Standard Fittings Co.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standard Fittings Company and General Truckdrivers, Local 201 , affiliated with International Brother- hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Independent. Case 15-CA-3214 September 27, 1968 DECISION AND ORDER By MEMBERS BROWN , JENKINS , AND ZAGORIA On June 25, 1968, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled pro- ceeding, finding that the 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. With respect to certain other allegations, he recommended they be dismissed. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision, and a support- ing brief. 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 and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner, as herein modified. 1 In the absence of exceptions , we adopt pro forma, the Trial Examiner's findings that statements made by the Respondent during his August talks to the employees , were not violative of Section 8(a)(1) of the Act. 2 As the Trial Examiner found that the Respondent did not solicit employees to campaign against the Union , his Recommended Order is modified accordingly. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A GILLIS, Trial Examiner This case was heard by me on April 24 and 25, 1968 at Opelousas, Louisiana, and is based upon a charge filed on November 27, 1967 by General Truckdrivers Local 201, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent, hereinafter referred to as the Union, upon a complaint, issued on March 5, 1968, by the General Counsel for the National Labor Relations Board, hereinafter refered to as the Board , against Standard Fittings Company, hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. At the hearing, all parties were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument Subsequent to the close of the hearing, timely briefs were filed by counsel for the General Counsel and for the Respondent.' Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v NL.R.B , 340 U.S. 474, 496), I make the following ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as herein modified, and orders that the Respondent, Standard Fittings Company, Opelousas, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from paragraph 1(a) of the Recom- mended Order, the words "and soliciting its employ- ees to campaign against the Union," and insert a period after the word Union. 2. Delete from the first indented paragraph of the Notice the words "and WE WILL NOT solicit employees to campaign against the Union " and insert a period after the word Union. FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Standard Fittings Company, a corporation engaged in the manufacture and distribution of steel pipe fittings in various States, including manufacturing operations in the Opelousas, Louisiana area, during the past 12 months purchased and received goods at its Opelousas, Louisiana, plant valued in excess of $50,000 directly from points outside the State of Louisiana The parties admit and I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I On June 7, 1968 , 2 days after the extended date set for the filing of briefs, counsel for the Respondent submitted a Supplemental Brief in answer to a portion of the brief submitted by counsel for the General Counsel Thereafter , the General Counsel moved to strike Respondent's Supplemental Brief on the ground that the Board 's Rules and Regulations do not provide for answering briefs. G. neral Counsel's motion in this regard is hereby granted 173 NLRB No 9 STANDARD FITTINGS CO. 43 11 THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that General Truckdrivers Local 201, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNtAIR LABOR PRACTICES A Issue Whether, at various times between August and November 1967, Respondent's officials engaged in conduct violative of Section 8(a) (1) of the Act B. The Facts Preliminary Statement In early August 1967, 2 the Union commenced its campaign to organize the Respondent's Opelousas plant On August 28, a representation petition in Case 15-RC-3477 was filed by the Union, resulting in a representation hearing held on September 15 During this period, the Company operated from two buildings, one on South Street, the main plant, and the other on Landry Street A new plant on Grandigot Road, some 4 or 5 miles away, was then under construction. Just prior to the election on November 8, the new plant was completed and all but 14 of the Respondent's 113 employees then on the payroll, along with machinery from the old plant, moved into the new building. The Union's campaign during this period was accompanied by a number of employee meetings called by the Respondent's president, Irwin Davlin, who attempted to dissuade employees from selecting the Union as their representative. It is with these meetings, including the preparation and circulation of a petition reflecting employee revocation of Union authorization cards, as well as with employee questioning by certain supervisors and the Respondent's attorney, Donald Meyer, that the instant proceeding is primarily concerned Early August Meeting Sometime between August 1 and 15, the parties were unable to stipulate more precisely, Davlin instructed his foreman to invite all employees during the afternoon working hours to take a tour of the new plant, which, at the time, was approximately 80 percent completed. At about 2 p.m., with most all of the Respondent's employees present, Davlin guided them through the plant, describing where various operations and machinery would be located. At the conclusions of an approximately 'k hour tour, with Plant Manager Malcom Marcus and Personnel Manager Shelton Courville present, Davlin stood upon a heavy piece of equipment, and, from such vantage point, delivered a 10 minute speech without notes relative to the pros and cons of union activity. During this talk Davlin made reference to what had happened at his Massachusetts plant, stating that a union came in and promised the employees job security and higher wages, with nothing to lose and everything to gain After an election the employees lost control when non-employees set up a picket line which prevented employees who might have wanted to work from going to work. Davlin continued with his Massachusetts story by telling his employees that there followed incidents of violence with people seriously hurt, some needing hospitalization, as well as damage to property. Subsequently, management had to hire other people who went to work, resulting in the eventual calling off of the strike by the Union. After relating this story to the assembled employ- ees, Davlin told them that they had the right to do whatever they wanted, including the right to vote if they wanted an election, but that they should carefully study what they were doing and should be aware of the possible consequence S.3 According to former employee Rogers Brown, Davlin also said dunng this talk that he heard the employees were signing union cards, that other union plants where he had been had shut down, that this was a quiet town and that is why he moved there, that if the employees needed more money he would see fit to give them more money, that if they signed with the Union they could no longer talk to him individually, only through the Union, and that he did not want a union in the plant General Counsel witness and former employee, Joseph Ray, testified that Davlin said that he did not particularly care to have a union in the plant, that unions usually cause trouble, that you are the small people who are the ones who will get hurt if you join the Union, that he would not collect union dues from anybody, and if the employees wanted to join a union that was their business, it was a free country, but that he felt that they should have more information concerning the Union, that if they joined the Union and there was a strike they could not get unemploy- ment, they possibly would lose their jobs, that if they had a strike, he would have guards to protect his employees that wanted to work, and the Union would also have the same privilege. In addition to the above, which is not really in dispute, Rogers Brown testified that Davlin said he had nothing to lose, he "would shut the plant down, pack my bag and go back where I came from, because no union can make me sign a contract with them," and that if the Union came in the employees would all be fired With respect to the latter, employee John Guillory corroborated the first part, but not the part pertaining to the employees getting fired According to Gurllory, however, Davlin also stated that he would not have a union in the plant, if he had to lay off the whole crew he could and rehire a new crew. Other General Counsel witnesses, Ray, John Soileau, and Joseph Thomas, in testifying to this meeting, did not corroborate Rogers Brown or John Guillory with respect to the latter. Davlin denied saying anything about packing his bag and going home if the strike were to take place, and denied generally that he ever threatened to fire any employee because of the Union. I do not credit Rogers Brown or Guillory with respect to these last statements and find that Davlin's talk on this occasion consisted of the non-disputed matters set forth above 2 Unless otherwise specified, all dates refer to the year 1967. 3 The foregoing is taken from the testimony of Davlin. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Petition" Meetings-September 7 and 8 In very early September, before receiving notification of the Union's representation petition, Davlin, apparently concerned with the unionization of his plant and the circumstances surrounding the signing of union cards by employees, sought legal advice. On September 7, Attorney Donald Meyer went to Opelousas and talked with Davlin, who had just received a copy of the representation petition. For whatever reason, Davlin questioned the sufficiency of the Union's showing among his employees, and requested information as to what could be done to determine the authenticity of the union card count. It was decided, as testified to by Attorney Meyer, that a petition would be drawn up "whereby the employees could evidence their wishes to either revoke a card or not to have the union represent them." It was also decided, in connection therewith, that Davlin would address the employees in each of his departments. Accordingly, commencing at about 10 p in , between shifts on the night of September 7, and continuing throughout the following day, Davlin held I1 meetings of his employees, by departments, either in the department itself or, because of the noise, in adjacent outside areas In all instances the same pattern was followed Davlin, with Personnel Manager Shelton Courville and Attorney Meyer present, read "practically verbatim" and without deviation the contents of a letter, which he himself had prepared, a copy of which is attached hereto as Appendix A In the letter, which at a later date prior to the election was also mailed to a substantial number of the Respondent's employees, chronologically Davlin refers general- ly to (a) his prior experience with a union, its unfulfilled promise to employees of higher wages, easier jobs, and strike benefits, and the strike which followed, accompanied by picket lines that employees were afraid to cross, violence and hate, (b) the good treatment accorded employees by the Company in the past with respect to job security, higher wages, including overtime, incentive systems based on higher productivity, to the promotion to higher jobs of employees who showed initiative, which the Company hoped to continue in the new plant, and to the fact that there had been no layoffs even when material shortages and orders indicated there should have been, (c) the fact that he did not want a union and, although the employees could pay the Union if they wanted to, he did not intend to collect dues and initiation fees from employees' paychecks, that this was a free country and he did not intend to have a plant where everyone must belong to the Union, and did not intend to tell him how to do this job, (d) the assertion that the Company cannot afford higher wages except through higher production, the fact that there is no unemployment compensation for strikers, and that other people may hesitate to hire a striker, (e) again to the strike at his other plant where all employees were forced to give up their job by "imported strike line people," followed after a while by the Company hiring a whole new force which the Company trained, and the unrelated fact that the president of the Union attempting to organize the Opelousas employees is in a federal prison, and finally (f) his belief that the Union could not get anything for the employees at this time, that unions have in other places been responsible for doing away with overtime, and piece rates, and have caused layoffs, and that union dues will come out of the employees' pocket. In each case, after reading the letter, the very last portion of which also solicits the employees to sign the petition indicating that they do not want the Union, Davlin left the area, and Courville took over, reading verbatim to the employees the heading which appeared at the top of the company petition, and stating to the employees that "it was solely voluntary, they could either sign the petition or not, it was up to them." The heading on each page of the petition reads as follows After further consideration and having had time to discuss the advantages of appointing a Union to represent us in connection with our working for Standard Fittings Company, we voluntarily revoke any Union Authorization Card we have signed before Even if we have not signed a Union Card we do not want to be represented by the Teamsters Union, Local 201 in connection with our work Again, in each case, immediately after Courville read the heading, Attorney Meyer departed the area, leaving Courville and the employees with the petition. Some 12 witnesses appearing on behalf of the General Counsel testified concerning these meetings. While, in some instances there may have been some misunderstanding as to Davlin's comments, their testimony generally, particularly after testifying on cross-examination, does not depart sub- stantially from that of Davlin with respect to the speeches, and, in fact, for the most part is corroborative thereof. With respect to the signing of the petition, almost without ex- ception they testified that they were told that they did not have to sign if they did not want to I find, as testified to by Davlin and Meyer, that Davlin made his talks from the letter and that he did not deviate therefrom. To the extent that the testimony of employee witnesses may be at slight variance with the substance of the letter, or with the testimony of Davlin and Meyer4 in this regard I find, without attacking the veracity of the employee witnesses, that for the most part it is based upon a poor recollection of the meeting or a miscon- ception of the application of Davlin's remarks In any event, I find it without credence. Shortly after the last of these department meetings on September 8 concluded, because Davlin had indicated that he would be glad to answer questions later, Davlin met for that purpose with some 7 or 8 employees outside,the forge area During the course of the 10 or 15 minute conversation that ensued, wherein Davlin re-read the letter and answered questions put to him by employees, in support of a point, he read headlines and bylines from current copies of two daily newspapers, i e , "Labor Dispute Behind Blasts, Says Sheriffs' Office in Vermilion," . "160,000 Workers Strike Ford Co " . "Bussie Case Witness Assured." . "Ford Motor Co. Closed by Strike" and "Auto Workers Walk " Many of the questions asked Davlin related to current employment, which were answered by his indicating that higher productivity would insure higher wages, that the work force in his Massachusetts plant was much more skilled, thus the productivity was higher, accounting for the wage differential. When asked what a union could do for the employees, Davlin responded by saying that because of the size of the Company at Opelousas, he did not think the Union could do much for them, showing the employees at that time the newspaper headlines. At this point Courville again read the petition heading. Before the group broke up one employee asked Meyer whether, if they signed the petition, it would be used in a court proceeding, and was 4 Courvrlle, the other company official present during these sessions, did not testify in this proceeding STANDARD FITTINGS CO 45 told probably not but that it might be used in a National Labor Relations Board proceeding .5 While the testimony of Rogers Brown and Joseph Thomas would indicate that Davlln called these few employees together for the purpose of pressuring them into signing the petition, I do not credit their testimony as to this meeting and find the facts as testified to by Davlm and Meyer. Meeting of November 5 and 6 On November 5 or 6, in the new plant a few days before the election, a meeting was held at which all day shift employees were present. Davlln, standing on a staircase, addressed the employees using the same sheet he had used at the earlier "petition" meetings, although he did not read it verbatim. There were no questions asked. Herbert Lee Brown and Joseph Thomas, the only two employee witnesses to testify con- cerning this occasion, testified that Davlm said about the same thing as he had at the other meetings, mainly, that he did not want a union and he did not want any initiation fees or dues While Brown did not corroborate Thomas' testimony to the effect that Davlm said that if he had to he would fire the whole crew, both employees testified that they heard Davlrn in effect say that he would pack up his bag and go home. Brown later testified that he did not recall Davlm saying directly that he would close the plant if the Union came in, and that he possibly could have misunderstood Davlin, that Davlin could have been referring to a story concerning his Massachusetts plant and not the Opelousas plant In any event, Davlln credibly testified that he made no such statement and that he never threatened his employees with layoff if the Union came in. Conclusion The General Counsel asserts that the substance of Davlin's talks to Respondent's employees on these occasions, as well as its conduct in soliciting the employees to revoke their prior union authorization cards, contravenes the Section 8(a)(1) provisions of the Act. First, with one exception, I disagree with the General Counsel with respect to Davlrn's August speech, his September 7 and 8 talks, and his employee address of November 5 or 6. There is no question but that, through such media, the Respondent waged an aggressive campaign against the Union, but the record, including a close perusal of Davlm's "letter" from which he made his September and November speeches, reveals no express or implied promise of benefit or threat of reprisal Without attempting to treat the specifics of these talks in detail, all of which appear to fall within the same ambit, I conclude that with the exception of the solicitation hereinafter noted, Davlm's speeches considered as a whole, as well as the letter, fall short of coercion or restraint of employees and that they come within the protection of Section 8(c) of the Act 7 While finding Davhn's letter and his speeches in themselves to be non-coercive except as noted, I do not agree with the Respondent that such is the case with respect to the Respondent's conduct immediately following the talks on September 7 and 8 in preparing a petition and soliciting employees to sign said petition calling for the revocation of previously signed union authorization cards and for the rejection of the Union. In this regard, Davhn's closing remarks to his employees during these meetings whereby he told them he would like them to sign a card repudiating the Union, coupled in each instance with Courville's presenting the petition for signatures, I find to be a violation of employees' rights guaranteed by Section 7 of the Act The Respondent attempts to justify its conduct in this regard on the ground that it had a right to determine whether the Union represented a majority of its employees for the purpose of holding an election, and relies upon the Blue Flash doctrine.8 Apart from the fact, acknowledged by the Respondent, that Blue Flash is no longer the law with respect to polls, it having been revised by the Board's ruling in Struksnes Construction 9 which decision issued several months prior to the incident here involved, 10 I find that neither Blue Flash nor Struksnes is applicable to the situation here. In my opinion, regardless of motive or purpose, it is one thing for an employer to take a poll of his employees and quite another to instigate, prepare and sponsor a petition for employees' signatures by which they signify their revocation of prior union designations and their rejection of the union. Furthermore, even if Struksnes were applicable here, and the criteria announced therein satisfied, which it is not, the Board made it quite clear in Struksnes that a poll taken while a petition for a Board election is pending does not serve any legitimate employer interest, and that such polls are violative of Section 8(a)(1). Based upon the record as a whole I find that by instigating the revocation petition herein, and soliciting employees to sign 5 Meyer's prediction in this regard was accurate , for 7 days later on September 15, this petition , consisting finally of 16 pages, and comprising some 122 signatures , virtually every employee in the plant, plus the signatures of supervisors Nezat and Manuel , was used in support of, and attached to, the Company's motion to dismiss the petition in Case 15-RC-3744 6 Rogers Brown testified that on this occasion, which took place on September 8, "When I signed (the petition ) I just grabbed it and signed it and threw it down and walked away because I did it against my will " Brown's veracity , generally , is questionable , particularly in view of the fact that his signature on the petition list, while not dated , appears between the signatures of two employees, as well as others , who signed the petition on September 7, the day before this meeting occurred. 7 Conroe Creosoting Company, 139 NLRB 1174 See also the Board's recent decision in Howmet Corporation , Austenal Microcast Division , 171 NLRB No 18, and Worzalla Publishing Co., dlbla National Bookbinding Co., 171 NLRB No. 34 , wherein preelection speeches of the type made here by Davlin were held by the Board insufficient to sustain objections to an election. 8 In Blue Flash Express, Inc., 109 NLRB 591 , the Board established criteria which must be satisfied before a poll of employees by an employer would be considered other than coercive , namely, that (1) the employer's sole purpose is to ascertain whether the Union demanding recognition actually represents a majority of the employees , (2) the employees are so informed , (3) assurances against reprisal are given, and (4) the questioning occurs in a background free from employer hostility to union organization 9 In Struksnes Construction Co., Inc., 165 NLRB 1062, the Board adopted the following standards Absent unusual circumstances , the polling of employees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed ( 1) the purpose of the poll is to determine the truth of a union's claim of majority , (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. 10 I find without merit the Respondent's assertion , contained in its brief, that, because the Struksnes case "probably was not reported" until some time contemporaneous with the circulation of the petition, the Respondent should not be held to its doctrine 46 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it, the Respondent was not attempting to determine the validity of the Union's majority but rather was attempting to bring about employee disaffection from the Union. As such, the Respondent engaged in conduct violative of Section 8(a)(1) of the Act.' 1 Employee Questioning by Attorney Meyer Early on the morning of September 15, somewhat prior to the 10 A M., scheduled representation hearing, Attorney Meyer met with Courville and Marcus and indicated that, in connection with his appearance at the representation hearing, he would like the opportunity of discussing with some of the employees the facts surrounding their signing a union card, and what was said at union meetings concerning the authorization card. Such was arranged, and, pursuant to Meyer's instruction, several employees, a total of eight in fact, picked at random by Courville, were interviewed privately in the company office by Meyer. According to Meyer, in each case, upon the employee entering, Meyer first introduced himself as the company attorney. He then indicated that he was going to ask the employee some questions, but that the employee did not have to answer the questions if he chose not to. With the exception of a few who were hostile, stating that they would not answer at all, and were dismissed, according to Meyer, he asked each of them "what they remember, if anything, about what was said to them at any union meeting that they attended or at any other time concerning the use to which the authorization card which they allegedly had signed would be put." In each case, upon the termination of the office interview, as the employee left, Meyer wrote down the substance of the conversation. Time prevented Meyer from conducting further employee interviews, and shortly before 10 A.M., Meyer proceeded to the representation hearing Thereafter on September 22, the affidavits of three of the employees interviewed were sub- mitted by Attorney Meyer in support of the Respondent's supplemental motion to dismiss the representation petition on the ground that the Union at a meeting had misrepresented to the employees the purpose for which the cards were to be used. Four employee witnesses testified to these interviews Although admitting that the only basis of Meyer's conversation with him was Meyer's asking him what the union repre- sentatives told the employees as to the purpose of signing the cards, and corroborating generally Meyer's testimony, Herbert Lee Brown testified that Meyer asked him if he had signed a card for the Union and whether he knew the union organizers, to each of which Brown replied that he would rather not say Employee Frank Quebedeaux corroborated generally Meyer's testimony, admitting that Meyer initially told him he did not have to answer questions and that he did not have to tell him whether or not he signed a card However, Quebedeaux insisted, even in the face of Meyer's cross-examination, that Meyer kept asking him.about "what was said at the meeting that night," not merely what was said about the cards. Employee Joseph Ray, who was excused almost immediately when he exercised Meyer's option of not answering his questions, testified that Meyer "wanted to know if I could give him any information concerning the meeting we had with the Union." Employee Cryus Arcenaux, called by the Respondent, testified that when called into the office on this occasion Meyer asked him "what was said at the union meeting," and, then, with the help of leading questions, "concerning the cards." Conclusions The General Counsel contends that Attorney Meyer's conduct in this regard went beyond that which would serve any legitimate employer purpose, and that, as such, it was designed to ferret out employees' union activities, a violation of Section 8(a)(1) of the Act. The Respondent defends the conduct of Attorney Meyer on the ground that the questioning was based solely upon the Respondent's attempt to determine whether or not the Union authorization cards allegedly signed by its employees were valid for the purpose of the representa- tion hearing, and that, in questioning the employees, they were apprised of their rights and told that they need not answer questions if they chose not to do so. While the Respondent's motive in this regard is open to some question, from a point of view of timing as well as the fact that 5 and probably 6 of the 8 employees called into the office had the week before signed the revocation petition, I find, even assuming a proper purpose, and notwithstanding its assurances to the employees, that the conduct of Meyer does not satisfy all the safeguards established by the Board for minimizing the coercive impact of this type of interrogation. Thus, in the Johnnie's Poultry case,12 the Board held that "the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis, the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature, and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees." Accordingly, inasmuch as it does not appear that Meyer specifically communicated to the employees the purpose of the questioning, or that he assured them that no reprisal would take place, coupled with the fact that these interviews followed closely the Respondent's September 7 and 8 adamant opposition to the Union and its coercive conduct in openly soliciting its employees to revoke their union designations, I find, as did the Board in Automotive Warehouse Distributors Inc.,13 that, as the Respondent's attorney failed to heed all safeguards of Johnnie's Poultry, the Respondent "abused its privilege of interrogating its employees on matters involving their Section 7 rights ... ," and has thereby violated Section 8(a)(1) of the Act Alleged Individual Incidents Former employee Herbert Lee Brown testified that some- i time in September, Plant Manager Marcus called him to his office, and, after initial pleasantries, asked him if he knew anything about the Union, and said that he had been told that he (Brown) was a leader When Brown, contrary to the fact, denied that he was a union leader, Marcus told him that the t t See Thomas Jordan, Inc, 169 NLRB No 98. 12 Johnnie's Poultry Co., 146 NLRB 770 13 171 NLRB No 101 STANDARD FITTINGS CO 47 plant was a little too small to be taken over by a union. According to Brown, who had in fact been active in the Union, attending meetings and signing up some 20 employees, Marcus closed by telling him to "talk to the guys and try to get them discouraged about any union." Marcus' version, with which Brown finally, on cross- examination, in part agreed, is that he had had several prior meetings with Brown concerning raises, promotions, and transfers, and that on this occasion he called Brown in to discuss a department transfer, asking Brown, if he were interested After 10 or 15 minutes, Marcus mentioned the fact of the Union attempting to get in, to which Brown replied that he did not want to get involved Marcus then said "you have got to get involved," and gave him his "pet speech." Marcus told Brown that he had the right to vote and that he had to vote Marcus told Brown that he did not think a union would help the employees. Alluding to the fact that Brown had been in his office 3 or 4 times discussing transfers, promotions, and raises, Marcus said that if a union came in he might give up his right to bargain, and would have to bargain collectively Marcus closed by saying that "no one can make you join or not join." Marcus denied that statements attributed to him by Brown to the effect that he knew he was a union leader and asking Brown to discourage the employees from joining the Union.14 Former employee, Frank Quebedeaux, testified that about a week before he was laid off, which would place it around September 19, his foreman Donald Nezat approached him in the nipple depaitment Nezat allegedly told him that he did not want to catch anyone saying anything about the Union in the plant, that he had a right to let them go. According to Quebedeaux, Nezat admitted that he himself was for the Union, but could not talk about it Confronted with Quebedeaux's testimony, Nezat specifically denied the state- ments or even talking with Quebedeaux about the Union other than, at some point, that he should vote, that he had a right to vote in the election.' 5 Machine operator, John Lemelle, one of three Lemelles to appear herein, testified that about 2 or 3 weeks before the November 8 election, at the new plant, his foreman, Wayne Manuel called him and his friend, James Marcel, aside and told them that if they voted for the Union they would first have to put down $50 and there would be a lot of trouble paying Union dues every month. Marcel was not called as a witness herein, and Manuel, although testifying that a few people had asked him questions concerning induction fees and similar matters, denied emphatically that he had made the statement to Lemelle and did not remember ever having had any union conversation with him. Even on the basis of the testimony of John Lemelle, whom I found to be a truthful witness, I find the conduct of Manuel here to be unobjectionable Employee William Lemelle testified that, about 2 weeks before the election, while working at his machine, Manuel spoke to him, saying that the best thing he can do is to vote against the Union, that he should "go and vote no " When Lemelle asked him why, Manuel replied, "If you don't you will lose your job." Lemelle said he would think about it Lemelle testified further that on the day of the election, Manuel again told him while at his machine to vote, but to vote "NO," because if he voted "YES" he would lose his job. Manuel, when asked about these two conversations, could not remember having had any union conversation with William Lemelle and specifically denied telling him to vote against the Union, or that he would lose his job if he did not 16 According to the testimony of employee Albert Thomas, a couple of days before the election or the day of the election, Manuel told him, in the presence of employee St. Amand, that "Whatever I did was up to me, it was my own opinion. He had dealt with Unions and it was no good " Upon having refreshed his recollection by referring to his pretrial affidavit Thomas testified further that Manuel said that "We could close the plant if we went on strike and we would no longer have a job " On cross-examination, Thomas changed his testimony slightly, testifying that Manuel said "If the Union would come in they would call a strike or something or we would be out of a lob," or might be out of a job Employee St Amand did not testify in this proceeding, and although not questioned directly about this conversation, Manuel denied making any statement to any employee concerning his being fired if he voted for the Union, or any similar statement I must rely upon Thomas' modified version of this rather than Manuel's general denial, which I find unobjectionable. Employee Preston Johnson testified that a day or two before the election Manuel called together the second shift employees in the union department, and told them "if anybody voted for the Union there would be no union and they wouldn't have no job " Although Johnson testified that Albert Thomas was present, Thomas denied any knowledge of it Manuel, although denying the statement attributed to him by Johnson, admitted assembling his men together on this occasion, and telling them that they were going to have an election and that Davlrn wanted them to go out and vote regardless of how they voted. Johnson, for the first time on cross-examination, testified to an incident which allegedly occurred two or three days before the election. According to Johnson, Davhn called the second shift employees in his department together and, in the presence of Manuel, told them that if they voted for the Union they would be out of a job. He later testified that Davlrn said "all who would vote for the Union would be fired " Johnson could not remember the names of any of the employees who allegedly were present. Manuel was not specifically asked about this, and Davlrn denied emphatically that he ever said this to anyone' 7 14 Brown, on cross-examination , first could only recall the Union discussion during this conversation , and could not recall the Job and transfer matter Later, however , he remembered asking Marcus for more money and that this was the basis for the whole conversation with Marcus. Brown also corroborated Marcus ' testimony concerning his right to accept or reject the Union To the extent that they conflict, I credit Marcus ' testimony over that of Herbert Lee Brown. 15 This is the only incident involving the Union attributed to Nezat Quebedeaux 's testimony reflects some bitterness over being "fired," which had taken place the week before the alleged occurrence. This, coupled with the fact that there is no evidence of people talking in the plant or of Quebedeaux's activity , if any , for the Union, which would have prompted Nezat to engage in this conversation , I credit Nezat's denial of the statements attributed to him by Quebedeaux 16 I was very impressed with William Lemelle as he testified in a most forthright manner, and less so with Manuel I credit William Lemell over Manuel with respect to these two conversations 1 7 1 was totally unimpressed with the demeanor of Johnson while testifying This fact , plus the absence of corroborating testimony from any of the second shift employees , compels me to discredit his testimony as to these two alleged meetings. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Former employee Rogers Brown, who acted as an observer for the Union at the election on November 8, testified that several days before the election, Davlrn approached him at his machine and asked him if he knew something about the Union When Brown replied that he did not, Davlin allegedly retorted with "I think you do," and walked away shaking his head. Davlin admitted stopping and talking with Rogers Brown, and asking him what benefits he though the Union could bring to employees there, but that Brown's head shake and no response put an end to the conversation. Davlrn denied, credibly so, having had this conversation with Brown. For reasons set forth above relating to a lack of confidence in Rogers Brown's veracity I do not credit his testimony as to this alleged incident. Conclusions Based upon the credited version of the above conversations, I find the following conduct, and only such conduct, to constitute interference, restraint and coercion of employees within the meaning of Section 8(a)(1) of the Act, (a) The statement of Plant Manager Marcus to Herbert Lee Brown in September, after Brown had expressed his desire not to get involved with the Union, to the effect that he had to get involved and that he had to vote, (b) Supervisor Manuel's telling William Lemelle two weeks before the election to vote against the Union and that if he did not he would lose his job, (c) Supervisor Manuel's further statement to William Lemelle on the day of the election to vote against the Union, that if he voted for the Union he would lose his job. October Wage Increase The parties stipulated that a wage increase was granted by the Respondent effective October 9, involving 36 of the 113 employees then in the Company's employ. The Respondent's action in raising the employees hourly rate from $1.40 or $1.45, depending on their preexisting wage, to $1.50, resulted in all employees receiving at least a minimum of $1.50 per hour. Thus, the $1.50 rate replaced $1.40 as the starting salary rate for all newly hired employees The complaint alleges that the Respondent, in granting this 5 and 10-cent hourly wage increase on October 9, did so for the purpose of inducing the employees to reject the Union as their bargaining representa- tive in the election conducted on November 8, in violation of Section 8(a)(l) of the Act '8 In support of its position refuting this allegation, the Respondent elicited testimony from its president, Davlln, and its plant manager, Marcus, reflecting that when the Opelousas plant was first opened in February 1966, with few clerical exceptions, the minimum hiring wage was $1.40, which was 15 cents above the then existing federal minimum wage require- ment According to Marcus, commencing in June or July 1967, at a number of regular weekly meetings of top management, some but not all of which were attended by President Davlln, the problems concerning difficulty in hiring and retaining employees, particularly trained employees, were discussed. One of the proposed courses of action was that of raising the minimum hiring wage. At the same time it was recognized that, as of February 1, 1968, the federal minimum wage was to increase to $1.60 Finally, around the middle of September, with the concurrence of President Davlrn, for both of the reasons just mentioned, it was decided to make the change, but rather than to grant the 20-cent raise to $1.60 at one time which was considered bad policy because employees would become accustomed to such an increase when future raises were granted, it was decided to effect the raise in two steps, to $1 50 on October 9, and to $1 60 in January 1968 just prior to the effective date of the new federal minimum wage This was done. During November, shortly after the time that the increase was put into effect, the Respondent found it necessary to reduce its work force and proceed to lay off a large number of employees. According to Davlin, he foresaw the potential need for a layoff several months in advance, based in part upon the loss of productivity caused by the anticipated fall move into the new plant 19 Davlrn also was aware well in advance that the Company would experience a "tight financial situation" at least until the first part of January, an awareness which was fulfilled compelling the Company to stop "the flow of material for that interim period " According to Davlin, layoffs should have occurred earlier but because of "the union activity that apparently was floating around, petitions and what have you," he decided that a general layoff would possibly be misconstrued. Therefore, the Company kept employees busy cleaning and painting the new plant and moving new machinery, until after the November 8 election "where [sic] there was nothing to misconstrue " Conclusion The General Counsel contends that the Respondent's action was intended to induce the employees to reject the Union The Respondent, as articulated in its brief, asserts that the wage increase "was based upon sound company policy established as early as June or July 1967, and was put into effect solely to carry out existing company policy and not with the intent of influencing the results of the election." The fallacy in Respondent's assertion in this regard is the erroneous premise upon which it is laid. Thus, the facts disclose, as testified to by Marcus, that, although the possi- bility of a raise was discussed as early as June or July, the policy decision to in fact grant the raise and to make it effective as of October 9 was not made until about 3 weeks before the October 9 implementation Accordingly, and contrary to the Logan Company case 20 relied on by the Respondent, not only does the record fail to establish such increase was put into effect as a continuation of established company policy, it fails to support the Respondent's assertion 18 At the start of the hearing , the Respondent moved to strike paragraph 13 of the complaint , which pertains to the wage increase, on the ground that the charge herein did not allege such as a Section 8(a)(1) violation, and thus, the complaint did not conform to the charge I denied Respondent's motion To the extent that such is renewed in Respondent 's brief on the further ground "that at no time, either contemporaneously with the filing of the charge by UNION or subsequent thereto during the investigation conducted by the BOARD did either UNION or BOARD raise an issue concerning the propriety or legality of the wage increase ," I reiterate my ruling denying the motion 19 Oddly, however , Marcus , who recommended the wage increase to Davlrn, and secured his approval before effectuating the increase, testified that there had been no discussion of a large layoff and that he personally had not anticipated one. 20 Logan Company, 171 NLRB No. 83 STANDARD FITTINGS CO. 49 that the decision "was made at a time totally unsuspecting of union activity ..." and therefore could not have been in- tended to influence employees to vote against the Union In fact, the instant circumstances are more in line with several of the Board's recent decisions21 particularly the United Food case, for, here as there, no wage increase had ever before been granted the employees and at the time of the decision to raise the minimum wage the Respondent was not only well aware of the Union's attempt to organize the plant but had already engaged in unlawful activity to discourage unionization among its employees Further, I find totally unpersuasive Davlin's attempted justification of the wage increase during a period when the Company was in a "tight financial situation" and followed by the necessity of laying off a large number of employees Accordingly, I find that the Respondent's decision and the effectuation thereof, to grant hourly wage increases to a substantial number of its employees commencing October 9, was reasonably calculated to impinge upon the freedom of its employees in their choice for or against the Union in the forthcoming election.22 This I find to constitute interference with the rights guaranteed employees by Section 7 of the Act, and therefore, violative of Section 8(a)(1) of the Act. IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent had engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act Upon the basis of the above findings of fact and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Standard Fittings Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truckdrivers Local 201, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Independent, is a labor organizat- ion within the meaning of Section 2(5) of the Act 3. By interfering with, restraining and coercing its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Standard Fittings Company, its officers, agents including its attorney, successors, and assigns, shall 1 Cease and desist from (a) Threatening its employees with the loss of jobs for not voting against the Union, and soliciting employees to campaign against the Union (b) Instigating and preparing a petition, and soliciting employees to sign the petition, calling for the revocation of signed union authorization cards for the rejection of the Union (c) Interviewing and interrogating employees individually and separately with respect to union matters without adhering to established safeguards (d) Granting wage increases to employees in order to influence their desire or decisions with respect to union activity However, nothing herein shall be construed to require the Respondent to rescind or discontinue the wage rates previously granted. (e) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which will ef- fectuate the policies of the Act- (a) Post in conspicuous places at its Opelousas, Louisiana plant, including all places where notices to employees are customarily posted, copies of the notice attached hereto and marked "Appendix B." 23 Copies of said notice, on forms to be provided by the Regional Director for the Region 15, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director for the Region 15, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith 24 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any unlawful conduct other than as above found. 21 See United Foods, Inc., 170 NLRB No. 15 1, Kellwood Company, Ottenheimer Bros. Mfg. Division, 170 NLRB No 183, and Kellwood Company, Southern Division , 170 NLRB No 184. 22 N.L.R. B v. Exchange Parts Company , 375 U S 405, where the Supreme Court of the United States recognized that "the danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove " 23 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 24 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 15, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A APPENDIX B STANDARD FITTINGS COMPANY P.O Drawer A D, Opelousas, Louisiana Phone (318) 948-8211 September 8, 1967 I have dealt with a union before They promised job security, higher wages, easier jobs, strike benefits. They brought a strike followed by violence and hate Job security-they set up picket lines people were afraid to cross Almost everyone gave up their jobs Higher wages-they brought no wages. New employees as they produced more received higher wages Strike benefits-donuts and coffee Job security-We review every man fired with top manage- ment-there must be a good reason. Higher wages-We have maintained overtime hours to give you higher take home pay We have installed incentive systems to be carried further, based on higher productivity. We have trained people to be able to produce more. We have tried to promote people who showed initiative to higher jobs, and hope to continue this policy when we ex- pand in the new plant. Lay-offs-There have been no lay-offs even when shortages of material or orders indicated same I do not want a union in this plant I do not intend to collect dues and initiation fees and other fees out of your pay check You pay a union if you want to I do not intend to have a plant where everyone must belong to the union. This is a free country. As owner and as president of this company, I do not intend to have anyone tell me how to do my job. We cannot afford higher wages except through production There is no unemployment compensation for strikers. Other people may hesitate to hire a striker For many of the above reasons we had a strike. Everyone was forced to give up their jobs by imported strike line people We waited a while We hired a whole new labor force We trained them. We are still in business. The president of the union trying to organize us is in a Federal Penitenary I would like you to sign a card stating that at this time you do not want the Teamsters Union in this plant. I do not believe that the union can get anything for you at this time They have in places, caused doing away with overtime, piece rate, and lay-offs Their dues will come right out of your pocket Very truly yours, Erwin Davlin, President NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act we hereby notify our employees that WE WILL NOT threaten our employees with the loss of jobs for not voting against the Union, and WE WILL NOT solicit employees to campaign against the Union WE WILL NOT instigate and prepare a petition, and solicit our employees to sign the petition, calling for the revocation of signed union authorization cards and for the rejection of a union WE WILL NOT interview and interrogate our employees individually and separately with respect to Union matters without adhering to established safeguards WE WILL NOT grant wage increases to our employees in order to influence their desires and decisions with respect to union activity However, we will not rescind or discontinue the new wage rates we previously granted. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist General Truckdriver Local 201, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain, or to refrain from becoming or remaining, members of General Truckdrivers Local 201, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization STANDARDS FITTINGS COMPANY (Employer) Dated By (Representative) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Office Building (Loyola) 701 Loyola Ave., New Orleans, Louisiana 70113, Tel. 504-527-6361.