Truss-Span Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chatfield-Anderson Co., Inc. d/b/a Truss-Span Com- pany and Line Drivers, Pickup and Delivery. and Helpers Union Local 741, International Brother- hood of Teamsters, Chauffeurs, Warehousemen' and Helpers of America. Cases 19-CA-8396 and 19 RC 7895 May 15, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 26, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings. findings, 2 rec- ommendations, and conclusions of the Administra- tive Law Judge and to adopt his recommended Or- der. as modified herein.3 Contrary to our dissenting colleague. Xwe agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(1) of the Act through Vice President Chatfield's remarks at a pre- election meeting with employees on March 23, 1976. At the meeting, ('hatfield commented, inter alia,. on the stringency of some of the work rules contained in the union contracts of some of Respondent's compet- i Respondent's request fr or al a.rgument is herebh denied ats the ;o.c rd and briefs adequately present the issues and positions of the parties. 2 Respondent has excepled to) certain credihiliti findings mIde h b the Admlnnisltaie t I..aiw Judge It is the Board's estahlhshed pohlic not to i)cr- rule an Admlnlistratie l.a; Judge's resolutions with respect toi crediblhlt unless the clear prepundera nce of a f f the releslant ekideince contvincei us that [he resolutlOn.s ire incorrect .Standard Drt I f:j/ Proi,/I I/l, ' 91 NlRB 544 (19S01. enfd 188 F d 3h62 ('.A. 3. 1951) We hLa'e calltillh ex.amined the record and find no hasis for reersing his findintgs Addititonall'. we are siatlsfied that Respondenlt's conltenltiolls hill tlC Xd nin lstratle l.au Judge .as hiased tire without riteri Ihere is lthilln, II the record toI suggest that his conduct at the hearing. his resol utlon1s 1 of credibiih. or the inferences he dtew were affected hb an'. hbias or prelLdlc In hi.s recommended O(rder, the Adminlrsraltlt e I.aw ludge recotll- mended, Ilner /lia, thalt Respondent he required to make tlh unit CelpliiC.m., whole for ian, lossh of ealrnings the>: malN ha;ie suffered as a reSell of Responl- dent's unilaleral Institutlnon of1 a new wage ssterm. rettoactive to Jutie 19'7 hut did not proeide interest thereon. We therefore shall modif, hfit re-r menlded Order to provide interest. and in vie e of ,our recent deci..ion al l1,hida Sieel C orporatrtnn, 231 Nl.RB 651 (1977). we shall aisLo Illtoditx the Adminlistratite l.atw Judge's recommended Order to prol.ide thait sulh 111itl est halli he comltputed in the .manner .et forth therein itors and stated that Respondent would not institute more stringent work rules "win, lose, or draw." In finding this statement unlawful, the Administrative Law Judge, noting that the avowed purpose in mak- ing the remark-to show that union contracts are not all "sweetness and light"--in combination with the overall context of Chatfield's and President Novak's remarks at the meeting, which included other unlaw- ful statements, imparted a threatening taint to the reference to more stringent work rules. Furthermore, in early March, Novak, showing two employees cop- ies of the union contracts of several competitors, told them that Respondent could negotiate more strin- gent work rules if the Union got in and, referring to Respondent's then liberal policy with respect to tar- diness, stated that this tolerance "was going to change." Our dissenting colleague does not disagree with the finding that Respondent violated Section 8(a)( ) in this early March incident. Given this prior incident and our agreement with the Administrative Law Judge's finding that Respondent violated the Act at the March 23 meeting in other respects, we conclude that Chatfield's reference at that meeting to more stringent work rules was clearly violative of Section 8(a)( ). We further agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(a)( ) through Novak's remarks at the March 23 meeting concerning the relaxed eligibility require- ments for Respondent's pension and profit-sharing plan due to the Pension Reform Act of 1974. In this regard, the Administrative Law Judge found that Re- spondent's announcement of the changes in its plan was part and parcel of its unlawful attempt to dis- courage employee support for the Union in light of the fact that Respondent chose to make the an- nouncement on the day prior to the election despite having learned several days earlier that the Pension Reform Act mandated such changes and in view of Respondent's other unlawful conduct. Our dissenting colleague concludes that Novak was merely truthful- lNs advising the employees of the relevant provisions of the Pension Reform Act. However, in so doing, she apparently does not dispute, but gives no weight to. the fact that Novak in his remarks also unlawfully stated to the employees that Respondent's pension and profit-sharing plan "would be dropped" if the Union were voted in. Like the Administrative Law Judge, and unlike our dissenting colleague, we are unwilling to evaluate Novak's announcement of the changes in Respondent's pension and profit-sharing plan in isolation. Accordingly, we find such an- nouncement to be unlawful. 4 4 Our d(.iNsetting c olle. gue argue ht n (tht G in ol Inimei ( 'rp d h a Ret'li I ,ta' c ('i ema. 228 NL RB 377 (1977) is. Wholl inappos.ite here A, She 50 TRUSS-SPAN COMPANY Contrary to our dissenting colleague, we further conclude that Respondent violated Section 8(a)( 1) in Novak's statement in February or early March that there would be no raises or bonuses until after the election "because it could look like a bribe," but that Respondent would grant retroactive raises after the election "no matter which way it went." Once again, she has chosen to view the remarks of the company president in a vacuum. In this regard. we note that the employees were told by Respondent's officials during a December 1975 party that they would re- ceive quarterly raises in April 1976. The record does not indicate that Respondent in December informed the employees that such raises would be applied ret- roactively and, indeed, Respondent does not contend that it has a practice of granting retroactive increas- es. Furthermore, at the March 23 meeting. Chatfield blamed the withholding of raises on the "union situa- tion," and urged the employees to vote "No" so that Respondent "could make it up to them." Additional- ly, in early March, Novak told two employees that the only way they could get a raise during negotia- tions would be to engage in an illegal strike. Finally. in early March, Auburn Plant Manager Dickoff told employee Heide, in response to the latter's inquiry as to why some expected raises had not materialized. that raises were "at a halt because of the union activ- ities," that the employees would have received the raises "if they had not brought the Union in." and that Respondent "would try to drag out . .. the elec- tion as long as [it] could, where nobody would get their raises." Our colleague apparently agrees with our finding that these other statements, including those of Novak himself in early), March, were unlaw- ful. Yet, completely ignoring this background of threats to withhold raises, she concludes that No- vak's statements concerning the retroactive raises was lawful. We simply find no basis for such a con- clusion.5 points out, in that case the respondent in announcing wage increases did not mention to the employees that such action was required b) the State's new minimum wage law. Significantly, however. in finding a violation in that case the Board. including our dissenting colleague. looked to both the tim- ing and the context of the announcement. Furthermore. her reliance on Red Barn Srsiem, Inc., 224 NLRB 1586 (19761. is clearly misplaced. here. the Board affirmed the Administrative Law Judge's finding that the announce- ments of wage increases were "carefully utilized as legitimate means or subjects available to management during the unionization effort." 224 NLRB at 1598. In contrast. Noak's announcement of the relaxed eligibility requirements for Respondent's pension and profit-sharing plan cannot rea- sonably be considered to have been carefully utilized as a legitimate mean, in Respondent's campaign inasmuch as at the same meeting Novak unlai- fully threatened that the plan would be dropped if the Union came in. 5-In support of her conclusion. our dissenting colleague relies on .1,ntaina Lumber Sales Inc (Delaney & Sons Dilision), 185 NLRB 46 (1970). and Uarco Incorporated. 169 NLRB 1153 (1968). However. in each of those cases the Board emphasized that the employer had made clear in its campaign statements to employees that the only reason for postponing expected hene- fits was to avoid the appearance of election interference. In viev, of Respon- Finally, we agree with the Administrative Law Judge's finding that Respondent's conduct herein precludes the holding of a fair election. Thus, as enu- merated by the Administrative Law Judge, Respon- dent engaged in not only pervasive, but sometimes flagrant, violations of Section 8(a)( ) involving threats of economic retaliation against the employ- ees, including, inter alia, plant closure, 6 the withhold- ing of raises, the cessation of the pension and profit- sharing plan, prolonging negotiations during which time raises and bonuses would not be granted, and the withholding of overtime. In these circumstances, we conclude, as did the Administrative Law Judge. that the issuance of a Gissel bargaining order 7 is fully warranted herein.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge. as modified below. and hereby orders that the Respondent. Chat- field-Anderson Co.. Inc. d b a Truss-Span Compa- n'. Redmond and Auburn. Washington, its officers. agents. successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: I. Substitute the following for paragraph 2(b) of the recommended Order: dent ' other unla'iful threats to wlthhold raises and bonuses. hb not onnl st, planl manager but by its president and Nice president as ell. he cases relied on bh our colleague are clearlv Inapplicable here t Ihe Administrative Law. Judge concluded that Respondent violated Sec 8((atI ) by Auburn Plant Manager Dickoff's threats of plant closure to em- plovre Heide In mid-Fehruars and late Fehruarv 1976, and bh Superx\is,r (;ilmore's Februar! 26 threat ,f plant closure to ('lark. an emplosee at the Redmond plant Respondent excepts to these findings on the grounds. i,l'r alia. that (ompany President No,ak in his speeches to employees on Febru- arN 26 and March 23 assured them that the plants would not close dow n The record slearly showvs. however. that Giilmore's threat occurred immedl- alely following Nosak's speech on Februars 20 Furthermore, In his subse- quent meeting with emploees In late February or earls March. and in his speech to employees on March 23, as well as on other occasions during this period. Novak tirade numerous statements which we ha.e found were un- lawful We therefore find that Nov.ak's purported assurances to the employ- ees did not effectively repudiate the threats of plant closure by Respon- dent's supervisrors and. accordingly. we adopt the Administrative I.aw Judge's conclusion that such threats were violative of Sec. 8(a)( I )of the Act Grroup Onei Broada:tlrng Co,. Resti. 222 NLRB 993 (1976) Our dissenting colleague concedes that threats of plant closure are gener- alls presumed to he widely communicated and finds that No.ak's purportied disavoal of any intention bh Respondent to close its plant mas not totally haie erased the coercive effects of the such threats She nevertheless "he- he'e," that Novak's purported disavowal clearly blunted the "stinging im- pact" of such threats s With all due respect. we find iour colleague's reason- inm at best. specious. N I. RB v. Gisel Pal-ing C (, Inc. 39"5 L S 575 (1969) We agree with the Administrative l.aw Judge's conclusion that Respon- dent's bargaining obligation arose on February 20. 1976. the date of the L nion's demand and on which it achieved majority status. inismuch as Respondent commenced its course of una,r ful conduct on or about that daite Irirlrnit Prt. In,. 219 NI RB 298 7 s) 51 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD "(h) Rescind those features, if ans, of the new wage system instituted in June 1976 that work to the employees' detriment and, upon request. bargain with the Union concerning the new wage system. Make whole any employee in the unit for losses they may have suffered as a result of Respondent's unila- teral institution of the new wage system, retroactive to June 1976, with backpay and interest thereon to be computed in the manner prescribed in I: W1'. W0oolworth ('oelpanr1I. 90 NLRB 289 (1950). l.siv Plunrhin d, e& aeltint ('o., 138 N1,RB 716 (1962), and Florida Steel ('orporation, 231 NLRB 651 (1977). Nothing contained herein shall he construed as au- thorizing or requiring Respondent to reduce wages and benefit levels now in effect." 2. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs accordingly: "(c) Preserve and, upon request, make available to the Board or its agents, for examination and coping. all payroll records, social security payment records. timecards. personnel records and reports. and all other records necessary to analsyze the amlounlt of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the Administrative L.aw Judge. II is I t RIi R ()ORD)tRI I) that the election in ( ase 19-RC 7895 be. and it hereby is. set aside, and the petition filed in ('ase 19 RC' 7895. be, and it herebh is, dismissed. MI-M'I R MttlRIYi, dissenting in part: Although I agree with my colleagues' findings that Respondent variously violated Section (a)( l) of the Act and interfered with the election, I disairee that certain of the incidents found coercive bv them vio- lated Section 8(a)( I ). I also disagree with their con- clusion that a Giv.vel bargaining order 9 is warianted and that Respondent additionalls violated Section 8(a)(5) of the Act by instituting a new wiage systerm in June 1976. Unlike my colleagues, I find no violation in Vice President Chatfield's remarks at a preelection meet- ing with the employees on March 23. 1976. At this meeting Chatfield pointed to some of the strict work rules contained in union contracts of Respondent's competitors. and told the employees that Respondent did not intend to impose such rules "win, lose, or draw." Rather, he explained that he wanted employ- ees to know that union contracts are not all "svseet- ness and light." I can find nothing whatever coercive in these remarks, particularly in light of Chatfield's assurance that Respondent did not intend to impose the more stringent work rules at its plant regardless of how the employees voted in the election. "' Si H ( ii, , ' I lit,( A jtr ( 5 It, 3 ( S ci7 tt 1 i , t) Similarly, I find no violation in President Novak's remarks at the same meeting. During this meeting, printed material was distributed to the employees which included a description of Respondent's pen- sion and profit-sharing plan and of the Pension Re- form Act of 1974. Novak declared that Respondent had just learned that, because of the 1974 act, the eligibility minimum for participation in the plan had been lowered so that certain of its employees who were previously excluded from coverage in the plan could now be covered. TIhe record shows that Novak had learned of these relaxed requirements only a few days earlier upon making an eligibility inquiry to the bank that administers Respondent's plan. In these circumstances, I find nothing improper in Respon- dent truthfully advising the employees of relevant provisions of the 1974 Pension Reform Act.'' In find- ing a violation here, the Administrative Law Judge, and my colleagues who adopt his [)ecision, rely on Renton ,'ilhge ('inema. 12 That case. however, is whol- ly inapposite. There, according to the credited testi- mony, the emploser's theater manager simply in- formed the employees at a meeting that they would receive a wage increase because they were underpaid. Although the manager testified that he made the an- nouncement pursuant to the State's new minimum w;Sie law,. the Administrative Laws Judge credited the employees' testimony that no mention was made by the manager of that law in connection with their raise. TIhat case, therefore, does not support a finding of a violation here. See, instead, Red Barn S'.vtenm s'ipra at 1597 98. I also disagree with my colleagues' finding that Re- spondent violated Section 8(a)() I ,, Novak's state- ment. during an employee meeting in late Februars or earl's March, that there would be no raises or bo- ni.ss until after the election "because it could look like a bribe." but that retroactive raises would be forthcoming after the election "no matter which way it went." Neither the Administrative Law Judge, nor l" 1 .e iltatlrl\ igl ore, this ,l; uralncc and its clear Inmpllcations i finding ( hiftield's abo.h e remarks to be .ioalilI\e ,f hl(a)(). chioo.ing instead to tie such remari.ks in i ith the unla..ful statemcnt ttmade b; Noak ,o toI, em- pliee it eilJl\ Ma.rch I fail io wse ho Nov;k's sepa(rate totmment to hilt t;o ernplol ee, ncegle ( hmfield's tlnequl\ocal auirance to al1l the enlplo!- cc, Ithat ResponrdenCt ,ould not impoe nlore stringent oork rules ilhsenlt o,,Te cldence that ( halfield did n.t mea. n what he s;id [ R/ed Barn S. itLItn, I,c 224 Nl RB K586. 1597 98 ( 1976)1 1! colle;lgue, Iakhe mllluch ,I the fidc thitl this a;llnounlcemrentl as nmade the da, beftore the clectior. o Bu til ie ,,Oi nlllitI if tlhe announceinln to t te election o,es, signifi- can Ilhere therC ihe rela;.ed eligihilit) requirementts were only learned if a fco, dat before and tihus the ilmiltg of the annmtuncement cannot fairl h be a1d I,, hav;e been tiidul delaxed I h;t Nov;ak later iiformed Ihe emploh- cc i1hti Res;p..ltdcint, pl;ln ",ould he dropped" if the Initon became their rcprcenl;,ti\t c itoe not deitrac from these facts ;Ind Resporndent's right to .di,c Ilie eiplol ecs tl Ithe chi.inte,i inti;lt ed hs the Pension Reform Acl iirlcerilllt, the plani itself t" i,it- , (,, iti ( i,, /- ,I R, r. I,,i li/i, ( ,welil, 228 Ni RB 177 52 TRUSS-SPAN COMPANY my colleagues who adopt his Decision, cite any cases to support their finding that the foregoing conduct violates Section 8(a)(I). The Board, including both of my colleagues on the majority here, has long held that "where an Em- ployer had made clear in its campaign statements that its only reason for postponing expected benefits was to avoid the appearance of election interference. its action did not constitute objectionable conduct sufficient to set aside an election." Montana Lumber Sales, Inc., 185 NLRB 46, 49 (1970); Uarco Inucoro- rated, 169 NLRB 1153 (1968). Since the conduct is insufficient to set aside an election, a ortiori, it is also insufficient to sustain an 8(a)(1) violation. Further- more, here, as in L'arco, supra, the Employer assured the employees that the raises would be forthcoming after the election, and would be made retroactive "no matter which way it [the election] went." Accord- ingly. I find no violation in this conduct.' Although I agree with my colleagues that Respon- dent committed several violations of Section 8(a)( I ) including three threats of plant closure, I disagree with their conclusion that the violations cannot be eradicated by our usual remedies and that a fair elec- tion cannot be held. While the impact of threatened plant closure is normall) deemed among the most devasting to the employees' free choice in an elec- tion, I think the threats made in the circumstances here were limited in their impact. Thus. two of the threats were addressed by Dickhoff to employee Heide. and the third was uttered by Line Supervisor Gilmore to emploxee Clark. There is no direct evi- dence that these threats were communicated bN Heide and ('lark to other employees. Although such communication is generallN presumed. I find signifi- cant that Respondent's president, Novak. at imeet- ings with all employees on February 26 and March 23, expressly disasowed any such threats and assured the employees that Respondent had no intention of closing the plant. And, while Novak by his state- ments mai not totally have erased the coercive ef- fects of the threats. I believe that he clearly blunted their stinging impact. In all of the circumstances. I am not persuaded that the effects of Respondent's coercive conduct cannot be eiased hb oui usual remedies, and that a fair new election cannot thereafter be conducted. Ac- :Ix h T cllIA t.lgls dtIaIgrCe e V, ri F len pr .iaril because N.o%.,k and otelcr kltilcl, 'I .,II ihcr c1,ht , l t' N : t1 t t Ihrcatenin : v. ithholdin oif r.tis -ttl,~c tf [t. [ nll1 ,in. d thu, h' hes colntlid', iaga 'in tuch :i 1,ck - orillinj N , \ ak.' b,.ll Clnilts re,'.rrdilli the Itiroacil.c r;llase must be dicented ,.4,cIIC I hIls h o it[ Ig1. ,rcs It et:lr Iitlip i, of N tA'k' statements in qucs- tlot1ll . d il eiltc aI. i rlltlluLllt liplpi,;il h uhich piesun:cs Ihat. i nice s Int -lmrulle¢ s fI N.Oislk* ,h ' I ICl I .ll Cre tIl ful , atill such reminrk's must be .o ch tr. cr]/ed IAnd f~ind this to me is ain unactep blHe osIltsnlr filli ioeC .I1 ail xId k th tIle rnlst n , f p h-tll Noiak said cordingly, I find the issuance of a Gissel bargaining order inappropriate here. And, since I find that Re- spondent therefore was not obligated to bargain with the Union upon its request in February 1976. 1 also cannot find that Respondent violated Section 8(a)(5) and (I) of the Act by instituting a new wage system in June 1976. In sum, I would set aside the election conducted on March 24, 1976, and direct that a sec- ond election be conducted at such time as the Re- gional Director deems appropriate. APPENDIX Nol('i. To E1PIPO' EES Pos ED B\ ORDER OF THE N\i(IONAI. LABOR RFIATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive the) choose To act together for collective bargaining or other mutual aid or protection To refrain from anL or all such activity ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-hargaiirng agreement which imposes a lawful requirement that employees become union members. XX" \i il t()I interrogate our employees con- cerniin their union activities and those of their coworkers. nor xwill Awe tell our emplohees: (I) that \we will go out of business should thes oh- tain union representation; (2) that we \will pro- long negotiations should a union get in, during whlich time no raises or bonuses can be granted: (3) that the only ,;'as raises could be obtained during negotiations oouild be by striking, whiich swould be illegal: or (4) that a union contract w ould result in more stringent work rules. WF 1\ill. \)I sat t) to our emploeCes: (I) that the pas roll would have to be cut back if a union .ot in because of increased operating costs: (2) that overtiime is being withheld because tof the unlion situatlioll: (3) that raises and bonuses halve been blocked bh the LUnion's presence. and that raises alt-eadrv s ould have been receixed if the enmplo ces had not hbought the I lnion in: (4) that. after the LUnion is out of the pict !re. tile emplolees , will be taken care of and retroactise raises granted: or (i) that their pension and 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD profit-sharing coverage would end should the Union get in. WE WILL NOT say to our employees, for the purpose of discouraging their support of the Union, that we have just discovered that the eli- gibility rules for the pension and profit-sharing plan have been relaxed, or that we are estab- lishing an "open-door policy" in the form of monthly meetings to deal with employee griev- ances. WE WILL NOT refuse to recognize Line Drivers. Pickup and Delivery, and Helpers Union Local 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in the appropri- ate unit, and WE WILL NOT institute a new wage system without giving that Union a chance to bargain over it. The appropriate unit is: All production, maintenance, and truckdriv- ing employees at our Redmond and Auburn, Washington, facilities, excluding office clerical employees, outside salespersons, guards, and supervisors as defined in the Act. WE WIL.L NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed by Section 7 of the Act. WE WILL, upon request, recognize and bargain with the above Union as the exclusive represen- tative of all the employees in the appropriate unit; and, if an understanding is reached, em- body it in a signed document if asked to do so. WE WILL, rescind those features, if any, of the new wage system instituted in June 1976 that work to the employees' detriment and WE Wll. upon request, bargain with the Union concern- ing the new wage system. WE WILL make whole any employee in the unit for losses they may have suffered as a result of our unilateral institu- tion of the new wage system, retroactive to June 1976, together with interest thereon. Nothing herein shall be construed as authorizing or re- quiring us to reduce wage and benefit levels now in effect. CHATFIELD-ANDERSON Co., INC. d/b/a TRUSS-SPAN COMPANY DECISION STATEMENT OF THE CASE RICHARD J BOYCE. Administrative Law Judge: This con- solidated matter came to hearing before me in Seattle, Washington, on February 15, 16, and 17, 1977. The charge in Case 19-CA-8396 was filed on March 2 and amended on March 31, 1976, by Line Drivers, Pickup and Delivery, and Helpers Union Local 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein the Union. The complaint issued June 30, 1976, was amended on January 15, 1977, and during the hearing, and alleges violations by Chatfield-Anderson Co., Inc. d/b/a Truss-Span Company, herein the Respondent, of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended, herein the Act. An election in Case 19-RC-7895 was held March 24, 1976, among the production, maintenance, and truckdriv- ing employees at Respondent's plants in Redmond and Auburn, Washington.' It derived from a petition filed by the Union on February 20, 1976, and a stipulation for cer- tification upon consent election approved by the Regional Director for Region 19 on March 10. The election tally was 7 votes for and 14 against the Union, with 2 challenged ballots. The Union filed objections to the conduct of the election on March 31, 1976; and, on January 7, 1977, the Regional Director issued a Report on Objections, Direction of Hear- ing, and Order Consolidating Cases in which he recom- mended that certain of the objections be overruled, con- cluded that certain others presented "substantial issues of fact best resolved by a hearing," and directed that such hearing be consolidated with that on the complaint herein because the issues raised by the two "bear a close and inti- mate relationship" to one another. The Board adopted the Regional Director's action by order dated February 3, 1977. The parties were permitted during the consolidated hear- ing to introduce relevant evidence, examine and cross-ex- amine witnesses, and argue orally. Post-hearing briefs were filed for the General Counsel and for Respondent. I. JURISDICTION Respondent is a Washington corporation engaged in the manufacture of wooden roof and floor trusses at plants in Redmond and Auburn, Washington. It annually sells goods valued in excess of $50,000 directly to customers outside Washington, and annually purchases material val- ued in excess of $50.000 directly from suppliers outside the State. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I1. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. Trhe complaint alleges. the answer admits. and it is found that this is an appropriate unit for purposes of the Act: All production, maintenance. and truckdriving emplo)ees of Respon- dent at its Redmond and Auburn. Washington. facilities, excluding office clerical employees. outside salespersons, guards. and supervisors as defined in the Act 54 TRUSS-SPAN COMPANY 111 ISSLIFS The complaint as finally amended alleges that Respon- dent, by the verbal acts of its officials, committed 17 variet- ies of 8(a)(1) misconduct in February and March 1976. It also alleges that this misconduct was sufficiently serious to warrant a bargaining order remedy., and, therefore. that Respondent violated Section 8(a)(5) and (1) by rejecting a union demand for recognition on February 20. 1976; by announcing a change in eligibility for Respondent's pen- sion and profit-sharing plan on March 23, 1976; and by later instituting a new wage system "without notice to or bargaining with the Union." The answer denies any wrongdoing. Should a bargaining order remedy not be appropriate. the objections matter raises the additional question wheth- er misconduct by Respondent during the pendency of the election interfered with free voter choice, requiring that the election be rerun. IV THE AL.L.EGED UNFAIR LABOR PRA(TICFS A. Introductory Facts Respondent's Redmond plant operated on a two-shift basis at relevant times. The Auburn plant, 35 miles away. was under construction from early' fall 1975 through Feb- ruary 1976, becoming operational on or about March 1, 1976. Much of the construction work on the Auburn plant was done by employees reassigned from production tasks at Redmond. On February 26. coincident with the return of those employees to production and a slump in business. Respondent laid off nine employees. It is not contended that the layoffs were improper.2 Organizational stirrings among Respondent's employees began in January 1976. a major proponent being Dan Heide, one of the Auburn construction crew. On February 19. Heide met after work with an official of the Union, Dwight Lilly, whereupon Lilly described the Union's orga- nizational procedures. The two drove to the Auburn plant to look over the premises, after which they went to the Redmond plant. While at Redmond. they spoke with Re- spondent's night shift employees about the Union and passed out union authorization cards. Some of the employ- ees signed and returned the cards then and there. The next morning. February 20. Heide distributed cards to his coworkers on the Auburn crew; and, at noon, he returned to the Redmond plant, soliciting signatures from the day-shift employees. On the afternoon of February 20 Heide having delivered the additional cards he had ob- tained to Lilly. Lilly called on Respondent's president. Frank Novak, at the Redmond plant, demanding recogni- tion for the Union. Novak refused, prompting Lilly to file the election petition herein that same afternoon. Subsequent organizational meetings, during which cards were distributed, were held later on February 20, 26, and 29. In all, 28 employees signed cards. 23 on February 19 :Respondent's president. Frank Novak, told those laid off that thes would be called back "before se hired strangers" if business picked up Four vere recalled in April and 20. The unit consisted of 34 employees at the time of the demand, reducing to 24. of whom 21 had signed cards. with the 9 layoffs and I discharge. Details of the solicita- tion of cards are developed later. It was in this context that the alleged misconduct is said to have occurred. B. The .4 leged Independent Violations of Section i(aj(l ) 1. Paragraphs 8 and 17 Paragraphs 8 and 17 of the complaint allege that, sev- eral times in February 1976. Respondent, by Don Gilmore and Rick Ridgeway,. "interrogated employees as to wsho signed union authorization cards and as to how employees would vote in the election." thereby violating Section 8(a) Il)in each instance. On February 20, while soliciting signatures at the Red- mond plant. Heide sought out Gilmore in the parking lot to repay a $5 debt. During the transaction. Gilmore uttered: "So you're talking union?" To Heide's affirmative re- sponse. Gilmore stated that it was a "bad idea" and that, since he was a "company man." he would have to "let the bosses know." 3 Gilmore was a foreman at the Redmond plant, stipulated by the parties to be a supervisor. Also on February 20. a couple hours after receiving an authorization card from Heide, one of the Auburn crew, Dan Porter. was asked by Ridgeway if he had signed a card. Porter replied that he had.4 Ridgeway. a foreman in the construction of the Aubuin plant, later to become su- perintendent of that plant, was stipulated by the parties to he a supervisor. And, on February 20. 15 minutes or so after receiving a card from Heide, one of the Redmond employees. I auren Russell. wAas asked bs Gilmore what the card was and what Heide wtas doing there. Russell answered that Heide was giving out the cards to see if the employees "'would be interested in getting the Union in." Gilmore then asked if he could show the card to Novak. Russell refused the re- quest)' Finally, on an unascertained date in Februar.), during a telephone conversation, Gilmore asked one of the Red- mond emplo)ees. Danny Ireland, if he had signed a union card. Ireland replied that he had.6 It is concluded that the foregoing interrogations by Gil- more and Ridgeway violated Section 8(a)(l) substantiall\ as alleged. 2. Paragraphs 9 and 17 Paragraphs 9 and 17 of the complaint allege that, in this Is Heide's uncontradicted serslion of the Incident 4 This i, Porter's unconlradlcted sertsin of the In.idenl his is Russells uncontradicted .ersion of the incident, the onls uncer- daroil being the precise date. Russell testified thai it occurred on the date he signed his card. shlch hbears the date of Februars 29 a Sunda' He fur hcr testified lhat F ebruars 29 could not have been the correct date either oif hll sgning or tile Incldent. since both occurred .on the sitllr o, irkdas S.iunda sas noli a orkdas Russell later testificd thai he signed "the samne das. that niost of the otheri gus dov,:n a the plant 'nrnedJ ards." which ava. ehruar, 20 as concerns thse on the dad slirl l hornl Russell .as one 1 hi, s Irelanld's uincontr,.ei ted ,er ,t, f [he c tinldcn!t 55 )EC ISIONS (OF NATIONAL LABOR RELATIONS BOARD February 1976, Respondent, by Novak, Gilmore. and Stan Dickhoff. "told employees that if Respondent were union- ized it would shut down or go bankrupt," thereby violating Section 8(a)( 1). About a week hefore he began distributing cards. Ileide had a conversation with Dickhoff in Dickhoff's office in which they discussed the possibility of a union getting in. Dickhoff stated that it was "a bad idea" and that the enm- ployees would just he hurting themselves. elaborating that Respondent "wouldn't be able to afford a union . . . and. if it came doswn to it, the plant would prohably close the gates." ' Dickhoff was the Auburn plant manager. stipulat- ed by the parties to be a supervisor. A couple weeks later, also in Dickhoff's office, in re- sponse to Heide's saying that the employees needed a union. I)ickhoff said it would be "a mistake," continuing: "You guys lost out on your raise because you brought the Union in. The plant would have to close down." s David ('lark, a Redmond employee. was among those laid off on ehbruary 26. He told Gilmore at the time that he was anxious to be recalled, and could be ready on an hour's notice. (ilmore replied that ('lark would be recalled as soon as the "union people" weere "out of there," adding the proviso that, if the Union got in. Respondent "would be out c:f business" and there would be no job for 'lark." 'Ihere is no evidence in support of these allegations as they pertain to Novak, and he expressly denied, in his testi- mony. that he ever raised the possibility of a shutdo wn. It is concluded that the comments of Dickhoff and (iil- more just described violated Section 8(a)( 1 ) substantially as alleged. Although Clark's employment relationship sw ith Respondent arguably had ceased by the time of Gilmore's remarks to him, he was still an "employee" for purposes of Sections 2(3) and 8(a)(I) of the Act. Little Rock ('raeo' i Basket (o., 227 NLRB 1406 (1977). TIhe allegations concerning Novak. being without evi- dentiary support, are without merit. 3. Paragraphs IO(a). (b), and 17 Paragraph IO(a) of the complaint alleges that, on or about March 11, 1976, Respondent, bv Novak and (iil- more. "told employees that unionization would result in more stringent working conditioas." Pa,-agraph 10(bl alleg- es that, on the same occasion, Novak "told employees that if Respondent were unionized . .. [it] . . . would prolong negotiations . . . hold up any pay raises or bonuses during I [hs is Heilde' ilnc, illtlot ercd sersirl, if ihe inlcliacl. Ilhis is Ilclde S ts uninllrovserted i ersion f Ithe ill ldell 'I lhis Is ( tlark' I redited version i f the incidcent not cs\pesslI rcuilled h, (ilnlore ( outiei for Respondent attempted to impeac.h ( irk h citing a pa-..ge rll hi, aifflda,in. sirepared during the inseslligalo el the charge hetein vhirh re.aii: "While I had the definite ilnpresil,o that Ihc iI.IIIa;I.C mcnil dldn'il iant thre coinipansv i Uio union. I don'il lecall a,. nian acrn il. personnel nnl~klp .a l\ sruch statement." Overhloiked hb counsel is: pasa;le later II the 'anle ;ffid.mit expresslN dealing suth the toiTlcrsaltoll ill L!l.eS tion. shich rad.: "(;(iloile then ainl something like that if Ihe ctnlpe !ol\ went unl tl. it w soi lld ! bI oke. iandl that's ih'I iI had to iLa peiple f " I h e JiIler passaLgC i InLsidecred itlei probal.ilve is iia the otllier hbN appili-L,,1 of the trit tl plicpI lIIC tht the specific exclude's the cIl eral I . i .i h ]]c i itk, dioes inot cirresli,lII 1i1 ill dietails with ( lark's testlilt ll, it tecind itric It, corrohllbo:i tIi illel eatc prolonged negotiations . . . cut the payroll . . . sell the plant or close down the plant and move it to another loca- tion . . .[and that] employees could no longer legally strike." Paragraph 17 of the complaint alleges each utter- ance as a violation of Section 8(a)( ). Sometime in early March, Novak engaged two Red- moend employees, Gary Carroll and Guy Clapp. in conver- sation about the possibility of the Union's getting in. No- vak had with him copies of union contracts in effect at three other companies in the area. He called Carroll's and ('lapp's attention to the wage levels in the contracts. which were below Respondent's. and to the work rules, which were a good deal more stringent than Respondent's. Novak stated that the more stringent work rules were "something the company would be able to negotiate into the contract" should the Union get in, particularizing that Respondent's tolerance of tardiness "was going to have to change." He added that one of the three contracts had taken 9 months to negotiate, and that Respondent "could legally put the negotiations off and drag it out that long." Meanswhile, Novak expanded, the laws of collective bar- gaining would prevent the granting of any raises or bonus- es. lie then interposed that the only wav the employees could get a raise during negotiations would be to strike, and that such a strike would be "a wildcat strike which would be illegal." At one point in the conversation., lapp asked if union- lzation would affect the size of the payroll. Novak an- swered that, because of the additional secretaries needed "toi take care of the extra union paperwork." there would be increased operating costs, compelling payroll "cut- hacKs" elsewhere. Novak asserted, by way of illustration, that one of the three companies whose contract was in hand had been forced to reduce its payroll from about 40 to about 9 upon going union.I ° I'here is no evidence of Novak saying, as alleged in para- graph 1O(b), that Respondent "would sell the plant or close down the plant and move it to another location" if the I Union got in. Nor is there any evidence in support of the allegations in paragraph 10(a) as they relate to Gilmore. Except for the alleged remarks about selling, closing down, or moving the plant, which are lacking in evidenti- ar; support and consequently devoid of merit, it is con- cluded that Novak violated Section 8(a)( I) substantially as alleged by the comments set forth above. While certain elements of his recital arguably would have been permissi- hle in isolation --e.g.. the prospect of more stringent work rules being negotiated into an)' contract with the U nion- the threatening and restraining overall context of his mes- sage tainted the whole. See. generally, Block-Soitahlond ,Sporltsiear, Inc., Southliland Manufa cturing Cornpany. Inc., 170 Nl RB 936 (1968): Greensboro Hosiery Mills, Inc.. 162 NL RB 1275 (1967). I I hii rcconl iructilc ll oIf the conersJtion is deriscd froun .an alialg.allg i iihc tcsirni on, ii ( arroll and ( Ilapp., hich ,ais trutil i n cotrlohrllc i ts iii iI' ',crii.lsa, and Is iredilled Notaks in his tcstillti s. did t ill addres* himlself it, thiLs p ititill collIt'eisiltli te did tilf[. l itaces. that he ,onmnienlcd "II the oTik riles Ill th three contracts durinITg I emln losee rleetIing 'o Tch I 1 1i Tiii ite th[IIt 'Inc Of the conritiatis had hbeen ill .tetatlotl fol 9 ln ithls ttc cilenied aitls rieTaiteion if ciling Ihc pillt i. cLi itig the pl.iit dt ,, l i llc e gl Sllkt', alHi g tthe ni eclillr TRUSS-SPAN COMPANY There being no proof of same, the Gilmore allegations are found unmeritorious. 4. Paragraphs 11 and 17 Paragraphs I I and 17 of the complaint allege that, on or about March 10 to 12, 1976, Respondent. by Dickhoff and Earl Anderson, "told employees that they would receive no more overtime work until after the union campaign was over," thereby violating Section 8(a)(1). In early March, before work and in the presence of "sev- eral of the guys" at the Auburn plant. including John Nak- ies, Dickhoff stated that "there would be no more overtime until the union thing is settled." I About the same time, and perhaps as a result of Dickhoff's statement, Nakies told Heide that there would be no overtime work on a particular night. Heide there- upon asked Earl Anderson. Respondent's vice president and the general manager of the Auburn plant, why. Ander- son replied that "there would be no more overtime because of the union activities." 12 It is concluded that Dickhoff and Anderson. by equating the lack of overtime with the union situation, violated Sec- tion 8(a)(i) as alleged. 5. Paragraphs 12(a) and 17 Paragraphs 12(a) and 17 of the complaint allege that during the first half of March 1976 Respondent. by Novak. "told an employee that Respondent could not give the em- ployee the 25 cents per hour leadman's pay that Respon- dent owed him until after the NLRB-conducted election," thereby violating Section 8(a)(1). On or about February 26, Novak had a conversation with Ron Frost, a trial or probationary leadman at the Redmond plant, in which Novak said that he realized Frost had not been receiving the customary 25-cent-per- hour leadman's premium. Novak continued that. "after this union stuff was all over," he would "take care of" Frost. It is concluded that Novak's remark violated Section 8(a)(l) as alleged. 6. Paragraphs 12(b) and 17 Paragraphs 12(b) and 17 of the complaint allege that, between February 20 and March 10, 1976, Respondent. by 'l This is Nakies' credited version of the incident Nsaklc, impres-ed I mle a sincere and capable witness On the other hand, as shown eltrher herein. Dickhoff was inclined in his aintunlin ,eall I) iittrihtule .arluiiii uIiIntiard consequences. present and prospective tio the union situation 12 This is Ileide's credited version of the incident .iidersn denied ilns discussion iwith Hleide "in which the subleci matter It ieertime ;,ne rll I flelde seented to he ai consclentiius aned able litnes,,. and the plilulbilhils i, his testimaons on this point is enhanced bs )lckhoff'l simlhir si;i(cilelt about overtime, of which Nakies credibly tesilfied. "' This is Frost's credited %ersion if the inlident No,.ak'sI ,i l\ [-ini.otil.t on the potint " as that lie had itn recollecriln o f discussing leadrmilll'i pus with Frost "during the latter half of March' Ntt irbls did thus dlclalinli lack conviction, hut J:rost appeared to he a sincere anld conlpetent ilt ness Frost's tesiimons on cross-eainlin.tiln Ihat he vial "neut poitiIeC" hlrt N.,i- vak used the word "unioin" did not perforce inx.Iid.ile his ltslrl l.ns nr direct. which is adopted, but it did reseal his ilnscir.nnillnes uirlndel oath. thus enhancing his overall credihilir Dickhoff. "told an employee that they would receive no wage raises because of the union campaign, that they 'would have had it all by now' if they had not brought in the union, and that the company would drag out the orga- nizational period as long as it could." thereby violating Section 8(a)( 1). During a conversation in early March in Dickhoff's of- fice. Heide asked Dickhoff why some expected raises had not materialized. Dickhoff replied that raises were "at a halt because of the union activities": that the employees would have received them by then if they had not "brought the Union in'": and that Respondent "would trs to drag out . . . the election as long as they could, where nobody would get their raises." 14 It is concluded that Dickhoff's comments violated Section 8(a)(1) as alleged. 7. Paragraphs 12(c) and 17 Paragraphs 12(c) and 17 of the complaint allege that, during the first half of March 1976. Respondent. by No- vak, "told an employee that the employees' attempts to unionize were futile since Respondent had a lawyer from t!le inside," thereb, violating Section 8(a)( I). In mid-March, Novak and Guy ('lapp conversed in the parking lot at the Redmond plant. Seeing a book entitled "How to Win an Nl RB Election" Iying on the seat of Novak's car, Clapp wisecracked: "Oh, you're using ev- erything you can . . . to win." Novak replied: "Yeah., I think we've got it in the bag." ('lapp asked: "Now., why do you think that?" Novak countered: "Well, we have one of the guys from the inside nov,'" explaining that Respon- dent's attorney in the election matter had formerls worked for the National L abor Relations Board. ' Nothing in Novak's words can he construed as tending to interfere with, restrain. or coerce employees in the exer- cise of their Section 7 rights. It is concluded, therefore, that this allegation is lacking in merit. 8. Paragraphs 13(a) (d} and 17 Paragraphs 13(a) -d) and 17 allege that, on NMarch 23. 1976. during an employee meeting: (a) Respondent. by Novak, violated Section 8(a)( 1) h telling the employees that, if Respondent were unionized. "Respondent would prolong negotiations" and "would l e iteltiC , llhotlih c onull cedtl l on cross-exarns m iton [hit his ie ri i oll Ibis Clitt\ er tlll1 AI.1I "lilrl fogf I C'' bhe irLlse I the lpse if itllic is .tredte I.hal 1),kholff ,Id c llal serhionis uhsllitianllllx iis iahoi c dtescribed [)ickhoff adililtted. in hIs rsilitit.1 tl.ll }t l teide asked ihmili the ralses "on ntlnlUrlcrtls, n scitn s .'I ind ih, Irie m11l ercd Illit thcs , oiuld he forthconliie hifter the clection his t lkri pl..i u lmi s,. c' re leired hi the N.itinlt. I .ihr Rci Iioi, Bi. rd " Reirdlir- tilie elrher elCleilrIs if this sltn.Ctellrlln 1. i reci lled hb, Ilcidc I e I )lickhOfl sa xlnt i l ith the rai, es a.rca.d X I ild hi'se heel Cr tele.d iI the I nl!'n S l 1ilt 1 ieeC hhlLilht in. ind Ihat Respindertl 'i.'LId Irs is sIr l Ill tlTers ntI to foresMlill rlses it prestous ] hi, been f(ound Ielteir thoed upoil llcliec', ulniic ltroucrtcd icstinons. thant )llkhoff i;ide .i cotll- nent of the forriler ch ,ric.er on ianother ..casitn Bind hased Lmintl the crednied testinlins of (. ar,ll ainr (' lpp that Nis ak briiached the plsolpel if .I p intlticted tl Celn i iilr .rl..i It is t d it to n rnesl ll raloses and h-il Ces HIelle's \erE-,l if tie (I nrids.nriri no. i ll n i tIC tll> iakes on idded irc dence 15 This is, ( ip p',n' n rI ltrierted Scr,' o o f tile In.Lid. llt 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hold up any pay raises or bonuses during prolonged negoti- ations"; and by further stating the the employees "would not receive their previously announced quarterly raise be- cause of the pending union campaign." (b) Respondent, by Novak or Douglas Chatfield, corpo- rate secretary-treasurer, violated Section 8(a)(1) by an- nouncing "a change in eligibility requirements for Respon- dent's pension-profit sharing plan." (c) Respondent, by Novak or Chatfield, violated Section 8(a)(1) by telling employees that, "if they opted for union- ization, they would not be eligible for participation in Re- spondent's pension-profit sharing plan." (d) Respondent, by Novak, Chatfield, and Earl Ander- son, general manager of the Auburn plant, violated Section 8(a)(1 ) by announcing "to employees that it would improve onerous working conditions and institute monthly meet- ings to hear and adjust employee grievances." On March 23 the day before the election Novak, along with Anderson and Chatfield, presided over a meet- ing at the Auburn plant attended by employees of both plants. The meeting ran from 9 to about 11:40 a.m. Coffee and doughnuts were served. Novak did most of the talking, speaking extemporaneously at times and reading at times. During the meeting, printed matter was distributed among the employees, including descriptions of Respon- dent's pension and profit-sharing plan and of the Pension Reform Act of 1974. Novak declared that Respondent had just "discovered" that, because of the 1974 Act, the eligibil- ity minimum for participation in the plan had been low- ered to 1,000 work-hours in the first year of employment. Novak then read the names of the previously excluded em- ployees now eligible, noting that only one or two remained excluded. He told the employees that he had learned of the relaxed standard several days earlier upon making an eligi- bility inquiry to the bank that administers Respondent's plan. (Clapp asked if Respondent's plan would remain in effect if the Union were voted in. Novak evaded the issue and Clapp asked again. After several repetitions of this, Novak finally stated, in effect, that the plan "would be dropped" should that happen, with the employees receiving the amount of contributions that had been vested in their names.' 6 , Ithat Novak said the plan would be dropped should the Union be soted in is based on the credited testimony of Carroll, John (hristensen,. (lapp. Irost. and Heide Nos.ak testified that his answer was limited to a reading of a passage from the description of the 1974 act tie asserted that he read it three times. with the employees reading along with himn the third time I he passage reads: Exclusiin of Collective Bargaining Unit. In some instances, union employees who are pairt of a collective bargaining unit prefer current compensation or some other form of benefits to inclusion in a cnir- pans's pension plan. In these instances it may be difficult or impossible for a plan Iot meet the coverage or antidiscrimination requirements of the tax law. The Act permits the exclusion of emphlyees swhol are cosered hs a collective barga:inilg agreement in determining whether a plan meets the 70',; or 80'. coverage rule ir the antidiscrimination rule. Ilowexer. it is essential thlat retirement benefits have been a subject of good faith bargaining between the employer and its emploees who are coetled hby the collective bargaining contract. It is anticipated that the IRS will require evidence of good faith bargaining on pension benefits before aipproving a plan vWhich excludes union employees. Ihe nearest thing io corroboration of Novak on this potint was the itet- Novak also announced that Respondent was estab- lishing an "open-door policy" to assure that there would be no subsequent lack of communication between the em- ployees and management, to be in the form of monthly meetings in which the employees could air their griev- ances. Novak continued that, while the length of contract nego- tiations could not be predicted should the Union get in, the negotiations of a competing company in the area had last- ed 9 months. To someone's question if raises would be granted while negotiations were in process, Novak said no, that raises were a matter to be negotiated. Novak stated, finally, that Respondent "had to wait un- til the union thing was settled" before the quarterly bonus- es could be distributed. When his turn came, Chatfield remarked on the strin- gency of the work rules in the union contracts of some of Respondent's competitors. He said that, although Respon- dent would not institute such rules, "win, lose, or draw," he wanted the employees to know what could happen in a bargaining relationship and that all was not "sweetness and light once a contract was signed." Chatfield further stated that the advent of the Union had blocked the grant- ing of planned raises, then beseeched the employees "to trust" Respondent and "vote the Union out" so that Re- spondent "could make it up" to them.' s There is no evidence in support of these allegations as they pertain to Anderson. Although the relaxed eligibility requirements for Re- spondent's pension and profit-sharing plan evidently were mandated by the Pension Reform Act of 1974, it is con- cluded that the announcement of that circumstance the day before the election, when Respondent learned of it several days before, in combination with its misconduct otherwise, "was part and parcel of Respondent's unlawful effort to discourage the employees from joining a union," and so violated Section 8(a)(1) as alleged. General Cinema Corp. d/b/a Renton Village Cinema, 228 NLRB 377, 378 (1977). It is further concluded that Novak violated Section 8(a)(1) as alleged by saying that the pension and profit- sharing plan "would be dropped" if the Union were voted in; by' saying that Respondent was establishing a new "open-door policy" to treat with employee grievances: by saying there could be no raises during negotiations, coinci- dentally citing the 9-month prolongation of another com- mony iof Ronald Street that Novak "read from the law" Street did not specify what Novak read, however. severel) impairing the corrobhorative salue of his stors While holding firm that they had no recall of Novalk reading the above passage. Carroll. Christensen, and Frost all conceded on cross-examination by Respondent's counsel. citing the considerable passage of time between the event and the hearing, that it was possible that Novak did so. This concession of the possibility served more to demonstrate their conscientiousness under oath than to undermine their original testimony It offends commonsense that no one could be summoned to corroborate Novak had he truly read and reread the passage as he testified. 'That Novak raised the prospect of monthls grievance meetings on March 23 is based on the credited testimony of Carroll. Clapp, Frost. and Ileide. Nosak's intimation that he first raised the subject in an emplosee reeting after the election is not credited. m Except ias indicated in the preceding two footnotes. the above descrip- tilii of the March 23 meeting reflects a selective adoption of the nonton- Iliting testirmlon of several emiployees and Novak. 58 TRUSS-SPAN COMPANY pany's negotiations; and by saying that the distribution of a quarterly bonus would have to "wait until the union thing was settled." It is concluded, finally. that Chatfield violated Section 8(a)(1) as alleged bv blaming the union situation for the withholding of raises: by urging the employees to "vote the LUnion out" so that Respondent "could make it tip" to them, thus conditioning benefits upon a favorable vote. and by mentioning the stringency of the work rules in cer- tain union contracts. Even though Chatfield disclaimed any intention by Respondent to institute such rules, "win. lose, or draw.," his avowed purpose in mentioning them to show that union contracts are not all "sweetness and light" in combination with the overall context of his and Novak's remarks imparted a threatening taint to the refer- ence. There being no evidentiary support of the allegations concerning Anderson. they are without merit. 9. Paragraphs 14(a) and 17 Paragraphs 14(a) and 17 of the complaint allege that, between February 20 and March 19, 1976. Respondent. bh Novak and Gilmore, "told employees that they would re- ceive no wage increases until the union campaign was over, but that after the NLRB election, they would receive retro- active wage raises,. thereby violating Section 8(a)( I. Sometime in late February or early March. during an employee meeting between shifts at the Redmond plant. Novak read a prepared statement in which he announced that there would be no raises or bonuses until after the election "because it could look like a bribe," but that retro- active raises would be forthcoming after the election "no matter which way it went." 19 There is no evidence in support of these allegations as they relate to Gilmore. It is concluded that Novak's assertion violated Section 8(a)(1) as alleged. The Gilmore allegations, being devoid of record support. are without merit. C. The Alleged Violations of Section 8(a)(5) Paragraph 15(b) of the complaint alleges that Respon- dent's assorted violations of Section 8(a)( ) "are so serious and substantial in character and effect as to warrant the entry of a remedial order requiring Respondent to recog- nize and bargain with the Union." Paragraph 16 alleges that Respondent violated Section 8(a)(5) by its conduct al- leged in paragraphs 7(c). 13(b), and 14(b)-that is. by re- jecting the Union's February 20 demand for recognition. by announcing a change in pension and profit-sharing eli- gibility at the March 23 employee meeting, and by institut- ing a new wage system after the March 24 National Labor Relations Board election "without notice to or bargaining with the Union." I9 Ihis reconstruction of the event is based upon the substantLiall corre- sponding testimorn' of James Bosce. (hapman. C(hristensen. and Russell Novak did not refute it and, as earlier noted. )ickhoff .idmittedls rmade comments of a similar nature io Helde 1. Facts a. 17he .o)licitltion of (cards As previously mentioned. 23 employees signed authori- zation cards on February 19 and 20. 20 The unit payroll then consisted of 34 emplossees. The Union demanded that Respondent recognize it on the afternoon of February 20. and, being refused, petitioned for a National L.abor Rela- tions Board election that same day. An additional five em- ployees signed cards in the remainder of February, bring- ing the card total to 28, while the payroll shrunk to 24 as of February 26 with the lavoff of 9 employees and the dis- charge of 1. Of those remaining 24 employees, 21 had signed cards. The cards, all identical, stated: Authorization for Representation ULnder the National l abor Relations Act I, the undersigned employee of Company: Address of Compan': authorize Local 741 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to represent me in negotiations for better wages, hours and working conditions. Name Date Home Address Social Security Number Job ('lassification Signature-- The burden of card solicitation was carried bs Heide and the Union's representative. l.illi. As Heide recalled. Lills explained to him on Februarx 19. before they began: [Ifl they got a majority of the people to sign the cards . . . he [Lillyl could take it and go the company as a bargaining agent and it would be a bargaining unit. and if the company didn't agree to it. later on it could go to an election. Heide and Lilly then drove to the Redmond plant. arriv- ing during the night shift lunch break on February 19. Ten or so night shift employees gathered in the parking lot, where Lilly spoke to them for "about half an hour." as he recalled. Lilly credibly testified that he gave his "standard spiel" in such circumstances, which took this form: I told them that the cards would be used in order for me to find out whether or not there was a majority interest involved. The cards could be used to go to the Company and prove majority status: and I told them v Not all of the cards were correctlN dated Three. those of [).s id C(lark Darrell Mueller. and Michael Nogler. bear the date of Februar 18X. al though the weight of evidence indicates that the) were signed n Febhruai.r 19 Anolher, that of Michael Cooper, erroneously was dated Febhruars 10 instead of Februiars 20: and vet another. Russell's. erroneousls, as dated Fehruar, 29 Instead of Februar) 20 as suggested bh the weight of es idence Still others. thos'e of Tlmoths Adair, fllee, and Jeffrey Mcc(re. hbear no date on their ;lile. hut were signed oin February 20 as Indlcaled b% esltilrns, esidence I hese matters have no effect oin the outcome of the caie. and are meneiln ed .nls in the interest of completeness 59 DECISIONS OF NATIONAl. IABOR RELATIONS BOARD the cards might also be used to prove a valid interest to the Labor Board if we needed to go to an election. -'2 Rain began to fall, causing the group to move to Respon- dent's lunchroom, where Lilly and Heide answered sundry questions from the employees. Clapp asked if the emploN- ees became dues-paying members by signing the cards. Heide replied: All this [signing] is going to do is say there is interest in the idea of going union, and that these cards give the Union the right to negotiate with the Company?. Several of the employ ees signed cards, either in the parking lot or in the lunchroom. The next morning, February 20, Heide obtained signa- tures from his coworkers on the Auburn crew; and, at noon, he returned to the Redmond plant, soliciting signa- tures from the day-shift employees. Heide credibly summa- rized his words to the various employees as follows: I told them . . . that in order to get the Union in, w e would have to have the majority of the people's names down on the cards to be able to let the Union repre- sent them . .. .23 Heide delivered the cards thus obtained to Lilly in the early afternoon of February 20: then Lilly called on No- vak, demanding recognition. After Novak's refusal and the filing of the election petition with the National Labor Rela- tions Board, lilly met with some of the employees after work that same day at a cafe in Redmond. Further signa- tures were obtained after Lilly explained: [If] you felt that you wanted the Union to represent you . .. you should sign the cards, but they do not obligate you in any way. 24 Subsequent organizational meetings were held at a Red- mond cafe on February 26 and at the Union's hall on Feb- ruary 29, during which the balance of the signatures were obtained. Heide told those at the February 26 meeting that the cards were being circulated "to see if enough employ- 21 l s's esl lnlo , in his regard was corroboriated in it, essenuiialx s Hleide. C(lapp, ( lark. leir I)eMers. Frolst., 1aik ledihven. Mueller. .Lnd James Patterson. Irel.nd. who testified thalt Iilvs said the cards were flr inforniation onls iand that either l Iilly or lHeide said signing "didn't ltea; i ahether I A.ias for or against the Union." and John Lidral. who testified that Lill sa;id signing "was just ai matter of records," ;re discredited in Ihe fa;e of explicit denimals b 11ill and Heide and the iverwhelling corroborimriron of them. 2 tlelde's testinionm in this regard was corroborated in Its essenllias bh ('lapp and Nogler Referring to the same incident, however, (lapp's prerilal affiduaiit stated thit Heide sa;id. "signing didn't niean ;sou were frr ir against it. just ?ou w anted ani election to see whether or not . the I noln will represent you for better wages and so forth" Respondent argues frori this that the signatures obtained February 19 were inproperly inducted. ('lapp credibl. testified. however. that the affidavit. uvhlch a.as prepared bs an agent of the Nationil l La.hbor Relations Board. "didn' stalte exacti " '1ha he intended It Io state. and that the truer version was embodied in hIo testilonY Respondent's argument thus is rejected. without addresslni its legal validitiy for warn t of credible esidentiar, underpinning Ileide's testlimons ii this regard was corroborated in its essenltial, h James Bonce. Dexter ( hapman John Kersting. Jeff Mcu;rew. L.ets Nenleth. and lIauren Russell Ronlld Street's testimony that Hleide said the cilrdls Awere infoirnmatlon ,lds that lt hinl know ho , many people were intcretl- ed in hearing What he [a union representative] had to sa?" is rejected in sIce of Heide's deniial and the heavi corroboration of him 24 Ihis is an ectract from the credited lestinioin, of Boyce. ahlch ; is corrilborated in subslhalce hi C(hristensen and was unconitradicled ees were really serious about the Union or not":2 5 and Lilly explained on February 29 that the cards were "an authori- zation for him to go negotiate for the union-type contract, better wages." 26 b. The refusal to recog nize As mentioned, Novak rejected [Lilly's February 20 de- mand that the Union be recognized. The remaining facts pertinent to Respondent's allegedly unlawful refusal to rec- ognize namely. its sundry violations of Section l8a)() I have b een particularized above. c. The announceed chang e in pens iton and profit-sharing eligihility As earlier described, Novak informed the employees during a preelection meeting on March 23 that Respondent had just discovered that, because of the Pension Refortit Act of 1974, the eligibility minimum for participation in Respondent's pension and profit-sharing plan had been lowered to 1,000 swork-hours in the first vear of employ- ment. The new standard went into effect, according to No- vak., on December 31, 1975. A description of the 1974 Act, in evidence, specifies that, provided an employee is 25 years old, he "must be permitted to participate in the plan" if he has worked the requisite 1,000 hours. d. 7he insitultion of a newtd wage . sv)tlen Novak admitted that after the election in mid-June. to he exact Respondent 'instituted a new wage or pay sys- tem." The record is silent concerning the details of the change. 1The Union was given no chance to bargain about it. 2. Conclusions a. The mnajority question Respondent contends that the card signatures were in- duced by improper representations concerning the purpose of the cards and, therefore, that the Union did not achieve a valid card majority. This contention is rejected. The cards by their terms expressly designated the Union to rep- resent "the undersigned employee . . . in negotiations for better wages, hours and working conditions." and there is no credited evidence that they were portrayed to prospec- tive signers as being sole/v for some other purpose, such as to obtain an election or to obtain information. 'algreen Company. 221 NLRB 1096. 1102 (1975), in- volved representations that .. .the purpose of the card was to secure an NLRB election, and, in the event a majority of the employees cast ballots at that election favoring representation by the Union. the Union would then seek to bargain col- lectively with the Company .... 2' [hi, firdidng is based on Ihe iunonitradiciteid tcilion; of A;'an Johnsonii I I his tailing is sised un the usoiriridsitted leteiiiiii iof '5skies 60 TRUSS-SPAN COMPANY Sustaining the validity of the cards in that situation, the Board observed, at 221 NLRB 1096: There is nothing inconsistent between obtaining au- thorization cards in order to demonstrate sufficient employee interest in representation to warrant an elec- tion and in using the cards to demonstrate a union's majority. Other cases in the same genre include Levi Strau.ss & (Co., 172 NLRB 732 (1968), and Cumberland Shoe Corporation, 144 NLRB 1268 (1963). In Levi Strauss & C(o., 172 NLRB 732, fn.3 (1968), the Board addressed itself to the solicitor's representation that signing "didn't mean that we were join- ing the Union, that we had our choice when the election came up." The Board stated (172 NLRB at 733), finding the cards to be valid: [T]hat employees are told in the course of solicita- tion that an election is contemplated. or that a pur- pose of the card is to make an election possible. pro- vides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. Cumberland Shoe Corporation, 144 NLRB at 1269. con- cerned the representation that "a purpose of the cards was to secure a Board election." The Board, again deeming the cards valid, declared (144 NLRB at 1269): [lit does not appear that they [the signers] were told that this was the only purpose of the cards. In this case the cards, on their face, explicitly authorized the Union only to act as bargaining agent of the emplo? ees, and . . . the failure of the Union's solicitors to affirmatively restate this authorization does not indi- cate that it was abandoned or ignored. Yet other cases in this vein are The Great At/lntic & Pacific Tea Company. Inc., 210 NLRB 593 (1974), in which the cards were found not to have been invalidated by the representation that they were to see if the employees want- ed an election and "it would be left up to the people to vote it [the union] in or out" (210 NLRB at 597): and .:'narco Industries, 197 NLRB 489 (1972), in which the same result was reached concerning representation that "the, needed so many more cards before they could go ahead and get an election," and "we need six or eight more signatures in order for the union to hold an election." 197 NI.RB at 494. A final piece of enlightenment in this area is the Su- preme Court's oft-quoted declaration in N'.L.R.B. v. (;i.ssel Packing Co.. Inc., 395 U.S. 575. 606-607 (1969): [E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words cal- culated to direct the signer to disregard and forget the language above his signature. There is nothing incon- sistent in handing an employee a card that sa)s the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.... We cannot agree . . . that em- ployees as a rule are too unsophisticated to he bound by what they sign unless expressly told that their act of signing represents something else. These several decisions eliminate any doubt of the soundness of the Union's cards. It follows that the Union had a valid card majority at the time of its February 20 demand for recognition and at all relevant times thereafter. b. Ihe reliahility ofi the cards vis-a-vis an election There being a valid card majority, the next question is whether Respondent's misconduct, previously found. im- peded the National Labor Relations Board's election pro- cesses to the point that the cards are the best available expression of employee sentiment. N. L. R. B. . Gissel Pack- ing Co.. Inc., 395 U.S. 575 (1969). Respondent committed no unlawful discharges or other acts of virulent discrimination to discourage employee sup- port of the Union, instances of which exist in most cases where so-called Gissel bargaining orders have issued. Re- spondent's violations of Section 8(a)( I). however, not only were pervasive, but sometimes flagrant. involving threats of economic retaliation in sundry forms-closure, withheld raises, the cessation of pension and profit-sharing cover- age: intimations of deliberately extended negotiations and more stringent work rules: and the promise of retroactive benefits once the Union was out of the picture. It is con- cluded in these circumstances, even without unlawful dis- crimination. that a fair second election is a forlorn possibil- its, and that a bargaining order therefore is necessary to protect the employees' representational rights. Donn Prod- ucts, In(. & .4merican Metals Corporation. 229 NLRB 116 (1977): Four Winds Industries, Inc.. 228 NLRB 1124 (1977). It follows that Respondent violated Section 8(a)(5) and (I as alleged by refusing the Union's demand for recogni- tion and bv later instituting a new wage system without giving the UJnion a chance to bargain. It also follows that Respondent is under a present obligation to bargain with the Union., upon request, concerning any terms and condi- tions of employment over which it would have been re- quired to bargain had the Union been recognized on Feb- ruarv 20. 1976 the date of the demand and the refusal. DIonn Product. . Inc.. .supra at 118. It is further concluded, however, that the refusal-to-bar- gain allegation is without merit as concerns the relaxation of standards for pension and profit-sharing eligibility, an- nounced at the March 23 preelection meeting. For one thing, the record is too ambiguous and undeveloped on this issue to carry the General Counsel's burden. For another. although Novak's testimony is suspect that the change went into effect the preceding December 31 before the bargaining obligation arose inasmuch as he himself did not learn of it until March, the record suggests in any event that Respondent was under a legislative mandate to effect the change whenever it did do so. It thus appears that bar- gaining on the matter would ha'e been a pointless ritual. not required by the Act. Cf. General Cineman (Corp. d h a Renton Village Cinema, 228 NLRB 377 378 (1977). ('ON('I USIONS O I LAw 1. By interrogating its employees concerning their union activities and those of their coworkers, and by telling 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees (a) that it would go out of business should they obtain union representation; (b) that it would prolong negotiations should a union get in, during which time no raises or bonuses could be granted; (c) that the only way raises could be obtained during negotiations would be by striking, which would be illegal; and (d) that a union con- tract would result in more stringent work rules, all as found herein, Respondent in each instance violated Section 8(a)(l) of the Act. 2. By saying to its employees (a) that the payroll would have to be cut back if a union got in because of increased operating costs: (b) that overtime was being withheld be- cause of the union situation: (c) that raises and bonuses had been blocked by the Union's presence, and that raises already would have been received if the employees had not brought the Union in; (d) that, after the Union was out of the picture. the employees would be taken care of and ret- roactive raises granted; and (e) that their pension and profit-sharing coverage would end should the Union get in, all as found herein, Respondent in each instance further violated Section 8(a)(1). 3. By saying to its employees, for the purpose of discour- aging their support of the Union, that it had just discov- ered that the eligibility rules for the pension and profit- sharing plan had been relaxed, and that it was establishing an "open-door policy" in the form of monthly meetings to deal with employee grievances, as found herein, Respon- dent in each instance committed additional violations of Section 8(a)(1). 4. By refusing to recognize the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit on and after February 20, 1976, and by thereafter instituting a new wage system without giving the Union a chance to bargain over it, as found herein, Re- spondent violated Section 8(a)(5) and (1) of the Act. 5. These unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 6. Respondent did not otherwise violate the Act as al- leged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(b) of the Act, I hereby issue this recommended: ORDER 27 The Respondent, Chatfield-Anderson Co., Inc., d/b/a Truss-Span Company, Redmond and Auburn, Washing- ton, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating its employees concerning their union activities and those of their coworkers, and telling its em- ployees (1) that it would go out of business should they obtain union representation; (2) that it would prolong ne- gotiations should a union get in, during which time no rais- 27 All outslinding motions inconsistent ith this recommended Order herebh are denied. In the event no exceptions are filed as provided hb Scc 102.46 of ihe Rules and Regulations of the National I.alhor Relations Board,. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 1(02 48 of the Rules and Regulations. he acdopted bh the Board 1id bec.ome its findings. conclusions. and Order. and all objections thereto .hall be deemed waived for all purposes es or bonuses could be granted; (3) that the only way raises could be obtained during negotiations would be by strik- ing, which would be illegal; or (4) that a union contract would result in more stringent work rules. (b) Saying to its employees (I) that the payroll would have to be cut back if a union got in because of increased operating costs; (2) that overtime was being withheld be- cause of the union situation; (3) that raises and bonuses had been blocked by the Union's presence, and that raises already would have been received if the employees had not brought the Union in; (4) that, after the Union was out of the picture, the employees would be taken care of and ret- roactive raises granted; or (5) that their pension and profit- sharing coverage would end should the Union get in. (c) Saying to its employees, for the purpose of discour- aging their support of the Union, that it had just discov- ered that the eligibility rules for the pension and profit- sharing plan had been relaxed, or that it was establishing an "open-door policy" in the form of monthly meetings to deal with employee grievances. (d) Refusing to recognize the Union as the exclusive col- lective-bargaining representative of its employees in the ap- propriate unit, and from instituting a new wage system without giving the Union a chance to bargain over it. The appropriate unit is: All production, maintenance, and truckdriving em- ployees of Respondent at its Redmond and Auburn, Washington, facilities, excluding office clerical em- ployees, outside salespersons, guards, and supervisors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing employees in their exercise of rights under Section 7 of the Act. 2. Take this affirmative action: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all the employees in the appropriate unit described above; and, if an understanding is reached, embody it in a signed document if asked to do so. (b) Rescind those features, if any, of the new wage sys- tem instituted in June 1976 that work to the employees' detriment when compared to the arrangement that previ- ously existed, making appropriate retroactive adjustments in employee pay, and upon request bargain with the Union concerning the new wage system. Nothing herein shall be construed as authorizing Respondent to reduce wage and benefit levels now in effect. (c) Post at its plants in Redmond and Auburn, Wash- ington, copies of the attached notice marked "Appen- dix." 28 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- :' In the esent that this Order is enforced bs a Judgment of a Urniled Stales Court of Appeals. the swords in the notice reading "Posted by Order of lhe National Iiabor Rela;tins Board" shall read "Posted Pursuant to a .ludgment of the United States Court of Appeals Enforcing an Order of the National I.;abor Relations Board." 62 TRUSS-SPAN COMPANY ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Ir Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. IT IS Ft RTHER REtOMMENDED that the election in Case 19- RC- 7895 be set aside and that the petition therein be dis- 63