Jakel Motors Inc.

JAKEL MOTORS INC. 147 Jakel Motors Incorporated and Jakel Manufacturing Company andLocal 483, International Brotherhood of Boilermakers; Iron Ship Builders, Blacksmiths, Forgers ' . and Helpers, AFL-CIO. - Cases 14-CA-5685 and 14-RC-6423 July 20, 1971 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER` AND MEMBERS BROWN AND JENKINS On' March 31 , 1971, Trial Examiner Thomas F. Maher "issued ' his Decision in the above-entitled proceeding, 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. The Trial Exam- iner further : found - that ' the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be, dismissed. He further recommended that the representation election held on July 2, 1970, in Case 14=RCL6423, be set aside and a new election held: Thereafter, the`Geneial Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief and a brief in answer to,the General Counsel's exceptions. 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 these cases to' a three= member panel. The Board-has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record ,in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Jakel Motors Incorporated and Jakel Manufacturing Company, Highland; Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified below. 1. Delete paragraph 1(c) from the Trial Examin- er's recommended Order and substitute the following: "Granting benefits calculated to persuade employ- ees not to select the Union, or any other labor organization, as their collective-bargaining represent- ative." 2. Substitute the attached notice for the Trial Examiner's notice. IT IS FURTHER ORDERED that the election conducted on July 2,1970, in Case 14-RC-6423 be, and it hereby is, set aside and that Case 14-RC-6423 be, and it hereby is, remanded to the Regional Director for Region 14 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [DIRECTION OF SECOND ELECTION 2 omit- ted from publication] 1 In agreeing with the Trial Examiner that the Respondent's announcement and the granting of a new 'paid holiday prior to the election violated Section 8(axl) of the Act and is a basis for overturning the election held on July 2, 1970, we rely on the fact that such conduct, in the circumstances herein present, was calculated to, and did, interfere with the freedom of choice of the employees in the election. 2 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 14, within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shallbe granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate you about your own or-your fellow employees' union mem- bership or preference. ' WE WILL NOT threaten that we will close our plant in the event that you should select the Union to represent you. WE WILL NOT grant benefits calculated, to persuade our employees not to select the below- named Union, or any other organization, as their collective-bargaining representative. WE WILL NOT in any like or related manner interfere' with our employees or restrain or coerce them in the exercise of. rights guaranteed them by the National Labor Relations Act:' All of you, our employees, are free to remain or become, or refrain from remaining or becoming, 192 NLRB No. 31 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of, or to withdraw from , Local 483, International Brotherhood of Boilermakers, Iron Ship Builders, -Blacksmiths; Forgers and Helpers, AFL-CIO, or any other labor organization. - JAICEL MOTORS INCORPORATED AND JAKEL MANUFACTURING Dated By COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. - This notice must remain posted for 60. consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th, Boulevard, Room 448,- St. Louis, Missouri 63101, Telephone 314-622- 4174. TRIAL EXAMINER'S DECISION STATEMENT of THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on July 8, 1970, by Local 483, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein referred to as the Union, against Jakel Motors Incorporated and Jakel Manufacturing Company, Respondents herein, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on August 31, 1970, alleging violations of Section 8(a)(1) of the National Labor Relations Act, as amended (U.S.C., Sec. 151, et seq.), herein called the Act. Respondent duly filed its answer to this complaint admitting certain allegations thereof, but denying the commission of any unfair labor practices. Meanwhile, on September 29, 1970, the Regional Director issued a report on objections and, challenged ballots in Case 14-RC-6423 wherein, an election had been held'among Respondent's employees on July 1, pursuant to a stipulation for certification upon consent election approved June 15, 1970. The results of the election disclosed that the Union was rejected by the employees by a vote of 271o 21, with 15 ballots challenged. In his report the Regional Director, having ruled on the challenges, determined that his rulings could not affect the result of the r Objections 1 and 5(a) of the Regional Director's report. 2 The complaint was further amended at the trial before me to incorporate further allegations of Sec. 8(a)(1), to which Respondent interposed its oral answer denying the conduct alleged. 3' With its brief Respondent filed a motion to correct the record in two respects, one being the misplacing of quotation marks to include a witness' election and directed-, that the challenged ballots not be opened. Upon the consideration of.the objections filed by the Union the Regional _ Director, after ,investigation, concluded that with respect to alleged interrogation of employees and the granting of an additional paid holiday during pendency of the representation petition' there had been raised substantial and material issues of fact critical to the issue of whether the- election should be set aside. He accordingly issued an order on the same date consolidating for trial and decision Cases 14-RC-6423 and l4-CA-5'685. Thereafter, on October ' 19, 1970, upon further investiga- tion, the Regional Director amended the complaint herein to allege a violation of Section 8(a)(3) of theAct, to which Respondent duly filed its answer.2 Pursuant to notice a trial was held before me in St . Louis, Missouri, where the parties were present, represented by counsel, and afforded full opportunity to be heard, present oral argument, and file briefs. ` Briefs were filed by Respondent3 and the General Counsel'on February 16, 1971. 1 ` Upon consideration of the entire record, which includes a transcript and exhibits in Case 14-CA--5685 and the briefs of the parties, and specifically upon my observation of each witness appearing before me,4 I make the following:_ FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF RESPONDENT Jakel Motors Incorporated and Jakel Manufacturing Company are Illinois corporations, jointly maintaining their only office and place of business in Highland, Illinois where they are ' engaged in the manufacture, sale, and distribution of'subfractional electric motors , metal stamp- ings, dies, and related products. During the year -ending December 31, 1969, each Respondent, in the course and conduct of its businessoperations, manufactured, sold, and distributed at its Highland , Illinois; plant products valued in excess of $50,000 of which products valued in excess=of $50,000 were shipped from said plant directly. to points located outside of the State of Illinois. The Respondents are and at all relevant times have been affiliated businesses with common offices, ownership, and directors and having a common labor policy for their employees. Upon the foregoing admitted facts I conclude and find that Jakel Motors Incorporated and Jakel Manufacturing Company, referred to hereinafter, collectively, as Respon- dent, are joint employers engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 483, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers , and Helpers, AFL-CIO, is admitted to be and I accordingly conclude and-find to be a labor organization within ,the-meaning of Section 2(5) of the Act. explanation of a quoted remark in addition to the quoted remark itself, the other being the erroneous substitution of Respondent's name, Jakel, for the actual name of its accountant, Troeger. In,the absence of opposition the motion to correct is granted and the original copy of the transcript has been corrected accordingly. 4 Bishop and Malco, Inc., 159 NLRB 1159, 1161. JAKEL MOTORS INC. 149 M. THE ISSUES 1. Whether the discharge of a union member who was responsible for the spoilage of a substantial amount of work was discriminatory or for cause. 2. Interrogation of and threats to employees as unlawful interference, restraint, and coercion and the basis for setting aside an election. 3. The granting of a paid holiday as unlawful interfer- ence, restraint, and coercion and as the basis for setting aside an election. IV. THE UNFAIR LABOR PRACTICES A. The Organization of the Employees Sometime in January 1970 interest in the Union developed among Respondent's employees and during the next 2 or 3 months meetings were held at which an average of seven or eight employees were in attendance. Included among the employees attending and actively supporting the organizing campaign were Mary Busch, Grace Meyer, Alice Landolt, Judy Meyer, Evelyn Storbeck, and Elma Hamil.5 In this respect employee Grace Meyer credibly identified Mary Busch as_ a member of an organizing committee "consisting of seven or eight employees ," and as having spoken in behalf of the Union around the plant many times, with the 'same comparative frequency as the other members of the group. On April 13, 1976, the Union filed with the Regional Director a petition for election as bargaining representative of employees of Respondent in the following unit conceded to be appropriate for bargaining purposes: All production and maintenance employees, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. As, previously noted, a consent election was held on July 2, 1970, pursuant to a stipulation for certification approved by the Regional Director on June 15. The Union lost by a vote of 27 to 21. The resolution of additional challenged ballots did not develop valid ballots sufficient in number to affect the outcome of the election. However, among the timely objections to conduct affecting the outcome of the election were two which the Regional' Director deemed to raise substantial and material issues of - fact critical to a determination of whether the election should be set aside. These objections are the allegations of employee interroga- tion and the granting of a paid holiday established for coercive purposes. They will be considered hereafter and will determine my ultimate decision as to whether the election be set asides B. The Supervisory Status of Robert Martin Robert Martin, a setup man assigned to the care of machinery in one section of the plant, figures prominently in two significant incidents in this case-the discharge of one employee and the interrogation of another. Because his employment status relates directly to these incidents it would be appropriate to resolve it now. In the representation proceeding Respondent contended that Martin was not a supervisor. In support of its contention it proffered the testimony of President Otto Jakel who described Martin as a "working leadman" assigned to the final assembly area under the direction of Production Supervisor Holshauser. He stated that Martin's working hours were the same as other employees, that he was paid on an hourly basis, and that his pay rate was higher than the others but not being on an incentive basis his annual salary would be less. He'denied that Martin had any supervisory authority. Thus he could not grant time off, hire or discharge employees, nor could he direct the work of others except on orders from Holshauser. At the trial before me Martin's duties were considered in further detail. Thus employee Mary Busch described Martin's assignment of employees from one job to another when he was in the process of fixing that employee's machine, as it became inoperative for short periods of time. Supervisor Holshauser confirmed this, stating, however, that Martin made such assignments either at his direction or with his approval after it had been accomplished. Martin's principal job, it is agreed, is that of setup man, which, as Jakel put it, places him practically in the maintenance department. In the performance of his duties he would adjust the machines in the final assembly area, correct malfunctions, and generally oversee mechanical operations. When not doing this he was available to bring parts and supplies to operators at their machines. Employee Grace Meyer confirmed the foregoing account of Martin as supplied by Mrs. Busch, and she also recalled an incident when Martin permitted her to go home when she came to -him and told him that she was ill. Both employees also noted- that on occasion when Holshauser was not in the plant Martin was in charge. No one had so informed them, according to Mrs. Busch, but the employees "just presumed that he was in charge of it that day." On the contrary, President Jakel had testified at the representation proceeding that as a matter of policy when Holshauser was absent he (Jakel) took his place, as he did when the supervisor of Respondent's other shop was absent. Two documents submitted in evidence would, on their face, strongly support General Counsel's claim that Martin was a supervisor. On these vacation request slips which Martin approved, he signed his name in the blank space designated "supervisor." Supervisor Holshauser credibly described the circumstances under which these slips were signed. Thus, on an occasion in early spring 1970, shortly after Martin came with the Company, Holshauser had occasion to be instructing Martin in the procedures being followed in the plant, including the operation, of the vacation records which Holshauserniaintained. In describ- ing the procedure for honoring vacation requests Holshau- ser showed Martin two requests that had been checked out with the payroll department and were ready for approval. Whereupon Martin apparently, and without Holshauser's knowledge, signed the requests himself and passed them on 5 The credited testimony of Employee Mary Busch amended, provides for trial, ruling, and decision by a Trial Examiner and 6 The Regional Director's order consolidating the two cases herein transfer of the case to the Board. pursuant to Sec. 102.33 of the Board's Rules and Regulations, Series 8, as 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the employees concerned. This, Hoishauser credibly stated, was not one of Martin's assigned duties and was not repeated thereafter. On the contrary, Hoishauser restated Respondent's: position that Martin had no authority to hire, fire, or recommend either, nor could he-grant time off or set vacation dates. And in the critical incident herein, the discharge of Mrs. Busch, it was Holshauser who,decided to discharge her, and told Martin he was doing so. According- ly, as we.' shall consider in another context elsewhere, it is not critical to the issue, of Martin's employment status `that he intruded himself into Mrs. Busch's termination by announcing to her a :decision already made by Production Hoishauser. Supervisor. Upon, consideration of- all the evidence relating to'Robert Martin's duties, and independent of the Regional Director's determination in his report on objections that Martin was a supervisor,? I am persuaded that at best he was a leadman, or setup man, whose directional duties were limited only to the extent required in the performance of mechanical assignments.8 These activities are the ones to which the employees testified when called by General Counsel. Thus he directed them from machine to machine, shut down their machines, as necessary, for their repair, and corrected their operations .9 On ;the positive side the testimony of President 7akel.`and Supervisor Hoishauser stated in rebuttal not only that Martin did not possess the statutory attributes of supervisory authority but that such direction as he did give ,was in the furtherance of his -primary job of keeping, the machines operating. -Nor am I disposed to view his approval of two vacation `requests as an indicia of authority. On the contrary Supervisor Holshauser's'credit- ed testimony convinces me that this was but an incident of meddling of_ less import, than his later intrusion into the -Busch affair. Upon all of the foregoing, therefore, I conclude and find that Robert Martin was not a supervisor as defined in the Act. C. The Alleged Discrimination against Mrs. Mary, Busch 1. Sequence of, events Mrs. Mary Busch was first employed by Respondent in June,1961. Her employment extended to March 1962, from January to May 1967, and -from August 1967 until' her termination -on June 26, 1970. During the year and a half prior to June 9, 1970, she was employed as a winder, engaged in the winding of coils which constitute an integral part of a small electric -motor manufactured by Respon- dent. 'On June 9 Mrs. Busch was assigned to new duties, the operation of a 'Dennison Airpress, a machine designed, to take two preformed flat, C-shaped segments of laminated metal and, bythe application of pressure on each, join the two, locking them together. The resulting product of this operation was a flat, laminated metal frame, several inches square, into which had been inserted a prewound' coil. In addition, the frame contained a cylindrical center opening 4 Cf. N L.R.B. v. Sagamore Shirt Company, 365 F.2d 898 (C.A.D.C.). 8 Compare: Freedman Loader Corporation, 127 NLRB 514, 516. ' 9 1 am not persuaded that recommending to an ill worker that she go home when she so requested constitutes more than an exercise of basic of precise measurements calculated to receive a rotor at the next step of assembly, thereby completing the motor. The frame in "pushed,, together---' "form, - -was -referred to throughout the' record as a "stator." The `-operation by which the two laminated segments of the frame were joined by the press,`as described above, was called the "bushed together." Mrs. Busch beganwork on the so-called 326 motor on June 24, and from the very beginning of the job she claims to have had difficulty. As she described it, the laminated segments became lodged in the machine and could only be removed by prying. The finished job was; warped from excessive pressure. After several complaints by Mrs. Busch the machine was shut down at the direction of Employee Don Ostringer, the tool and die man, and Mrs. Busch was assigned to another machine. On the following day, June 25, Mrs. Busch continued to. operate the newly assigned machine with apparent success after some initial difficulty resulting from stator frames becoming lodged in the press, as had occurred on the other machine. On Friday, June 26, Mrs. Busch returned to'thesame job at the same machine she had used at the close of the previous day. She worked the machine' at day.' At approximately 3:45 p.m. Production Supervisor Holshauser was alerted by an inspector, Dotson, to a condition of the "pushed -together" 326 stator then being produced, where- by it would-not fit into a standard gauge. Further inspection disclosed that this problem was caused by th ;warped ;or bent condition of, the stator, theresult.of excessive pressure in the "pushed-together" operation. Holshauser checked further and found that in the boxes ot-stators "pushed- together" by Mrs. Busch during that day all of the stators were warped.10 At this point 'Robert Martin `injected himself into the affair,'having already been presented with the machine problem by his superior, Holshauser." Martin, who apparently had" not checked the pressure' off Mrs. Bush's machine to, that point, went to the machine, checked ,the pressure, and, according to Mrs. Busch, found it excessive. He then turned to the stators'shehad completed and told her that she had'bent,3,000 of them and that she was terminated. Ina distraught condition Mrs. Busch then went to Holshauser and told him that Martin had terminated her.- Her account, of this incident substantially agrees with Holshauser's, thus: ' He, told me that Bob didn't have the, authority46 -fire me, but he did, and I asked him for a reference and -he told me no because of the work} I have done. I told himfI also did good work he had said. He said yes,_ but, this time I didn't do good work and this vwas it. Earlier Mrs. Busch testified to the incident with lYJartin and to the extent of the damage, thus: Q. When he came over were you there when he tested the pressure? A. I didn't see the pressure- Q. Late afternoon now?` A. `Yes. ' Q. What happened? common sense. 10 At the trial one of these stators was displayed and identified by all parties as typical of the damage found. Upon my inspection of the part I can attest to the obvious warping. JAKEL MOTORS INC. 151 A. He said the pressure was on 1500 pounds when he tested it. Q. Did he say, what it should have been? A. Six hundred. Q. Then what happened? A. Just before.quitting time, he had called me over and told me that he felt that he had to terminate me because I had .bent those motors. If I had ruined 200 or 300 he could have excused but, with 3,000 he couldn't do that. Q. Had you done approximately 3,000 that day, do you think? A. Yes. TRIAL ExAMINER: Bent them? THE wITNESs: Bent them like-this (indicating). While Mrs. Busch, by the testimony , quoted above, admits: to having, bent 3,000 stators it is to be noted that previously she testified that "every product I turned out on my machine I turned over and they all looked perfect." Continuing, she then stated: Yes, every twelve or thirteen you have to hold them up to,see if they were pressed together right. Q. Did-you do that? A. Yes. Q. Did you observe anything particular about the product? A. No, Just these,wires were loose. TRIA XAn R: Which wires? THE, w,rrNESs: , These wires were loose on some of them, so I put them back in the box. TRIAL EXAIINER:_That is,on the winding? THE wnNEss: Yes, that's the only thing I observed, and I turned them over with my hand and looked at every one of them., Thus it is apparent that Mrs. Busch has contradicted herself in detailing not only the degree of personal inspection she made of her work but of the amount of the damage. I accordingly prefer-to rely on, the account of damage given by Production Supervisor Holshauser which conforms to Mrs. 'Bunch's one estimate that the day's production of apparently 3,000 she "bent them like this" (supra). When Holshauser found that all the stators in the boxes completed by Mrs.' Busch were, bent he shut down the machine and terminated' her." He then proceeded to estimate the extent of, the damage and devise; a possible remedy. On the critical June 26 Mrs. Busch produced 2,908 stators, a, figure close to her own approximation at the hearing. Of,,.this number,,2,224 stators were found, on final 'inspection, to be faulty. The remainder, were satisfactory and were passed' on for shipment. This final inspection-was accomplished by the assignment of an employee for 2 days to cull out those which might be reprocessed. Sixty-four stators were eliminated as scrap . The remaining 2,160 units ,were set aside for further attention. Meanwhile, beginning on'the day after Mrs. Busch's termination, President Jakel and the tool:and-die technician, Ostringer, devised a jig or die to straighten the bent stators. Within-a week or, 10 days 11 Respondent takes no responsibility for Martin's apparent efforts to deliver the termination message to Mrs. Busch . Nor did Mrs. Busch in her testimony have any doubt that she, was being terminated by production this accessory was fabricated and fitted to a press machine. An operator assigned to the machine,, devoting 2 days to the task, straightened the stators and they were considered reuseable. While the total cost of Busch's error was not calculated on the record the elements of the salvage operation were stated. Thus, in addition to the 10-day delay that resulted from the error there were 64 stators actually scrapped; 2 days of inspection were required to cull out the salvageable items; and another 2 days of an operator's time to reprocessing the bent stators . In addition to this, President Jakel estimated that the time and materials required to prepare a die and press machine for the straightening operation amounted to $750. Mrs. Busch has, not since been rehired or reinstated since her June 26, 100, termination. 2. Conclusions There is no doubt that Employee Busch was responsible for 2,000 faulty and unuseiable'products on Friday, June 26, and as a consequence Respondent was put to considerable expense and delay to rectify the error. It is of no consequence that something was wrong with Mrs. Busch's machine, that it should have been corrected, or that she may have produced similar warped stators on earlier occasions. The fact of the matter is that she failed for a whole day to detect by casual inspection even one out of over 2,000 warped stators as she turned them out of her machine. The defect was not hidden or indistinct. At the trial I was shown a stator identified by Mrs. Busch as typical among those produced that day and the warp was clear and unmistakable. There just can be no question that damage was done and that it had not been detected before 3:45 on the afternoon of that workday. What has occurred- here -was a complete failure of an employee to note an obvious error and a persistence in that error for almost a full workday. Under such circumstances I fail to see what connection Mrs. Busch's membership in the Union or her activity in behalf of it has with Respondent's right to protect itself from losses such as were created here. It is true, of course, that had it been shown that Respondent used this particular instance as a device to eliminate Mrs. Busch because of her union sympathies then such a reprisal could not be tolerated. But the evidence does not show this. All it shows is the coincidence of known union membership and activity on the one hand and poor workmanship on the other, and nothing more. Faced with two such unrelated facts I do not understand the Act to require an employer to stand idly by and let his production become a shambles. Respondent did what any reasonable employer might be expected to do-terminate a demonstrably inefficient employee who has caused him a serious loss. I do not find in this any discrimination within the meaning of Section 8(a)(3) of the Act, nor the interference, restraint, or coercion of any employee within, the meaning of Section 8(a)(1). Supervisor Holshauser and not by Martin. I find it of no consequence therefore that Martin injected himself into the incident, as described. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Interference, Restraint, and Coercion; 1. Interrogation and threats -During the course of the Union's campaign preceding the election the Respondent's officials engaged in a number.of incidents which relate, to the employees' statutory,, rights mnd the ultimate validity of the July 2, election. In early April 1970, prior to the filing ofthe petition foran.election, President -Otto Jakel came to. the work place of employee grace Meyer and engaged her ina conversation which she wcredibly describes: I was running ,the bracket machine and he came up behind 'me' and-asked me if the rumors were true. I,said, "What rumors,are you talking about," and he said, "Oh, come on, Grace." He kind of hit me_on the shoulder, "you know what I'm talking about." " I said, "do you mean the Union?" He said, "you know that's what I mean." I said "yes, they are, they are very true." And he held out his hand and he said, "Well, I'm awfully sorry to hear that," he said, "Union is like having your hand full of jello, it won't,stay in your hand, it falls over the side, and everybody gets hurt." Around the, same time Jakel,approached- employee Lorrain Sa,uerwein at her work place and engaged her in, a conversation, as, was his frequent -custom with the employees. This conversation turned, to a- discussion of the Union, as credibly described by Mrs. Sauerwein: We just talked about things in genehl and he said. he had heard rumors about the union coming in and if I knew anything about it, and I said no, and he asked me what I, thought about it, and, I said I didn't really know because I had never had experience with a union before. -Later in April, on the 27th, upon her return to, work after recovering from an eye injury Mrs. Mary Busch, whose termination I have• considered earlier (supra), was ap- proached by Jakel and he engaged-her in a conversation about the Union. Mrs. Busch credibly, describes ;the conversation, thus: We talked about everything. It wasn't unusual to talk about anything, but this day, he asked meif I was for the Union or for him and I told him it was my own personal belief as to-what I was. Q. , Was anything,else said? A. - He asked me if they had been, to my house and ,I answered, "No," because I really went-to them.12 Sometime in May 1970 - employee Viella Floyd had occasion to engage in conversation with Jakel as they sat `at a table, in the, plant, in the company of another employee, identified, only, as "Charlotte." This conversation she ,credibly describes thus: Well he asked,me about. the Union, what I thought about it and- , Q. (Interrupting) was that approximately the exact words he used? A: Yes, and he asked whatI knew about it and then he asked me, before the,conversation, he asked if'I had been threatened to sign,a card. Q. What did you tell him about this? A. - I said, "No." Finally there was the testimony of employee Rosa Lockeby concerning an extended controversy she had had with President Jakel beginning in February or March 1970. It appears that Jakel and employee Lockeby ' had an exchange of words over her, work. Almost immediately thereafter Mrs. Lockeby was visited at her home by union representatives seeking to 'solicit her support ''in the campaign then in progress . Mks. Lockebyy became ' suspi- cious ,of these visitors, believing that they had bee'nsent by Jakel to trick her into signing a union card . She accused Jakel of such-plot when she came to work on the following day and Jakel went to great pains to persuade' Mrs. Lockeby that he was not engaged in trickery. Mrs.-Lockeby was apparently hard to convince-and Jakel returned daily to her Work place to assure her of his lack of connection with the incident. In the course of these conversations in which he was being accused of tricking Lockeby with-'uiiion Visitors-'Jakel would ,pose questions concerning the Union, its progress among the employees, and inquiries as to who would be urging the Union. Because of thepeculiarfashion in which Jakel's questions arose I would be disposed not to 'consider this particular interrogation because it could well be concluded that it was Lockeby who generated the conversations and the ques- tions'and not Jakel. After the-election petition had been filed in April, however, Jakel's continuing questioning of Lockeby assumes a different complexion for the incident of the visitors had been 2 months into the past and the election campaign was at hand. During this `later period,`according to Lockeby, Jakel continued to question her and -,others about how other employees ,' felt about` the"Union, specifically inquiring about Mary Busch, Grace Meyer, Viella Floyd, Lorrain Sauerwein, andJoyceFeldman. A final instance of questioning - employees was the conversation in September 1970 between employee 'loyd and Supervisor George Cunningham on the occasion of an interview with Floyd preliminary to her return to work after recovery from illness. After discussing 'herrrehire, Cunning- ham asked employee Floyd what she thought about' the Union. Jakel's conversations with 'employee ' Lockeby, as de- scribed above, extended beyond 'his questions' concerning the Union.' Thus, Lockeby credibly testified that on'the occasions Jakel would ask about the Union both-before and after the filing of the petition,'as detailed "above, lie would invariably add the comment that he would close the , plant if the Union came in. As a'consequence, of the fear that- this engendered tin her, Lockeby testified, she spent a consider- able amount of time during the election campaign 'urging the ' girls not to vote for the Union lest the plant would be closed down.13 2. The, granting of -a paid holiday Memorial, Day, May 30, had not been a holiday -in Respondent's-plant prior to 1970. Early in October 1969 a suggestion was submitted in the, Company's suggestion box that Memorial Day be made ,paid holiday. It=is stipulated 12 In reaching the, conclusion that,Mrs. Busch's termination was not 13 The foregoing-findings are based-on the credited testimony of the discriminatorily motivated, but for, cause (supra), I have taken into respective employees involved in the incidents described. I do not accept, consideration this conversation with Jakel. Jakel's -blanket dental of the conduct attributed to him. JAKEL MOTORS INC. 1,53 that on October,10, -1969, this suggestion, and others, were announced to the,employees_by a posted notice. Thereon was stated: - Suggestion: Memorial Day Holiday ANSWER:. The paid Holiday program is under review at the present time and as soon as we have come to a decision you will be.notified,. Following the_ posting, of this. notice, sometime in Novem- ber_ 1969, the subject of granting Memorial Day as a paid holiday was discussed by the Respondent's accountant and its attorney,' W. J. Taylor, Jr., who credibly testified to the event. The consensus of this conversation was that from a business, point of view granting the holiday would put the Company in line with,the practice followed by plants in the locality and that it should be done, Thereafter, in the,spring of 1970, _"as we. neared, Memorial Day President Jakel called Attorney Taylor and asked him whether, in view of the union organizing campaign, then going on, they should go ahead with the paid holiday. Attorney Taylor testified only to the fact that. he was consulted by Jakel about this time but he did ' not 'testify to the advice that he gave. Jakel, however, testified that he was.told to go ahead because he had made the decision,, earlier and that the granting of the holiday was in the course of his business. The holiday was announced by notice on May 26; 1970. ' 3. Conclusions Citation of authority would be superfluous to establish that a threat to close a plant on the employees' selection of a union interferes with them, as well as coerces and restrains them in the exercise of their statutory right to freely select their bargaining representative. Moreover, when under such circumstances an employer methodically questions his employees as to their union preferences and its progress among the employees he is most certainly displaying more than idle curiosity. Such questioning in the context of an expressed determination to close the plant has been consistently held by the Board and the courts to constitute unlawful interference, restraint, and coercion.14 I accordingly conclude and find that the questioning here and Jakel's threat to close the plant violate Section 8(a)(1) of the Act. It would be expected that the granting of a new paid holiday would normally be accomplished at some time reasonably prior to the holiday as Respondent claims it did here, and not at some considerable time before or after it. But this is not a normal situation. This new paid holiday, a decided benefit to the employees, was announced midway between the request for an election on April 13 and the holding of the election on July 2; a period of time hectically devoted to enlisting members into the Union and, on Respondent's part, to inquiring into the union sentiments and membership of its employees and the threat to close the plant if the Union won-all of which I have found to violate Section 8(a)(1) of the Act. In such a context as I have described it would be completely unrealistic to conclude that the gift of an 14 N.L.R B. v. DesMoines Foods, Inc, 296 F.2d 285, 287 (C.A. 8); Frankel Associates, Inc., 146 NLRB 1556. 15 J. W. Martell Co., 168 NLRB 435. immediate paid day off has no influence upon the employees' preferences to be expressed in -the coming election. To the extent, that they were thus influenced, or indeed that they reasonably might have been expected to be mfluenced, by such timely beneficence they were thereby interfered with, restrained, and coerced in the exercise of their statutory rights, including the right to vote freely in a Board-conducted election. I accordingly conclude and find that by granting Memorial Day asa paid holiday, under the peculiar circumstances present here,'Respondent further . violated Section 8(a)(1) of the Act.15, V. OBJECTIONS TO ELECTION In addition to the foregoing findings and, conclusigns upon which I shall base my recommendation for a remedy to the unfair labor practices committed I also have before me objection to the conduct of, the election in Case 14-RC-6423, referred to me by the Regional Director for disposition. A review of the pleadings and related evidence discloses that the objections raised are substantially identical with the allegations in the complaint of violations of Section 8(a)(1). To, the extent therefore, that, 1 have already treated of these allegations and found certain of them to constitute unlawful conduct, as alleged, it'would be an undue burden on the record and reader to reiterate these findings irh a parallel context. Suffice it to say that in the instances, of interference, restraint, and coercion which I have already found (supra), it is an a fortiori conclusion that such conduct interferes with the exercise of the free choice of voters necessary for an election.16 I shall accordingly recommend that the election be set aside. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 1V, above, occurring in connection with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY It has been found that Respondent has violated the At in certain respects. I will accordingly recommend that' an order issue requiring Respondent to cease and desist therefrom and to take affirmative action which will effectuate the policies of the Act. Nothing herein, however, shall be deemed to require the Respondent to withdraw the paid holiday which it granted its employees.17 I shall further recommend that the election conducted on July 2, 1970, be set aside, inasmuch as I find the objections on which the hearing was directed have merit, and that a new election be held when the Regional Director deter- mines that the time is appropriate. 16 Irving Air Chute, Inc, Marathon Division, 149 NLRB 627, affd, 35( F.2d 176 (C.A. 2) 17 Cf. Pepsi-Cola Bottling Company of Sacramento, 147 NLRB 410. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon,the foregoing findings of fact, conclusions of law, and the entire record in this consolidated case and pursuant to Section 10(c) of the National . Labor Relations Act, as amended, I hereby issue the following recommended: 18 ORDER Jakel-, Motors Incorporated and Jakel Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees concerning their union membership and preference., (b) Threatening its employees that it will close its plant if they select ,a union-to represent them. '(c) Granting'employees any further paid holidays under circumstances which would influence them in their selection of a bargaining representative. (d) In any like or - related manner interfering with, is In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of, the National Labor Relations Board the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become, its findings, conclusions, and order, and all objections thereto shall be, deemed waived for all purposes. 19-In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading : "Posted restraining, or coercing its, employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which it 'is deemed will effectuate the policies of the Act: r (a) Post at its Highland, Illinois, plant the ' attachednotice marked "Appendix." 19 Copies Hof said" notice, on' forms provided by the Regional Director for Region '1'4, ' after being duly signed by the Respondent, Iihall` be posted immediately upon receipt, thereofin conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that -said^notices are not altered, defaced, or covered by any other'inaterial. ' (b) Notify "the said Regional Director,- in writing, wit in 20 days from the _receipt -of, the-Trial Examiner's Decision, what steps it has taken to comply herewith.20 IT -IS FURTHER RECOMMENDED that 'the election held on July 2,` 1970,'m * Case 14-RC4423 be set aside and that the Regional Director for Region -14-conduct a''new election when thetime is appropriate. by,Order of the National Labor RelationsBoard ," shall be changed to read "Posted Pursuant to a Judgment of the United States - Court of Appeals Enforcing an Order of the National , Labor Relations Board." 20 °Ill the event 'that this recommended Order is adopted by the Board; after exceptions have been filed, this -provision shag be modified to read-' "Notify the Regional .Director for Region 14, in writing, within 20-days from the date of this Order, what steps , Respondent has taken ,to,comply herewith."