Di Giorgio Leisure Products, Inc.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bell Manufacturing Division, I3 Giorgio , Leisure `Products, Inc. and Teamsters,' Chauffeurs, Ware=, housemen and Helpers Limon, 'Local No. `448, International 'Bi otherhood ,.-of Teamsters, Chauf feurs, , Warehousemen and ' Helpers sof America, Independent. Case... l9-CA-477.7.? , August 11, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On March 29,197 1, Trial Examiner Leo F. Lightner 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. He further found that the Respondent had not engaged in certain other unfair labor practices and recommended that the allegations in complaint pertaining thereto be dis- missed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief; and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings,3 conclusions,4 and recommenda- tions of the Trial Examiner, except as noted herein. 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 and hereby orders that the Respondent, Bell Manufacturing Division, Di Giorgio Leisure Products, Inc., Kalispell, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. IT IS FURTHER ORDERED that the allegation relating to interrogation at a meeting of employees contained in paragraph 12(c) of the complaint be, and it hereby is, dismissed. i This case was consolidated by the Regional Director for hearing with 192 NLRB No. 77 Case 19-RC-5356, and Trial Examiner made rulings and recommendations with respect to certain objections filed by the Union to conduct affecting the results of, the,, election held-on May 1, 1970, pursuant to an Agreement for Consent Election. Concerning the objections, Sec. 102.62(a) of the Board's Rules and Regulations provides that in the case of a cogsent- election - agreement of the type,,, involved herein "the rulings and determinations by the regional director of the results thereof shall be final. On June 7, 1971, the Board issued an order serving these cases and remanding the representation case to the Regional Director for'further processing by him in accordance with the terms of the consent-election agreement. Respondent's opposition to this order is without merit and its motion for reconsideration, filed on June 17, 1971, is consequently denied. On July 2, 1971, the Regional Director issued a Supplemental Report on Objections and Order Setting Aside Election. On July 16, 1971, Respondent filed with the Board a motion for reconsideration of the Regional Director's supplemental report, asserting that the procedure followed in this proceeding is inconsistent with "the principle of due process of law." We deny this motion as lacking in merit. See Ayer Lar Sanitarium, 175 NLRB No. 119, In. 1; 179 NLRB No. 94, enfd. 436 F.2d 45 (CA. 9). 2 We have carefully examined the record evidence, including the exhibits, and find no merit in the Respondent's assertion of bias or lack of diligence on the part of the Trial Examiner. Concerning the Trial Examiner's credibility findings, it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no basis for reversing his findings herein. 2 In finding that the Respondent had knowledge of the employees' union activity at all critical times herein, we do not rely upon the testimony of Bill Soderstrom concerning his asserted conversation with Ostrum on March 26. 4 In the attendant circumstances, we agree with the Trial Examiner that the Respondent's interrogation of employees Westphal and Bjork was coercive and violative of Section 8(a)(1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Kalispell, Montana, on October 20, 21, and 22, 1970, on the complaint of General Counsel, as amended, and the answer, as amended, of Bell Manufactur- ing Division, Di Giorgio Leisure Products, Inc., herein called the Respondent.' The complaint alleges violations of Sections 8(a)(5) and (1) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. Resolution of the objections filed by Petitioner is set forth infra The parties waived oral argument, and briefs filed by General Counsel and Respondent have been carefully considered. i The name of the Respondent was amended at the outset of the hearing to correctly reflect its identity. A charge herein was filed on May 6. A complaint was issued on June 22, and amended at the outset of the hearing herein . Pursuant to an Agreement for Consent Election, approved by the Regional Director for Region 19 on April 15, an election was conducted on May 1. Petitioner filed timely objections to conduct affecting the results of the election on May 7. On June 22, the Regional Director found that Petitioner's objections raise substantial or material issues which could best be resolved by a formal bearing and on June 22 ordered a consolidation of the cases BELL MFG., DIV. -DI GIORGIO LEISURE PRODUCTS, INC. 571 Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a California corporation. Bell Manufac- turing Division is one of five divisions, and the only one with which we are herein concerned. This division is located on the,-outskirts, of Kalispell, Montana, where it is involved in the manufacture and distribution of recreational vehicles. During,fbe calendar year immediately preceding the issuance of thecomplaint,.,a representative period, in the course . and , conduct of the operation of the Bell Manufacturing Division, Respondent purchased more than $50,000 worth of goods ,directly from outside the, Stateof Montana and sold products in excess of , $50,000 to customers located,, outside the State of Montana.' The complaint alleges, they answer admits, and, .l find that Respondent is an employer engaged in commerce within the meaning of,Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local, No. 448, International Brotherhood of Teamsters, ^ Chauffeurs,-'Warehousemen &_ Helpers of America,, Independent„herein called the Union, is a labor organization within the meaning_of Section 2(5),of the Act., III. THE ALLEGED- UNFAIR LABOR PRACTICES' The Issues The principal issues raised bythe complaint and-answer and Btigated'at the hearing are whether the' Respondent: (1) engaged in-conduct constituting interference, restraint, and coercion, thus'violative of Section 8(a^)(1) of the Act, by (a) Jack Mulford, general manager, on or about March 24, threatening an employee that anyone talking union in the shop is going to go down the road [be-discharged]; (b) Glen Kerzman, production manager, on or about March,31, inteirogatmg''employees about their union activity; (c) by L.R. Ostrom,, vice president, at meetings of employees on March 27-or' April 30, info- ing'employees that Respon- dent was awa`r'e `that the employees were talking about UJnionsp^and'before,permitting that to happen Respondent would 'bring in its own trailer union, announcing a general wage increase, interrogating employees about their union activity; threatening .employees with reprisals and loss of benefits,. in-the° event the union was voted in,,,-,advising employees that if the Union came in they- would not be treated like;' human` beings but more ;like machines, that physical examinations would bejrequired and that two who could-not<pass physicalsexarninations would no longer have jobs,- that employees -would lose" existing fringe-benefits such ' as'purchasing at wholesale cost, through ,Respondent and the use,of-company tools and, equipment for personal for hearing ,and, resolution of,-the-issues. All dates herein, except where otherwise indicated, are 1970. 7, In- addition the Trial Examiner has noted some 16 additional stenographic errors. The record has-been correctedaccordingly. 3 In so finding, I am not unmindful of, but find of no consequence, the business, and threatening that the plant would work less months during the year and close down in- the wittier, to avoid payment of holiday pay and the employees would no longer be treated as'friends;° (d),by , Ostron between March 27 and April 30 advising an employee, that if the plant went -Union, the, plant would- be ;shut down rand -an inventory taken and the crew-probably reduced; (e) by Ostrom on or about April 15 promising, an^employee-an-additionalwage increase; (f) by Foreman Stan Nielsen on or about March 30 threatening; an employee., with -loss, of time off if the union came in; (g) by, Foreman: HaroldpPatterson on or about April 3 interrogating an -employee about his union activities and advising the employee that Respondent knew the employee , met with --the union representative from Missoula and if the Union came inthey were going to shut the plant and move it; (h) by Foreman Patterson on or about April 25 advising an employee-that'Ostrom said he would shut- the plant down for '90' days if the plant went union; or (1) by Ostrom- on or about April 4 advising employees that Jack Mulford had been discharged because of employee dissatisfaction with Mulfoid's conduct; or (2) engaged in unfair labor practices in contravention of the provisions of Section 8(ax5) and (I)`of the Act;' by failing and refusing to bargain collectively with the union as the exclusive bargaining representative of Respondent's em- ployees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other, terms and conditions of:,employment, as more fully'iiescribed in the complaint, commencing -March 30, and at 'all tunes thereafter' The objections to conduct` affecting the results of the election are: the granting of wage increases on or after March 30, with the intention' of destroying petitioners' majority, status; threatening to close the plant: if the employees` chose the Unioni'as :their exclusive collective- bargaining agent, commencingMarch''30, and refusing- to bargain ollectively with the Union, commencing March 30 after it voluntarily discussed"wages and fringe- benefits with'the union'repreientative;`in-eac'h instance constituting conduct alleged as unfair labor practices, as set forth supra. Respondent denied the commission of any unfaitTlabor practice. ,Supervisory Personnel The complaint, as ,amended, alleges, the answer, 'as amended; ,admits, and xI `findthat at all times material L.R. Ostrom, 'vice ' president, ' Jack"Mulford, general- manager, Glen Kerzman, production manager, Harold -Patterson, foreman, and Stan Nielsen, foreman, were, agents of` the Respondent acting on its behalf, and supervisors within the meaning of Section 2(11) of the Act 3 Background The facts set forth under-this subsection are, undisputed. There has been 'no prior history-of collective, bargaining between the Respondent and the Union. On Saturday, March "21, Frank Westphal, -who. at , that fact that Foremen Patterson and -Nielsen were separated on,iGfay 1, and that Jack Mulford was, separated on April 4, and after April 4, Ostrom succeeded Mulford 'as general manager. The, allegations of miscondjict by the three who were separated predated the respective date of separation.,; 1 572 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD time was employed-by Respondent as a finish carpenter called the attention of General Manager Mulford to an erroneous 'computation- of Westphal''s paycheck.4 As a result of dissatisfaction with Mulford's response, Westphal 'advised other employees ,of his- inability to -obtain an adjustment. Thereupon, Westphal contacted the Union and a meeting was scheduled for the union hall at 5' p.m. on Wednesday, March 25. Themeeting was attended by 30-35 unit employees. -At'-least 28 employees, signed union authorization cards that evening and,gave them to Leonard I. Disbrow,union business representative. The printing on each authorization-card read: Authorization for Collective Bargaining Representation The, undersigned hereby designates- the- Teamsters Union Local 448, Missoula, Montana, as his bargaining agency for collective bargaining regarding conditions of employment under the laws of the United States of America and/,or the, State Laws and any law amendato- ry thereto.-, Effective this date 19 and/or until 19- Witness, Signature It is un i uted that there were 48 employees^in the unit on Respondent's payroll on March 25 and March 30,`and this number was reduced 6 ,46 on May 1 6 Accordingly, I had tbt nion had` in its ,possession authorization cards from a m ijority of the employees in°tl a unit at all times on and after` March 25. On March 27, Disbrow advised Respondent, by-letter addressed to. Mulford, that it represented $espondent's production employees and truekdr'ivers and requested a meeting 'for the purpose o negotiations. On Monday, March 30, after receipt of the Union's letter, Ostrom met with Disbrow. The dispute relative to the events of this meeting is set forth infra. Subsequently, on April 1, the Union filed a`petition for election. On April 14, the Petitioner and Employer entered into a consent election agreement , approved by the Regional Director on April 15. An election held on May I resulted in 2q.votes for and 22 votes against petitioner, with no challenged ballots, out, of Fa, total of 44 eligible voters. Objections to conduct affecting the results of, the election were timely, filed. 4 I find it unnecessary to treat at length the reason underlying Westphal's contention, or'the accuracy of his representation. 6 Identified as: K.W. Bexell, Jack Bjork, Mel Colby, Robert Daniel on, Steven Drake, Kenneth R. Garfield, Walter A. Gilbert, Gloria Hellmann, Thomas Holston, Gary W. Humphreys, Richard Hurlbutt, Raymond L. Ingram James A. Johnson, Charle Johnson, Clifford Knote, C.O. Letbetter, Cara E. Lundberg Kenneth A. Meidrum , Lyle M. Moore, Juan F. Polledo, Jack Rector, Jerry-Sehreck, Alice Soderstrom,'Charles Stevens, W, Charles Sr., Selena Weed, Frank Westphal, and Terry R. It appears unimpo^nt that additional cards were signed and turned in to Disbrow on March 30 and April S. e Quentin Vitt was separated on April 1, and Marvin Hoge was separated on April 3. There is no evidence they were replaced. Respondeht asserted three other employees -should bincluded in the unit bbbause`they are not within stated exclusions. Respondent identified them as (1) un unnar cd purchasing agent, (2) a mechanic in a service shop Interference, Restraint, and Coercion The evidence relative to acts and statements of Respon- dent's supervisory personnel, allegedly in derogation of the provisions of Section 8(axl) of the Act, is summarized under the name of the respective supervisor specified in the complaint and testimony. General Manager Milford Frank Westphal credibly related that'rt March 21, during his conversation with Mulford, Mulford advised Westphal that Westphal had misconstrued what Mulford had said at an earlier meeting relative to entitlement to a pay differential. Westphal then observed that Mulford's explanation was worthless. Westphal advised, Mulford "there isn't a union contract in`the world that wouldn't give a man a better break than that." Mulford responded that if Westphal, didn't like it "you can go ,down the darn`road" Westphal asserted Mulford stated" that if''anyone,talked union "they are going;to go downr, the road." and that if anyone tried to force the Union into the plant, "I'll lock this place up tighter than a drum."? Production Manager Kerzman Terry H. Westphal was employed as an electrician from September 1967 until ' August 1970. Westphal credibly related a statement made by Kerzman on She morning of March 31, following a union meeting which had been field on the night of March 30. Kerznlan -asserted that he had heard that it didn't make any difference to Westphal whether the plant went union or not. Westphal related the same afternoon he had a conversation with Kerzman in Kerzman's office. Kerzman inquired if Westphal, was in favor of the union and received an,- ffirmative response. At that time, Westphal, also advisedl{erzman that he was tired of Mulford dictating what ie^could, or-couldnot make or what he could or could not do 8 Foreman Nielsen Jack Ejork has been , employed by Respondent for 2 years, and at the time of the bearing was a skinner on the assembly line. Bjork, credibly related a conversation he had with Foreman Nielsen on March 30, between I lam., and 12 noon. Bjork bad obtained Nielsen's permission to take the prior Friday , off in order to attend a cow sale.-Bjork named Elmer Sieler, and (3) a lift truck operator or material handler named Bud Gard. Neither Sieler nor Gard is, Included on the "Employee Seniority, List" of Respondent,; reflecting March 16 pay increases. These three are not included in, the list from which the foregoing computation was made. There is no explanation of the discrepancy between the above total and the finding of the'Regional Director that 4l was the approximate number of eligible voters. It is undisputed that the unit , described- is the -Complaint is identical to ttte ' unit agreed to by the parties in a oongent election agreement. Section 102.67(f) of the Board's Rules and Regulations preclude the relitigation of the app{opriatenesr of the unit. " 'T Mulford, who was no longer employed by Respondent, did not appear as a witness. Westphal, a finish carpenter, was-employed by Respondent for various periods in 1968, 1969, and until July 1970. ' , 8 The denial of Xerzman that he made the inquiry of Westphal, which Westphal attributed to him, is not credited. BELL MFG. DIV. DI GIORGIO LEISURE PRODUCT 'S, INC. maintains a farm and, on occasion, is interested in the purchase of cows. On March 30, Nielsen inquired as to the results Bjork obtained at the cow sale, then advised Bjork that if the union got in Bjork would not,be going to any more cow sales. Bjork asserted he responded to Neilsen by advising Nielsen that no one threatened him .9 , Foreman Patterson Bjork credibly related that he had a conversation ' with Foreman Patterson on the morning of April 3 at what he described as a metal bench, during which two or three other unidentified employees were present. Bjork asserted'that Patterson related-that he "supposed" that Bjork was at the union meeting the prior evening, to which Bjork responded in the affirmative. Patterson 'then inquired as to how things went and Bjork responded that they had a good speech by a government man. ` 'Bjork= asserted that he realized that Patterson was pumping him for information and thought he would reciprocate - in, like manner. Patterson left and returned shortly advising Bjork that he was a "dumb s.o.b." that it was not a government man but a representative from the Union at Missoula. Patterson further advised if the plant went union thtOstroai had asserted that he would shut the plant down and ` that Ostrom had stated that he could move the plant anywhere he wished.10 - Raymond L. Ingram has been employed by Respondent as a plumber for 3 years and Was. so employed at the;time-of his testimony. Ingram credibly related' that he`° had a conversation with Patterson in mid-April during work hours, in his work area, with'Charles Johnson and Walter Gilbert present. Ingram related that everyone had been talking about the Union for a week `or two. Patterson advised that he had been- told they were` going to shut the plant down for 60 to 90 days if it went union *1 Vice President Ostrom There are several separate allegations of unfair labor practices by Ostrom, relative to employee meetings,-on the dates of March 27 and April 30, and relative to other matters, on April 4, between March 27 and April 30, and on April 15. These are next set forth seriatim. a It is undisputed that Nielsen is no longer employed by Respondent, having been,separated on May 1. It was stipulated that Nielsen advised counsel for the General Counsel and Respondent by telephone that if he were called as a witness he would testify that he had no recollection of the conversation, related by Bjork, having occurred. 10 `Patterson was'separated by Respondent; as I have found supra, on May 1. It was stipulated that Patterson advised counsel for Respondent and for General Counsel by telephone that if Patterson were called as a witness he would testify that heat no time inquired of Bjork whether Bjork attended a union meeting. Patterson also .would deny ever advising that Ostrom or the Respondent would close the plant down if the Union came in, asserting his advice, when asked, `was that he did not know. 11 It was stipulated that Patterson by telephone advised counsel that he had no recollection ' of having advised Ingram-that Ostrom or the company would shut down the plant for'60 or 90 days, or any other period of time, by reason of the union being successful in its organizing effort. 12 Kenneth N. Garfield, employed as a door hanger for a total period of 5 yearn at the time of his testimony, corroborated Westphal and related that Ostrom asserted that Ostrom wanted to bring in his own union. 13 Terry Westphal corroborated Ingram and related that Ostrom said that before he would allow any union to come into the plant he (Ostrom) would bring in his own union. Meeting of March 27 '573 It is undisputed that a meeting of all the employees at the plant commenced about 3 p.m. on March 27, that it was attended by the supervisory personnel, and that Ostrom made certain statements to the group . Frank Westphal credibly related that Ostrom advised that he had .-been awakened by a telephone call that moriung , and was surprised to find out that he was laving labor ,relations trouble and that people who were working for him were negotiating with the Union.12 Ingram credibly related that Ostrom advised ,:.the employees not to be , too hasty about selecting a union, that there was a trailer union somewhere in Idaho, and Ostrom would see if he could "get': this union. -Ingram asserted Ostrom advised, however, the wages obtained by that union were lower than the rates then being -paid to Respondent's employees.15 It is undisputed that at the March 27 meeting Ostrom announced the granting of wage increases for most, of the employees by distributing copies of existing and :proposed hourly rates effective March 16, the beginning of that pay period. There is no evidence of any prior announcement of a wage increase.14 Ostrom asserted that productivity- had decreased during the first 3 months of 1970-by 20 percent when compared to the same period of the prior year, and this was his only major concern in talking to the employees 'on Mauch 27, "anything else was only academic ` or inconsequential.' Ostrom related the meeting, was devoted to-economics and he was-not concerned about unionism.15 Ostrom asserted the pay schedule was'typed on March 26 and reflected the combined -effort of Kerzman and Ostrom. Initially, Ostrom asserted the pay raise was computed annually by hiiii, with the help ,of Kerztnan, "to reward those who had grown and were worthy-of and in need of a new pay scale." 16 Ostrom then, acknowledged that when Charles Johnson inquired as to why.helad ,not received a raise, he (Ostrom) responded that Johnson had had a' raise The denials of these assertions by Ostrom are not credited. Ostrom acknowledged he did-advise the employees that there were ,unions "in this industry-I would put them in contact 'with." ' Ostrom also' acknowledged advising the employees that it'had, been his intent to pay the most he could and "all the benefits organized labor-has fought for and gotten, such as, holidays, vacation pay,,and other other-fringes, health and welfare." 14 The wage rates listed reflect that, of, a total of 46 employees, II received 'no increase. The increase per hour of the others was: -1 received 5 cents, 20 received 10 cents, 5 received 15 cents, 4 received 20 cents, and 5 received 25 cents.,, Respondent offered noo explanation of the reason for these variations of amounts. 15 However, Ostrom asserted the cut in productivity was the result of his deliberate action. He explained, "I made a ,conscious percentage reduction in production starting in January." He di4 not replace employees separated and took three employees off the production line and transferred them to delivery of products. '10 However, Ostrom provided a somewhat different description, asserting he had five or six copies of the pay increase in his hip'pocket,, and "after I made my pitch [about eeonomicsl said `By the way, here is our offer or whatever you want to call it, here is,the-new pay scale,' and- I handed it out." The use of the word "offer" in presenting a periodic or annual increase is incomprehensible. 574 DECISIONS, OF NATIONAL,LABOR RELATIONS BOARD within the year and would obtain another one "when we [Ostrom] think you are worth the money." 17 Thereafter, Ostrom identified , a document indicating pay raises , effective April, I (not March 16) was , General ManagerMulford's "second or third try"-,at preparing a pay increase for Respondent's employees, purportedly prepared on or afters t4tareh 23 is Trom Asserted his first knowledge of the employees' e raw.-, , unIori' =activity was between 9:60 and 9:30 a.m. on March 27. He then acknowledged having given a pretrial statement in which he statedhe heard-it from Mulford on March 26 or 27. Ostrom denied the accuracy of his sworn statement. - Bill Soderstrom, formerly employed by Respondent as a truckdiiver` for `several years' until August 1970, credibly related that =he returned ,from a 'trip to Los Angeles on March 26'and had'a conversation with Ostrom in Ostrom's office about 4-p.m. Soderstrom inquired as to what Ostrom knew about, rumors Soderstrom had heard 'about a union. Soderstrom asserted Ostrom advised he had heard that the employees had had a meeting, that if the employees wanted a union he (Ostrom);, did not-, really care, but he was not going to go overboard on wages-.19 I find no evidence of probative valuejo substantiate or corroborate, the assertion of Ostrom- that pay-increases were regularly granted in March of each year. in,fact the record establishes that - pay raises , ,were granted at other times during the year.,Ostrom was self-contradictoryin asserting that wage scales were reviewed every 190 days., Finding Ostrom's,r'ecitation-,incredible and implausible and lacking in candor , and accuracy, I am unable to accept his uncorroborated assertion about the nature of the pay raise. Respondent offered noI explanation for its failure to produce such documentary evidence 20 17 Ostrom inaccurately asserted,he^made "30 "some people happy and seven -unhappy." Lundberg related that'Ostrom asserted a,few would not receive an increase bbcause of increases during the year. As Why'Mulford would prepare a pay increase '-schedule if the past practice was for Kerzman and Ostrom to prepare it stands unexplained. It cannot be reconciled with the assertion of'Ostrom that he and Keazman on March 23 arrived at the amount of the increases granted. 19 The extensive effort of Respondent to, discredit Soderstrom I find, to be without substance. In so finding, I am not unmindful of the undisputed fact that Respondent's logbook reflects that Soderstrom and Ellis, truckdrivers, left Kahspell for Los Angeles-on Monday March 23 and for Longview, Washington, on Friday, March,,27. 20, Quite =the contrary of a regular annual raise appears in the recitation of Eleanor Iledstrom, office manager and comptroller of. Respondent for 5 years. She asserted that "periodically" Ostrom has gauged increases by the increase in the cost-of-living index, and that Ostrom and Kerzman used her ledger to decide "as to which wages are to be increased. This -recitation does not, establish a, practice of regular. annual wage reviews. How' a cost-of-living, computation on an existing schedule of rates, varying from $2.50 to $3.30,an,hour,-could produce. an increase of0-25_ cents per hour, as this record reflects was- effective March l6, is unexplained- 21 Ostrom denied the union was identified on March °27. I credit Westphal. - , ^2 Ostrom, acknowledged removing , what he described as a "veil of secrecy" about Mulford on April 4. Ostrom asserted the reason for Muh'ord's , removal', was that he was„ "excess baggage" and bad' ,been promoted above his, capabilities. Ostrom then related he had been directed by the head office to'discharge Mulford According to Ostrom he stalled on carrying out this directive. Ostrom denied giving any explanation to employees as to the reason for the discharge of Mulford. ' Ostrom acknowledged that , on March 27 during the employee meeting, April - 4 Frank Westphal credibly related that on March 27 Ostrom had advised the employees-if they wanted a union he thought they should form' their own union; not bring Jimmy Hoffa and the 'rest of his gangsters into the plant.21 Westphal asserted that at the employee meeting he advised Ostrom of Westphal's conversation with Mulford, supra Westphal then-also said, that 99, percent of all of Ostrom's trouble , was, ",caused by the little Hitler, Jack Mulford," who would tell people one thingK and do the opposite. Westphal ,related ,that Ostrom responded , that .Westphal should not worry as Ostrom was, going to make, some changes. On Saturday, April-4, Ostrom advised Westphal of "good news," relating that- he. had fired Mulford - Westphal responded this wawa step in'the right direetion.22 ,Between March 27- and April 30 Carl Lundberg had been employedb 'Respondent for approximately 2-1/2 years when he testified herein. He was assigned various duties,including building "toppers" which he described as a device which3 goes on the back end of a pickup. -Lundberg credibly related that - on, a date between the employee- meetings of March 27-and April 30 he had a conversation with Ostrom, in the topper shop, during which Ostrom advised Lundberg that-if the Union,came in to the mt "we might have to take inventory and slow down a little bit and probably- go to shorter working ' hours." Ostrom,also said dRes'pondent might go to a shorter working year and reduce the crew if the Union came in,23 Westphal advised him, "We believe you and we would go to the ends of the earth for you, but you ' are not running this thing any more. That madman in the office Mulford is running it now." Ostrom , in response, advised he would "solve that problem.." , _ ' Ostrom acknowledged -that Mulford at that. time, was in the yard adjacent - to the plant waiting to -leave on vacation. Ostrom advised. Mulford, "It is you they are -after." "Mulford'then departed for Missouri, ostensibly on vacation. ' The following Saturday , April' 4, Ostrom advised Mulford by telephone of his separation 23 The recitation of Ostrom relative to this conversation is an obvious avoidance. testified? A. ' Yes. Q. And you heard his testimony with respect to a meeting. He did not place it between March 27 and April 30. You heard that testimony ,did you not? A Oh, yes, I did. Q ' Do you-have any recollection of any,such meeting? Oh, yes, I, do. Q. Would you tell us what happened? A. In the first place, the meeting was at ,least a month after ,the election. Q. Let's forget about.that was there aay ,meeting,of the kind that Mr. Lundberg testified to, that occurred between March 27 and April 30 of 1970? A. No. Q. But such a meeting did occur, at,a later date you are telling us? A. Yes,sir. - I am unable ,to conclude that Ostrom thus intended-to deny the remarks attributed to ,him .by Lundberg. In any event, I would not credit such a dental, nor do I credit his recitation of the time. Q. You were in the courtroom this morning when Mr. Lundberg BELL MFG. DIV. DI GIORGIO LEISURE PRODUCTS, INC. 575 April 15 Soderstrom credibly related that in the middle of April in the plant yard, Ostrom advised Soderstrom,,that Ostrom was perturbed and requested Soderstrom to join him in Ostrom's pickup truck., Thereupon, Ostrom advised Soderstrom that'Ostrom had been advised, that Soderstrom was campaigning-,for the Union. Soderstrom denied such activity and asserted indifference, explaining his views of both pro- and con considerations.- Ostrom advised Soder- strom of cost problems, that he did not want a union and did not intend to- have one. Ostrom asserted if the employees, selected a union it would reflect on him and make it appear that he could not run the plant. Ostrom stated, that, if the employees wanted a union, he would sell the plant to the union and let them run it. Soderstrom further related that Ostrom then inquired whether Soderstrom was satisfied with his wages, to which inquiry Soderstrom related he responded that he was being paid union scale and-was satisfied. Ostrom called attention to the fact that the master freight agreement (of the Teasmsters) was then in negotiation, and he advised Soderstrom that whatever increase resulted from those negotiations, Ostrom would see that an equivalent increase was granted to Soderstrom' and Ellis, Respondent's truckdrivers. Ostrom advised Soderstrom that he would not tell Soderstrom'which way to vote but wanted Soderstrom to know Ostrom "would just as soon" have Soderstrom vote no.24 - April 30 Meeting It is undisputed that,'Ostrom addressed a meeting of Respondent's employees in the plant on the afternoon of April 30, the day before the election. There is no contention that this meeting was within the 24-hour period preceding the election. , - 24 Ostrom acknowledged having, a conversation at the time and place indicated by Soderstrom. According to Ostrom, Soderstrom inquired as to why the truckdrivers were not included in,the pay increases announced on, - March, 27. Ostrom asserted he responded that Soderstrom was being paid at a rate 'you yourself" [Soderstrom ] set less than 6 months previously, and that it would be reviewed at the proper time. Ostrom related Soderstrom' inquired as to when consideration would be given, to which he responded "at the proper time." Ostrom then was given a negative response to his inquiry' of whether Soderstrom was unhappy. The conversation was then concluded with a discussion of whether Soderstrom could obtain a new bolstrom seat for the truck. - Ostrom acknowledged the Union "could have been mentioned." He sought refuge°-in' the assertion that he advised Soderstrom and all other employees who -sought to discuss the Union with him that he would refuse to discuss it with anyone. Ostrom was self-contradictory in stating the reason for his conference with Soderstrom as follows: - Q. Now, just a moment,.we can-only get what occurred at the meeting. You tell us what you said and what he [Soderstrom] said. If we need further amplification we will go after it. A. O.K. I got Bob, I mean Bill, in the pickup and I said, "What are you doing on company property 'campaigning for, the Union?," and he said, "I am campaigning against the Umon, Rich," and I said, "I don't give a damn which way you are campaigning Bill, you have only got business to be on this property to get•your truck and go pick up your paycheck and go or to buy something. You are hired as a truckdnver,youu have been all over this plant talking to people," and he said, "Rich, I'm campaigning against the Union, I know you don't want it." I said, "Bill I don't care. That is your decision, that is everybody else's decision. I want you to quit trying to be my, pimp Bjork related that Ostrom spent i/2, hour advising the employees of Respondent's economic progress- or condi- tion. Ostrom then stated he would not threaten anyone, but did not know how he would react if the Union won the election. Ostrom asserted in such an eventuality he would "be, solely representing the stockholders. He Would not be representing us any more. We would be like machines. Machines do not -wear out; they don't get tired. He said there would be no growing up period, if you couldnot hack it, that would be it. He said there , would, be no buying through the company [discounts] any- more because there was. too much extra on the -bookkeeper." Ostrom.: also advised that if the Union won the employees would be required to take physical examinations, and at least two, Jack Rector and Lyle Moore, might not 'be able to work because they could not pass. - Garfield partially corroborated and supplemented, the recitation of Bjork. Garfield credibly related that Ostrom advised the employees that-if the Union won therewould be no more buying wholesale, no more taking"tools` out of the shop, no more working on private vehicles or private projects at the shop, and the key to the shop after work hours" would not be available as it'liad been before. Ostrom also advised the employees, if 100 percent so desired,,,the Respondent, would take the amount being paid for insurance, $45.00 a month, and add it to each paycheck in lieu of such insurance. Garfield also related that Ostrom advised that if the plant went Union and Respondent, started losing money he would shut down in the-best interest of-,the"stockholders, while if it did not go Union he would try to-keep the plant open all winter, as he had done-in-thepast 25 Lundberg related that Ostrom advised if the plant went union, he would go' with a_ smaller crew, and by closing' the plant in thewinter-he could avoid holiday pay.26 because I don't like you and I don't like that." I said, "Now get, out of my truck, I've got to go before I fire"you," and he got out of my pickup and I drove away. Q. Was there anything else said? A. No. Q. Was anything said about waiting for the International Teamsters over the road freight, or something like that, ,contract to be settled? A. No. Q. How long did this conversation take place you just related? A. Not very long because I was holding the clutch down and she was in gear. Q. You mean your car motor, your pickup motor was running at the time all this occurred? A. Yes, I had it in gear and the clutch down and ,I don't hold it in clutch very long. ' 25 I find it unnecessary. to detail the corroboration of Bork and Garfield, relative to -the; above, by Ingram, Lundberg, Terry H. Westphal, and,Charles Johnson, each of whom I find credible. 26 Ostrom's version of the April 30 meeting was that it lastedabout 1- 1/4 hours, he advised orders were flowing in and he did not anticipate any need for a layoff or reduction, of workweek. He discussed the importance of quality control. Ostronasserted he advised the employee's they=,could voteas they wished, but if the Union won he`wanted them to be ready 3with their demands and not play "cat and mouse." He related he then went into "a rather lengthy dissertation as a guideline for these people,- things to think about, for them to start writing down, and I listed everything as I could that I had_preparedmyself for-." Ostrom amplified, "I told-them they are everything in this plant, everything that you as an employee get or receive by being employees here is negotiable. There is,no such thing as a (Continued) 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Refusal to Bargain Appropriate .Unit-Union's Majority Status ,it, is undisputed that the Regional Director, in Case 19-RC-5356, on ` April' 15 approved an Agreement for Consent Election which provided, inter alia, that specified employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I find accordingly. The unit is: 'All, employees employed by the employer at its camper' and trailer manufacturing business located at Kalispell, Montana, excluding salesmen, servicemen, office clerical employees, guards and supervisors as defined in the Act. I have found, supra, under Background, that 48 employees were in the unit described , on March 25 and March ,30, and that this number was reduced to 46, on May 1, I have found that at all times after the meeting of March 25 the Union had in its possession a minimum of 28 authorization , cards signed by employees in said unit designating the union as representative for the purpose of collective bargaining. On March 27, Union Business Representative Leonard I. Disbrow advised Respondent, by letter addressed to Mulford, that the Union represented Respondent's pro- ductionemployees and truckdrivers and requested a meeting for the purpose: of negotiations . In the words of Ostrom, when he received the Union letter on March 30, "I went seeking this man who was displacing me."' Ostrom. and Disbrow have known each other for 10 or more years. They met at Disbrow's'office and proceeded to a coffee shop. Disbrow credibly, related that Ostrom advised him that the Union was something Respondent could live with, God given right in this plant or any other place of employment." In'the light of the 'inability of General Counsel's witnesses to recall any such premise that that items were negotiable having been stated as a predicate by Ostrom, I find it, at best, an afterthought which did not in fact occur. Ostrom- acknowledged enumerating each of the existing conditions referred to by General Counsel's witnesses. Ostrom acknowledged Makin reference to the existence of physical examinations in organized plants, and asserting conditions under which the two identified employees might not retain employment. , Any question about the thoughts Ostrom conveyed to the employees appears resolved in this recitation, "I also, then went into things that I could do if I had one sole purpose, and that was to maximize profit and that was to forget about the human element, bringing in, the machine thing which people have been talking about for the last two days. I would have no personal concern. I could then operate then like the typical , almost universal, way that all trailer plants operate . When, in the fall, the sales go down I would shut the thing down , if I operated it this way. I would then avoid paying their health insurance programs, or could avoid it. I could avoid paying Thanksgiving, Christmas and New Years. I could avoid paying high interest on large, accumulated, inventories." Ostrom related he then called the employees' attention to the, fact that since 1-963 -Respondent had been the first and only trailer'plant =iii the nation to operate "at normal, considerate,tullcapacity, on a yeal' around-basis." While Ostrom denied advising the employees on April 30 that he would close -the plant if the Union won , he acknowledged -saying, "Good union men do ,not works without a contract . I don't believe I haveto work without a contract.", He then acknowledged, saying he would not run the plant without a union contract. I' credit''Ostrom only to the extent his testimony is not at variance with the credited testimony of General Counsel's witnesses, set forth supra. In so finding; I-am not unmindful of the corroboration of Ostrom by Severson, service manager, and the proffer of corroboration by others. Disbrow, upon inquiry, was advised by Ostrom that he was not adverse to a checkoff, conditioned upon employee approval. Ostrom presented the existing wage schedule, and advised Disbrow that .Ostrom' thought it was as much as Respondent could pay. When^,Disbrow, inquired, if the, schedule was ar proposal,- Ostrom advised the employees had already received copies of the schedule. Disbrow was` advised by Ostrom of the $40 a month average for health and welfare. Disbrow responded'` that, if the employees were satisfied, he ^wasnot going to insist upon the` Teamsters' health and welfare plan. - During this 'meeting, - a, rough computation of the cost ' of health and welfare was made' resulting in a figure of 21.5 cents per hour per employee. Likewise, the -average hourly- pay was determined to be $195. Ostrom mentioned that he`was utilizing two students whom he desired to ` exclude from ' thebargaining' ,unit Disbrow indicated' a` willingness to accede to'the stated limit; on a 'part-time basis; Disbrow inquired about starting rates andprogressionforniew employees.Ostroinsuggested` $2.75 per hour for thirty, days, $2.90' per hour' for the following' 6 months, then a journeyman rate of„ $3,.00 per hour. 'Disbrow mentioned a pension plan,' `to which' Ostrom responded they could 'not possibly add 5 cents per hour for such a plan. Disbrow advised this would be an important item. According- to Disbrow they parted congenially. Ostrom had advised that one of Respondent's, other plants had a contract with Teamsters.1'he meeting lasted about I-1%2 hours. Ostrom indicated a willingness to, increase each of the truckdrivers 1 cent per mile. At the termination, Disbrow, indicated a ;willingness to report to the employees and obtain their reaction.27 On, the evening of March 30, _Disbrow advised some 25 employees, at a meeting he called, of,his, negotiations with 27 Ostrom's version of this meeting is at substantial variance and not credited'; Ostrom asserted he inquired, "What right have,you got telling me I can't run my own business, that I can't change wages, whothe hell are you?" An obvious reference to the request in the Union letter of March -27, that Respondent refrain from changing wages or working- conditions pending negotiations. Ostrom asserted' Disbrow suggested' that Ostrom consult an attorney. Ostrom "thought'^-Disbrow mentioned ' having' some cards. -Ostrom inquired as to 'how `many, and" Disbrow responded "enough.."' Ostrom then asked to see "there, and Disbrow responded he could not do it This was the entire conversation about cards. Disbrow denied any request for cards- was 'made by 'Ostrom. I 'credit Disbrow. Ostrom's perception in the field of labor relations , appears to be of unfermented vintage. Ostrom asserted he inquired what Disbrow was going to do ."for" Respondent. Ostrom related be spend- 1-1/2 hours "going over, with Leonard what our, pay scale was, my theory of management, the fringe benefits we have, the turmoil and the trialswe have suffered in making this plant a year-round place to work' Ostrom asserted he gave. Disbrow an education about the trailer industry. Ostrom denied engaging in negotiations . However`, he`asserted that when Disbrow advised him, "we are not going to have any problems," he gave Disbrow a copy of the pay scale distributed=to the employees on March 27. Disbrow then inquired if the employees had-seen the schedule and was advised they had. Ostrom asserted he related that Respondent was paying the highest wages ,in the industry and there was no room for improvement without increased production. Ostrom-concluded,'"after, a certain amount of time I came to the conclusion Leonard could not give me anything." He asserted he so advised Disbrow and left. ' Ostrom - denied any mention being made by Disbrow of checkoff. He related he advised Disbrow that Respondent has'two plants which have contracts with the Carpenters' Union, not the-Teamsters. I find the recitation of Ostrom self-contradictory, unimpressive, and incredible. BELL MPG. DIV. DI GIORGIO LEISURE PRODUCTS, INC. 577 Ostrom and, of the need to select a negotiating committee. Soderstrom, Frank Westphal, and Ingram were elected. Ostrom acknowledged that following his meeting with Disbrow on March 30 he, was, advised by Respondent's personnel director., "Do not-fire anybody. Do not mess with the pay and get an attorney if you think you need one:' Asked when he first, communicated to the Union the fact that he was going to insist upon an election, Ostrom- responded, "If it was not at the meeting Leonard and I had, [March 30], it was in the telephone can two or three days later when I told ,him to get his track shoes on, we were going to.take off. I'm campaigning get with it." Ostrom then acknowledged his first notice, to anyone of his change of mind relative to the Union was when he, had so advised Frank Westphal on the morning of March 3l 28 The Union filed the petition for election on April 1. No further negotiations have ensued. Concluding Findings 29 (a) Interference,. Restraint, and Coercion I have found, supra, as alleged in the Complaint, as, amended, that: (a) on March 21 General Manager Mulford advised Frank Westphal that anyone who talked union in the plant would be discharged; (b) on March 26 Production Manager Kerzman interrogated Terry H. Westphal relative to his union sympathies "and interest; (c) on March 30 Foreman Nielsen threatened Bjork withhloss of his privilege of time off to attend cow sales if the' Union won `the election; (d) on. April 3 Foreman' Patterson interrogated Bjork relative to his attendance at a union meeting and thereafter advised Bjork that Ostrom had stated that, if the Union won the election,'Ostrom would shut the plant down and could ' move it elsewhere; (e) in mid-April Patterson advised. Ingram, in" the presence of `other employees, that, if the Unioi'won the election, he had been advised the plant would be shut down for 60'to 90 days; (f) on March-27 ata meeting of employees in the plant, Vice President Ostrom advised - the employees of his knowledge of their Union activities' and that (1)'he intended to bring in a trailer union and (2) announced a wage increase varying from5 cents to 25 cents peri'hour for 35 of the 46 employees, without prior notice; 30 (g)'on April 4'Ostrom advised Frank Westphal of the discharge of Mulford, the obvious source of employee ,^. dissatisfaction; (h)'betweeiMarch 27 and April30 Ostrom advised Lundberg that, if the Union came into the plant, Respondent might have to take inventory, slow down, go to shorter "working hours or a shorter working" year, and reduce the crew; (i) on April 15 during a lengthy discussion of the pending organizing 'effort, Ostrom promised Soderstrom any increase in the existing mileage rate that 28 Disbrow ' related that Westphal had, advised him that Ostrom had advised Westphal he 'wasnot going toilet the Union in. Thereupon Disbrow telephoned to Ostrom, 'wlio advised he had decided to fight. Disbrow obtained no response to'his inquiry, as to 'the`reason underlying Ostrom's change of mind. 29 At the outset of this case, following a practice I endeavor to insert in every record' where I preside, the parties were advised that my concept of a fair' hearing requires that Respondent be advised of"the nature of allegations of misconduct, by pleading, and"that all amendments be made at the outset of the case, relative to prior events ; accordingly, findings from the recitation of witnesses, set forth, supra, which, if alleged, might resulted from the Teamsters over-the-road contract negotiations; and (j) on April30, at a meeting of employees held in the, plant the day before the election, Ostrom (1) threatened employees with reprisals, and loss of existing benefits if the Union won the election, (2) advised employees they would be treated as machines,, (3) advised that physical examinations would,be required, resulting in possible loss of jobs, (4) threatened loss of fringe benefits of wholesale purchasing, repair of personal cars, and use of plant tools and equipment, (5) threatened, plant closure during negotiations, and (6) threatened reduction of workweek, or shorter work year with winter closedown, and loss of holiday pay. In the Blue Flash case,31 the Board found interrogation was not unlawful where legitimate reason. for inquiry existed and appropriate safeguards were taken. The Board held, that the test is whether, under all, the circumstances, interrogation reasonably tends to restrain or interfere with the employees in the -exercise of rights guaranteed by the Act. In Johnnie's Poultry, 32 the Board further elaborated, stating that it and the courts found two areas which . permitted legitimate interrogation; i.e.,' verification of ' a union's claim`to majority status, and investigation of facts concerning issues raised in a complaint, where such interrogation is necesaary in preparing the employer's defense for the trial of a case. In each instance, however, enumerated safeguards must be taken. There is no evidence herein of the existence of either of the conditions outlined by, the, Board in Johnnie's Poultry, nor were the safeguards enumerated therein taken. It follows,,and I find, that the interrogation I have found, supra was coercive, and thus violative of the provisions of Section 8(a)(1) of the Act. Numerous Board and court decisions have uniformly held that threats,' i.e., discharge, of an employee for engaging in union activity, loss of existing fringe benefits if a Union campaign is successful, reduction. of worktime_ or benefits, plant closurelor removal and' inferential-job Ioss, etc., or the promise or granting-of benefits„such as wage increases-for the purpose of interfering with the employ- ees' right to exercise, the privileges granted under Section 7 of the` Act is coercive conduct violative of the proscrip- tions of Section 8(a)(1) of the Act. The decision of the Supreme Court inExchange Parts 33 appears apropos: - The broad purpose of Section 8(aXI) is-to establish "the right of employees to organize for mutual aid without employer interference" `[citation 'omittedi. We have no doubts that it prohibits not, only 'intrusive threats and promises but also conduct immediately favorable to employees which is undertaken- with- the express constitute conduct violative of Section 8(axi) are considered solely as background if not alleged. I question that any Respondent is on notice to defend against matters not alleged, in view of my stated caution. In my view, no matter thus inserted could be found to be "fully litigated." Electronic Research Ca, 187 NLRB No. 100. 30 Respondent's motion to dismiss the allegation of paragraph 12(c), that Ostrom interrogated employees'on March ' 27, is granted. There is no evidence of such interrogation. - 31. Blue Flash Exj fes; Inc., 109 NLRB 591. re Johnnie's Poultry Company, 146 NLRB 770, 775. 33 N.L.R.B. v. Exchange Party Company, 375 U.S. 405, 409. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of impinging upon their freedom of choice for or against' unionization and is reasonably calculated to have that, effect. In Medo Photo Supply Corporation v. NLRB., 321; U.S. '678, 686, this Court -said:, "The action of employees with respect to the choice of their -bargaining; agents maybe` induced by favors bestowed by the 'e oyer 'as ° well as by his threats or domination."' Although in that case there was already a designated 'bargaining agent, and the offer of "favors" was in'response to°a suggestion of the employees that they would leave the Union if favors were' bestowed," the principles which' dictated the result -'t'here are fully applicable here. The danger inherent in well-timed increases in°be_ nefits is" tle suggestion of.`a fist inside the velvet glove. Employees are not' likely to miss the inference that the source of benefits now conferred is also'the',sourc-eti`from _which `futare benefits must flow which may'dry rip if it is-not"obliged. Accordingly, for the reasons stated, I find that each act of interrogation, ithreat of loss of existing fringe benefit or other, existing term or condition of employment, " and the granting of'pay increases asannounced on,March 27, and promises of, ,pay increases, as specifically found herein, constituted conduct in derogation of provisions of Section 8(4l') of the Act.' (b) Refusal to Bargain . ` Respondent's effort to litigate the appropriateness of the' unit at this late date -a must , be summarily ' rejected. Respondent waived, its right to litigate such-matters as were, agreed upon by its entering into an agreement for consent election. Even had the unit question been litigated, it could` not be " relitigated when no claim of newly discovered noncumulative evidence has been presented.34 The complaint alleges, and the undisputed ' 'evidence establishes, that tlie 'Union, by letter dated March 27 and received by` Respondent on `March 30, requested recogni- tion 'and bargaining. Respondent, by answer, admits that it has refused'to recognize and bargain with the Union as the exclusive collective-bargaining representative of, any of its employees. It is undisputed that on 'M'arch 30 `Ostrom went to the union office and 'he and Disbrow spent 1 -1/2° hours, discussing, Respondent's employee wages and working conditions. The effort, of. bOstrom. to characterize , this meeting as, "he was simply ,try ing , to,,find out, where the Union would be of any value to him"onto his employees, and concluded that the Union should spend its, time organizing other ;firms in this-:same industry, who were competitors and paid wages, hours and working conditions substantially less than those paid'by [Respondenfl," might bd-termed preposterous,' However, to, the contrary, it is but an indicia of Ostrom's complete failure to comprehend that, 94 Cf - Magnesium Casting Company -v. N.L.RB., 401 U.S. 137, (February 23, 1971), citing Pittsburgh Plate Glass Company , v., N.LRB., 313 U.S. 146, 162. 35 Citing: Stayer's Johnsonville Meats., Inc., 179 ,NLRB ,887; 2520 Madison Corporation, d/b/a/ Lillian Abrahamson Nursing Hone, 181 NLRB 910; and Tower Enterprises, Inc.; d/b/a/-Tower Records, 182 WLRB=382. 36 N.L.R.B. v. Gissel Packing Company, 395 U.S. 575 (1969). Respondent's: employees were vested' with specific rights under Section 7 of the Act. Respondent's denial that the conduct of Ostrom on March 30 constituted recognition and negotiation is at, variance with the facts, even though of minor consequence herein. The record establishes, as I have found, that the Union at all pertinent times was' in possession of at least 28 valid authorization cards in a unit' initially comprised' of 48' employees and later of 46 employees. Ostrom's effort to reflect sufficient perceptiveness or" knowledge by his feigned inquiry as to the number` of authorization cards held'by'the Union and-his request to view them; in the light' of the facts `established in this record as to his other conduct, is incomprehensible and incredible. General -Counsel accurately'urges in his' brief that the Respondent withdrew recognition and then ' engaged in' conduct of such outrageous, and pervasive nature as to in fact destroy the Union's majority-andrender the conduct of an election impossible.35 In the light of the Supreme Court's decision in Gissel, 36 it is now established that any employer's good- or bad-faith doubt that a union represents, a, majority of the employees, at the time of its request for recognition is largely irrelevant, the' criteria instead being whether or not the Union in fact represented a majority of the employees and whether the employer engaged in substantial unfair labor practices, making. holding'of a fair election impossible or unlikely. Here the record establishes beyond doubt that the Union at , all times `at,` find after, its request in fact represented a substantial majority of the employees in the appropriate " unit. As' a=result_of the Supreme Court's decision in Gissel, it must now be considered settled Law that'the majority status of a union' may be, sestabished by methods other 'than certification by the Board , after an election, including the securing of _ thex,majority_ of unambiguous' authorization. cards. Under the Board's „ subsequent explications of Gissel,37 itis,:well settled that where, an employer rejects a bargaining demand based upon unambiguous authorize' tion ,cards - and then ,engages , in substantial -unfair, labor practices, the, Board, is authorized to issue a bargaining order, both when the employer has engaged in unfair labor practices "so coercive that, even in the absence of a Secti=on 8(a)(5) violation, a,, bargaining, , order ,would hive, been necssary to repair the unlawful effect of, those [unfair labor practices ]," and, as the Court further stated: "in less extraordinary - cases marked by less ;pervasive practices which nonetheless still have a tendency 'to undermine majority strength and impede the election process." In the latter situation, in the words of the Court: " If, the Board finds that the possibility of erasing the effects of past practices and of insuring a fairnelection (or a fair'"rerun) by the use of traditional' remedies, though present, is slight and that employee sentiment once expressed , through cards" would, on balance, be 37 Eg. Great Plains Steel Corporation, 183 NLRB No. 96 (1970); Martin Electronics, Inc., 183 NLRB No. 4 (1970); Central Soya of Canton, Inc., 180 NLRB 546 (1969); Heck's' Inc., 180 NLRB 430 (1969); W.T. Grant Company, 180, NLRB 400,(1969); 77ie ,Rrescome Distributors Corporatioq, 179.„ NLRB 787 (1969); and Garland, Knitting Mills of Beaufort, South Carolina, Inc, 1,78 NLRB 396 (1969). BELL MFG. DIY. DI GIORGIO LEISURE PRODUCTS, INC. better protected by a bargaining order then such an order should issue. Here, -having suggested that the Union resort to the Board's election process, instead of awaiting the outcome of the election Respondent embarked upon the course of conduct found , above, including coercive interrogation, threats, and promises; which -I have found in each instance to constitute an unfair labor practice. Accordingly, I conclude and find that, as a result of -these unfair laborpractices,'the possibility of erasing their effects and of insuring a fair election is slight, and the employees' sentiment, once expressed through cards , would on balance be better protected by a bargaining order. I find Respondent's refusal to bargain in these circumstances to be in violation of the provisions of Section 8(aX5) and (1) of the Act. Objections to the Conduct Affecting the Results of the Election I have found the conduct asserted by the Union to be a basis for vacating the results of the election, i.e., the granting of wage increases, threats to close the plant, and refusal to bargain, in each instance constituted an unfair labor practice.- My Order herein obviates the need for further consideration of these objections., I shall -therefore recommend that Case 19-RC-5356 be severed and remanded to,the Regional Director for Region 19, with instructions ,that the election held-on May 1, 1970, be vacated .and set aside and the petition in said case be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The ,activities.of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent 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. V. THE REMEDY Having found that the Respondent has engaged, and is engaging, in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended ,that Respondent, upon request, recognize and-bargain collectively with Teamsters, Chauf- feurs, Warehousemen and Helpers Union, Local No. 448, International '-Brotherhood, of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of all employees in the unit herein found to be appropriate for the purpose of collective bargaining, with respect to rates of ° pay, wages, hours of employment, and other conditions of employment, and, if 38 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, recommendations and Recommended Order herein 579 an understanding- is reached,, upon request, embody such understanding in a signed agreement. It, is further recommended that Respondent be ordered cease and, desist from in any like-, or related , manner infringing ' upon rights guaranteed , to, its employees by Section-7-of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF -LAW 1. Respondent is an `employer engaged in commerce within the meaning of Section 2(2),'(6),` and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local , No. 448, International ' Brotherhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America, Independent, ' is ' a labor organization within the meaning of Section 2(5) of the Act,' 3. All` employees employed` by -Respondent at its camper and trailer manufacturing •'business-.' located -at Kalispell, Montana, excluding salesmen, service men,'office clerical , employees, guards `and supervisors; -as defined in the Act, constitute a unit appropriate for the,purposes of collective bargaining within the meaning of Section 9(b) of the-Act. ,4. The Union has been the exclusiver-epresentative of all employees in the 'aforesaid unit for the purpose -of collective bargaining within -the meaning of Section 9(a)'of the Act, since March 25,1970. - ` 5. By failing and refusing to meet and bargain with the Union in good faith on and after-March-31 , 1970, as:'the exclusive collective-bargaining representative 'of the em- ployees, in an appropriate unit, described herein, with respect to rates of pay, wages,:hours_of employment,, and other terms and conditions- of employment, Respondent has engaged, and is engaging,, in unfair labor^,practices within the meaning of Section ,8(a)(5.), of. the Act,, and has thus interfered with, restrained, and coerced employees in the exercise of rights guaranteed, in Section 7,of the Act, and has thus engaged, and is , engaging,,,in- unfair labor practices within-the meaning of Section-8(a)(l) ofthe Act., 6. By engaging --in the conduct set forth ,_inthe ,Section entitled;: ``Interference, Restraint,- and Coercion," to, the extent therein found, Respondent has engaged, and is engaging, in- unfair labor practices within -the-meaning, of Section 8(a)(1)of the Act. , 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the,meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER38 On the basis of the foregoing findings of fact and, conclusions of law, and upon the entire record inthe case, and pursuan `t to Section 10(c) of the ,Act, as amended, I recommend that the Respondent, Bell, Manufacturing Division, Di Giorgio 'Leisure Products. Inc., its ,_ agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: 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. 580 DECISIONS OF` NATIONAL LABOR RELATIONS BOARD (a) Failing and -refusing to 'bargain collectively in good faith with Teamsters , 'Chauffeurs, Warehousemen and Helpers Union, Local No. 448 International Brotherhood of-Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining repre- sentative, of all its employees constituting the unit herein found to be - ,e -, appropriate for the purposes of collective bargaining. - ' (b) Interrogating employees in a manner violative of the provisions of Section 8(aXI) of the Act. (c) Providing or promising employees wage increases as an inducement^to, refrain from becoming or remaining a member of .a union or giving assistance or support to it, or threatening employees with economic retaliation, including modification of fringe benefits or other existing terms or conditions of employment, including but not limited to threats of discharge, elimination of time off for personal business, plant;,,,shutdown, shorter working hours or workweek or work , years, reduction of crew complement, introduction of physical examinations,,v discontinuance of wholesale, purchasing, or use of plant tools'or equipment, etc., all violative of the proscriptions of Section 8(a)(1) of the Act. (d) In any like or related manner interfering with, restraining, or coercing its employees, in the exercise of the right to self-organization, to form labor organizations, to join -or assist the above-named . Union or any other labor organization, to bargain collectively through, representa- tives, of. their- own choosing, and to engage in, any-, other concerted activity for the purpose of collective bargaining or-other mutual aid or protection, or torrefrain from any and all such ,activities,.except to the extent that such right may be affected by-an agreement requiringmembeiship in a labor ,organization as a condition of employment, as authorized rin' Section 8(aX3) of the Act, as-modified by the Labor-Management Reporting and Disclosure Act of 1959, 2. Take the .following affirmative action designed to effectuate the policies of the Act: (a) Upon request, 'bargain collectively with Teamsters, Chauffeurs Warehousemen and Helpers Union, Local No. 448;` International Brotherhood of Teamsters, Chauffeurs, Warehousemen`and Helpers of America, Independent, as the exclusive representative of all the employees in the aforesaid- appropriate - unit and, if , an understanding is reached, upon request, embody such ,understanding in a signed agreement: (b) Post atits plant in Kalispell, Montana, copies of the notice attached hereto marked "Appendix A."39 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 the Respon- dent and maintained by_ it ' -for 60 consecutive days thereafter, in conspicuous places, including all places where' notices to employees-are customarily posted. Reasonable steps shall be taken by Respondent' to insure, that said notices are not altered, deface`d', or covered by'any other material. Notify the -Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Trial-Examiner's Decision,-what ,steps the Respondent has taken to comply with ,the foregoing Recommended Order.40 IT Is FURTHER RECOMMENDED -that Case 19-RC-5356 be severed , and,returnedto the Regional Director for Region 19, with instructions to vacate and set'aside the election of May 1, 1970,- and to dismiss the petition for election in said case. IT Is FURTHER RECOMMENDED that 'the' allegations relative to interrogation by Ostrom in paragraph 12(c) of the complaint be, and they are°hereby, dismissed. , - 39, In', the, event that the Board's Order-is enforced by at Judgment of a United States Court of Appeals, the words nn=the notice reading' "Posted by order of the National Labor -kelatioi s'Board" shall'be-:cfia'n ged to read "Posted , pursuant to a judgment bf the , United ' Staten Court of : Appeals eaforcingan order of-the NationalLabor Relations Board." ao In the -event that this Recommended Order is adopted by, the Board, after exceptions have been filed , this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing, within 20 days from -the date of this Order, what steps `Respondent has taken to comply herewith." APPENDIX--A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR ` RELATIONS BOARD An Agency of the United States Government WE wULL, upon request, recognize and bargain-with Teamsters, Chauffeurs, ' Warehousemen , and Helpers Union, 'Local No. 448, International , Brotherhood of Teamsters, Chauffeurs, Warehousemen,& Helpers`-of America, Independent, as the exclusive representative of calf of the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if 'an understanding ,'is- reached, we will, upon request, 'embody such understanding in a signed contract. The bargaining unit is: All employees employed by- us at our camper and trailer manufacturing business ' Iodated at Kalis- pell Montana, excluding salesmen, service men, office clerical employees, guards and 'supervisors as defined in the Act. WE "WILL NOT interrogate employees iii a manner violative of the provisions of Section 8(a)(1) ofthe Act." WE WILL NOT provide or promise wage increases as an inducement to employees to refrain from becoming or remaining a member of a union or giving assistance or support to it, or threatening employees" with economic retaliation, including modification of fringe benefits, for other existing . `terms or conditions of employment'' including `but not ' limited `to, threats of discharge, elimination of time off for personal busine.,ss, plant shutdown, shorter working hours or workweek`or work.year, reduction of'crew complement, introduction of physical ' exa{ninations, discontinuance of wholesale purchasing, or the use of plant . tools'and equipment, etc., all violative of the proscriptions of Section -8(a)(L) of the Act, WE WILL NOT in any like or related manner interfere with, or restrain, or coerce, our, employees rin ,''the exercise of the right to self-organization, to form labor organizations, to join or. assist the above-named Union or any other, labor 'organizati'on, to bargain collectively through' representatives of theii"own choosing; and't'o' BELL MFG. DIV. DI GIORGIO LEISURE PRODUCTS, INC. 581 engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection,- or to refrain-from any and all such activities, except to the extent thatsuch right might be affected by an agreement requiring membership in a labor organ zation as a -condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management-Reporting and Disclosure Act of 1959: All our employees are free to become, or remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization. Dated By (Representative) - (Title) This 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, 1511 Third Avenue, Republic Building, Seattle, Washington 98101, Telephone 583-4532. BELL MANUFACTURING DIvISIoN, Di GIORGIo LESIURE PRODUCTS, INC. (Employer)