out specific conduct of the Union. We cannot ignore this signed statement of these majority members that the majority was so lost, and substitute for it an unfounded inference that it was the Employer's much earlier conduct that was the cause and that the employees cannot be believed when they complain of what happened much later. Upon the foregoing, therefore, I conclude and find that it has not been established by the evidence presented here that it was the unlawful conduct of Respondent that caused the loss of the Union's majority, as that loss was first manifest on July 10. There remains for consideration whether the unlawful conduct "would have made the holding of a fair election 16 395 U S at 5§4 17 Baker credibly testified that White observed the button and stated, "As good as I have been to you, and after all I have done for you how could you do this to me " When Baker sought to justify wearing it White replied, "All right, young lady, you just go right ahead." I am not disposed to dignify this incident as the type of employee interference , restraint, and coercion contemplated by Sec 8(a)(l) of the Act. TEXAS TRANSPORT & TERMINAL CO. unlikely." At the outset is the Board's criteria, cited with approval by the Supreme Court in Gissel. In Aaron Brothers Company of California, 158 NLRB 1077, 1079, the Board, after discussing unlawful conduct calculated to dissipate union support, stated: 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 obligation to bargain, the Board will not draw an inference of bad faith.18 A review of the conduct herein which I have found to be unlawful does not disclose a purpose to evade an obligation to bargain. While Respondent has most certainly intruded itself into its employees' affairs it clearly stated its willingness to bargain, speculating only on the wisdom of selecting a representative to make that bargain and on their ultimate satisfaction, by comparison, with the bargain reached. I am, of course, aware of threats made by Trostmann and Kohut and Kohut's offer of a wage raise to an employee. These, I deem to be of insufficient consequence in the overall circumstances presented here. To meet the test established by Gissel it must be shown that these instances of misconduct "because of their minimal impact on the election machinery, will not sustain a bargaining order." Because, at the time the offending statements were made there is no evidence that an election was to be held and because all the employees had in fact signed for the Union when the election was sought I fail to see what the conduct's impact could have been upon an election . Indeed, the only impact shown to have been exerted upon the election machinery was the Union's conduct, as evidenced by the employees' later complaints to the Board. Upon all the foregoing I reject the argument that the conduct of Respondent in any way exerted an effect upon 1s In citing the Aaron Brothers decision with approval the Supreme Court has nevertheless restricted its scope. Thus, referring to the Board's decision the Court stated (at p 594) Under the Board's current practice, an employer's good faith doubt is 481 the election machinery or upon the probability that a fair election could be held. I would conclude and find, therefore, that upon the evidence presented in this case the General Counsel has not established that Respondent's unlawful conduct, which I have found to violate Section 8(a)(1), (supra) has made it unlikely that a fair election could be held, or that it had the effect of dissipating the majority which the Union enjoyed by virtue of signed authorization cards prior to the beginning of its strike for recognition. I will, accordingly, recommend that so much of the complaint as alleges a refusal to bargain in violation of Section 8(a)(5) and (1) be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY I have found that by numerous acts and statements Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. I shall recommend that it cease and desist therefrom. For the reasons previously stated I have not found that this conduct either in itself or in the context of other conduct alleged to be unlawful satisfies the criteria established by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 615, for the issuance of an order to bargain. I shall therefore not recommend such an order. [Recommended Order omitted from publication.] largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election