Pure Chem Corp.

PURE CHEM CORP. 681 Pure Chem Corporation and General Truck Drivers & Helpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America Pure Chem Corporation and General Truck Drivers & Helpers Local No. -315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen ,& Help- ers of America, Petitioner.Cases 2,0-CA-5942 and 20-RC-9035. August 17, 1971 DECISION AND ORDER On December 29, 1970, 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 also found that Respondent had not engaged in certain other unfair labor practices and recommended that the allegation pertaining thereto be dismissed. The Trial Examiner further recommended that the representa- tion petition be dismissed and that all proceeding held in connection therewith be vacated., Thereafter, the Respondent filed exceptions to the-Trial Examiner's Decision with supporting brief, and the General Counsel filed cross-exceptions and a brief in support thereof. The Board has reviwed the rulings of the Trial Examiner made at the hearing and, finds for the reasons set forth below that no prejudicial error was committed. The ruling 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 Trial Examiner's findings,' conclusions, and recommendations. The Trial Examiner found, and we agree, that Respondent committed various violations of Section 8(a)(1) of the Act by making certain plant improve- ments, engaging-in interrogation, promising benefits, threatening plant closure, and threatening to remove employee benefits if the Union won the election. We also agree with the Trial Examiner's 8(a)(5) finding and the issuance of a bargaining order. Our dissenting colleague would refuse to set aside the election because Petitioner's objection to the election was overruled, and he would also dismiss the r While the Trial Examiner's findings with respect to the polling of employees do not so state, the record establishes that the polling did not satisfy the preconditions to lawful polling enunciated in Struksnes Construction Co., Inc., 165 NLRB 1062. 2 149 NLRB 627. 3 Morris Novelty Co., Inc., 157 NLRB 1471, 1484, enforcement denied on other grounds 378 F.2d 1000 (C.A. 8, 1967). (Emphasis in original.) 192 NLRB No. 88 8(a)(5) allegation., We disagree. Although the election was set aside as a result of the Regional Director's postelection investigation rather than upon the specific grounds urged in the objections filed by -the Union, the Irving Air Chute2 requirements are satisfied where we do not have the results of a "valid" election.3 "It should be clear ... that the Board in its responsibility to determine whether a fair and conclusive election was held, may -consider relevant evidence disclosed in its investigation, independent of whether the conduct is raised in formal objections." 4 It is well settled, therefore, that the Board- may properly consider evidence discovered during a postelection investigation,5 and that such evidence alone may be used to set aside an election s The Board has held that, as in-the instant case, an election may be set aside and a bargaining order issued where objections to the election were found to be without merit, but where the employer had engaged in various unfair labor, practices which were discovered during the postelection investigation.? In this case, the complaint contained specific allegations of unlawful conduct which occurred during the critical period. To allow Respondent to avoid the ramifications of this conduct simply because the Petitioner failed to frame the scope of such conduct within his objections would frustrate the rights of employees which are of paramount importance. The dissent also states that the requirements of due process have not been satisfied because- the `Trial Examiner did not give Respondent's counsel an adequate opportunity to prepare his defense in light of the amendments offered at the hearing. Yet, the Trial Examiner did, in fact, offer to postpone these proceedings. The record shows that Respondent was informed by telegram on June 3 of certain amend- ments to the complaint which would be offered at the hearing. At the commencement of the hearing on June 9, the General Counsel moved to amend the complaint by adding five of these amendments and two additional amendments of which Respondent had no notice. Following the motion, Respondent requested a 1-month continuance in order to prepare its defense. The General Counsel did not object to a continuance but preferred to' have the hearing delayed, if necessary, only a few days. The Trial Examiner then denied Respondent's motion for a 1- month continuance, but offered- to postpone the hearing until the following week so that Respondent would have at least 10 days' notice from the date he 4 Fasco Industries, Inc., 173 NLRB No. 85, TXD, fn. 54. 5 N.LR.B. v. Realist, Inc., 328 F.2d 840 (C.A. 7, 1964). 6 National Electric Coil Div. McGraw-Edison Company, 184 NLRB No. 95; Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706, and cases cited therein. I Dawson Metal Products, Inc., 183 NLRB No. 25. See also NLRB. v. Gissel Packing Company, 395 U.S. 575, fn. 34. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received the .General Counsel's telegram. Respon- dent's attorney declined this offer because of other commitments. The , Trial Examiner also advised Respondent that it ` could renew its request for, a continuance, at the conclusion of the General Coun- sel's case if it still felt that it had not had an adequate opportunity to prepare its defense, but Respondent did not renew its request at that time. As the Respondent did not have any notice as to amendments (1) and (J), a threat, of plant closure and a threat to remove employee benefits, respectively, we do, not, in the circumstances of this case, rely on any of the testimony as to amendments (1) and (J) and those allegations are, accordingly, dismissed. With, regard, to ;the other amendments, the question of whether a continuance is to be granted is a matter within the discretion of the Trial Examiner, and we cannot say that he abused his discretion in this case in light of the fact that Respondent had sufficient notice of these amendments, including the specific nature thereof, that it was offered a continuance until the following week, and that it was given an opportunity to renew its request. - for a continuance at the conclusion of the General Counsel's case. in, considering. the entire record, with the exception of the evidence ^ introduced in support of amendments (I) and (J), we find that Respondent has violated Section 8(a)(5) and (1) of the Act, has engaged in other, 8(a)(1),conduct, and that a bargaining order is appropriate. For these reasons we adopt the findings and conclusion of the Trial Examiner. 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, Pure Chem Corporation, Richmond, California, its officers, agents, successors, and assigns, shall take the affirmative action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that all allegations of the complaint not -specifically found to be violations of the Act be,,and they hereby are, dismissed. MEMBER KENNEDY, dissenting: Contrary to my colleagues, (1) I would dismiss the 8(a)(5) allegation because meritorious objections, were not filed; and (2) I would remand the $(a)(1) allegations of the complaint for a new hearing because I do not believe the requirements of due process have been satisfied. The, Trial Examiner ruled that the election herein should be, vacated and set aside even though he overruled the Petitioner's objections. Since I believe his overruling of the objections was proper, it necessarily follows that I, think. he -was in error_ in setting aside the election. The sole basis of the objections. filed by the Petitioner was a three-page letter, dated December 8, 1969, which reads as follows: We have been a struggling company, that has tried to make,a success. Now,, with Dart Industries behind us there should bea wonderful future. You have an absolute right to know what your part in this future will be as we see it. First, the future of the job security of each of you that does his or her job is good. We are not going to discharge,a person because they backed a union. You have a right to ask what kind of financial future you are going to have if you stay non-union. We are, restricted by law as, to what we can tell, you during a union organizing campaign: We : can lawfully tell you the things;that, are in existence. You may choose to share ; in our Profit Sharing Plan which is known as oneof-the finest programs for working people. If you stay with the company and develop, as we are- sure that you will,, you should have much - more money , in this, plan compared with any Teamster plan., You get to take all or part of, this,,money with-you after the, very first year that you are in the plan. UnderTeamster plans you would, in most cases, forfeit all that, had been put into it for you,if you leave while you are young. The Teamsters are not very important ,in the chemical, industry. If you, wish to progress, then in my `judgment, , you, are better to leave ,them alone and stay in the chemical industry, whether with us or with other companies.This is a highly specialized and skilled industry. This is -an industry which pays well when plants are running, producing and profitable. I, I This last month we made some 1-7,000 pounds of product. Hopefully, this month we will break that record and move up to over 25;000 pounds. This comes as a result of better team work; comes as a result of your, efforts, comes as the result of improved equipment and, approaches. This will mean for the very first time that we,can expect to break even and perhaps begin! to 'make money. When a plant, is making money things always improve as far as morale, as far as friendliness, and as far as spirit--ofterimorethings improve too. Our, policy is to pay fairly. By fairly we mean,in accordance with the'standards of the community and similarly `situated plaints in the community. I have been planning a, review of our wage structure. We should re-examine the relationship, between the wages of our various groupsof employees, We should re-examine the fairness ' of our classifica- PURE CHEM CORP. tions to see if there need to be more or fewer classifications. We should take another look at the time it takes to reach the top rates. We should look at those top rates. You have a right to ask whether we would give a raise if the Teamsters get in. No one can say. I would expect that you will get just as much non- union-asyou would union. There are many reasons why with a good, modern, soundly managed company the non-union life.is better. A.fewreasons are: 1. You don't have to pay dues. 2. You don't have to attend union meetings. 3. You don't get pulled into strikes over other peoples' problems. - 4. You don't have to pay initiation fees. 5. Most important, you can often more easily be a partner with your company if you are non- union. You, have a right to ask, "Would the company take a strike with a union as powerful as the Teamsters." The Chemical Division over its lifetime hashadifournegotiations.*,All these unions are gone from our plants now. There have been three strikes out of the four negotiations. One of these was the Teamsters. We did have a seven week strike with 'them. Do not take this to say that the company would cause a strike. We would try not to. A strike would come (if it came) if the union tried to push us into an area which we regard- as being unsound for our company. ` We are beginning to put together the kind of team that can accomplish great things here., Each and everyone of you is an important, even an essential, part of the team. I think that you should give this team a chance to function without any interference from the outside. I think that you will find that what we have here with a little bit of success is something that you can be very proud of. We still have a long way to go. We still have a lot of work. We still expect- to make-major mistakes. We do hope to manage better than we have ever managed before. I personally pledge that I will take a deep and continuing interest in what is happening in the plant and in, the laboratory By doing this, if I do my job and you do yours, I am sure it will be better than if we have the Teamsters. You have an absolute right to vote your own wishes. Be sure to vote. Be sure to regard this vote as one of the most important in your life because you spend a lot` of time in this plant. Your future and the plant life here will be affected by this vote. It can't possibly be'the same here if there is a union. The union would say that the change would be for the better. I don't think so. 683 I consider it a personal favor if each and everyone of you cast your secret ballot on the "no" side. I believe with all my-heart-that this is really a vote for yourselves, -a vote . for your . fellow employees, a vote for your company and a vote for me. *We don't count joint ventures. I agree with the Trial Examiner's conclusion- that the letter does not support a, finding of either a promise of benefit or a threat-of-economic detriment, and that the objections were properly overruled. It therefore follows, under the Board's policy enunciat- ed in Irving Air Chute Company, Inc., 149-NLRB 627, that we are obliged to dismiss the 8(a)(5) allegation of the complaint. The Board in Irving-- Air Chute at 629-630 stated: This case falls within our -decision in Bernel Foam Products Co., Inc., 146 NLRB 1277. We held in that case that a labor-organization which loses an election may nevertheless seek bargaining relief under Section 8(a)(5) of the Act or Section 8(a)(1) in appropriate circumstances, where- it appears that the employer has engaged in conduct requir- ing the election to' be set.aside. We will not grant such relief, however, unless the election be -set aside upon, meritorious objections filed in the representation case. Were the election not set aside on the basis of objections in the present representation case, we would not now direct a bargaining order even though the, unfair labor- practice phase of this proceeding itself established the employer's interfer- ence with the election. [Emphasis supplied.] My colleagues hold that the Board may rely on evidence disclosed by the postelection investigation, "and that such evidence alone may be used to set aside an election." This holding is at odds with the Board's pronouncement in IrvingAir Chute, supra. The majority in the instant case is holding that an election may be set aside on the basis of allegations in a complaint which bear no relation to the objections filed. In this connection it is noted that the only specific 8(a)(1) violation alleged in the original charge, which WAS filed almost 2 months after the election, was the December 8, 1969, letter quoted above. Nor can I agree with my colleagues that the Trial Examiner's rulings are free from prejudicial error. General Counsel amended the complaint on the day of the hearing to add seven, new -paragraphs of violation of Section 8(a)(1). These amendments represented a substantial enlargement of the com- plaint since the complaint, prior to the day, of the hearing, was limited to three 8(a)(1) allegations, one of which was the December 8 letter quoted above.` No prior notice was given to the- Respondent as to two of the seven amendments, and only 3 workdays' notice was given the Respondent of the other five amend- ments. The Trial Examiner denied Respondent's 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion fora 1-month continuance to prepare to meet the amendments ` to the complaint, but offered to postpone the hearing-until the. beginning' of the following week. Respondent's counsel declined the 1- week, postponement because of prior commitments: The hearing then proceeded over the strenuous objections of Respondent's counsel. The Board's Rules.and Regulations -provide .that a respondent is entitled- to 10, days from the service of a complaint in which to answer and that hearing shall,be held not less than 10 days after the service of a complaint (Sections 102.15 and 102.20).8 In my view, such hearing, which, was clearly, contrary, to the Board's published Rules and, Regulations, ;did not meet the requirements of due process. See Russell-Newman Mfg. Co., -Inc. v. N.LR.B., 370 F.2d 980 (C.A. 5, 1966), denying enforcement of ,153 NLRB 1312., s My colleagues recognize that insofar as amendments (I) and (J) to the complaint are concerned the circumstances under which Respondent was compelled to proceed to hearing , were so inequitable that they do not predicate the bargaining order ,herein upon such amendments and the testimony in support thereof. In my opinion, the entire course of conduct dealing with the amendments was so permeated with lack of due process and fair play that no violation should be premised on any of them, particularly since it is'obvious that Respondent's counsel was not engaging in dilatory tactics and the General Counsel offered no-opposition to the continuance. The majority-suggests that the failure of the Trial Examiner to give the Respondent the 10 days'- notice, as required by the Board's Rules, was excused because Respondent did not 'request a continuance at `the conclusion of the General Counsel's case to prepare its defense to the extensive amendments to the complaint. Such 's suggestion ignores the basic proposition that a respondent is entitled to make a full investigation of the facts and prepare a defense before being required to conduct "eleventh hour" cross-examination of witnesses called by the General Counsel. See in this connection the dissenting opinion of Chairman Miller in Richard L Cannady and Jane' Cannady d/bla Bob White Target Company, Division,of CannadySupplly Ca, 189 NLRB No. 128. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in San Francisco, California, on June 9 and 10, 1910, on the complaint of General Counsel, as, amended,, and the answer,' as amended, of Pure Chem Corporation, herein called the Respondent.' The complaint alleges violations of Section '8(aX5) and (1) and 'Section 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 the General-=Counsel and Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: ' A charge was filed on February 10, 1970, and an amended charge was filed on May 8, 1970. The complaint was issued on March 24,, 1970, and amended at the outset of the hearing. Pursuant to a stipulation for certification upon consent election, approved by the Regional Director for Region 20, on November 10, 1969, an election was conducted on December 10 and 11, 1969. On December 15, Petitioner filed timely FINDINGS AND, CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a California corporation, with a place of business located at Richmond, California,- where it is engaged in the manufacture of chemicals. During the year immediately preceding the issuance of the complaint, a representative period, Respondentsold_and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of California,. The complaint alleges, the answer admits, and _I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED General Truck Drivers & Helpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The principal issues raised by the complaint and answer, and litigated at the hearing, are whether , the Respondent: (1) engaged in conduct constituting interference, restraint, and coercion, thus violative of Section 8(aXl) of the Act, by (a) installing vending machines, dining and ,other conven- ience facilities for its employees, in October or November 1969, or safety equipment, in November 1969, in an effort to induce its employees to abandon- their support of 'the Union, or (b) by President Haag, on or about December 8, 1969, impliedly promising employees raises, to induce them to abandon their support of the Union, or _ (e) by Ike McCoy, public, relations representative, in late November and early December 1969, engaging in interrogation, or, (d) by McCoy, in November or December 1969, making promises to improve an employee's working conditions and to provide economic benefits, or (e) by McCoy and Frank Callaghan, plant manager, in late November or early December 1969, engaging in interrogation , or (f) by McCoy, in late November or early December 1969, advising employees they would not participate' in,-Respon- dent's profit-sharing plan if the Union was selected as their collective-bargaining representative, or (g) by Dr. Meyer Wiener, vice president, in October , or November 1969, advising an employee' that Respo`ndentwould close its plant and move to' Texas, if the Union won the election, or (h)by Wiener, in November or December 1969, advising, an employee that she would not participate in Respondent's profit-sharing plan if the Union was selected as the objections to conduct affecting the results of the election..On March 24, 1970, the Regional Director found that Petitioners objections , alleged to be grounds for setting aside the election, encompass ' conduct allegedly violative - of the Act and included in the 'specifications of 'the complaint, issued on the same date. The Regional Director ordered a consolidation of the cases, for hearing and resolution of the issues. PURE CHEM CORP. 685 collective-bargaining representative of Respondent's employees; 2 or (2) by engaging in unfair labor practices in contravention of the provision of Section 8(aX5) and (1) of the Act, by failing and refusing to bargain collectively with the Union as the exclusive collective-bargaining representa- tive -of -Respondent's employees, in an appropriate unit, with respect to rates of pay, wages, hours of employment, and, other terms and conditions of employment, as more fully. described in the complaint, commencing October 10, 1969,- and at all times thereafter. The objections to conduct affecting the results of the election are confined to a letter, dated December 6,-1969, signed by President Haag and sent to each employee in the unit, which it is asserted "by implication" promises benefits to the employees in the event of a union defeat and threatens economic detriment to,the employees in the event of a union victory. Respondent denies the commission of any unfair labor practice. Supervisory Personnel The complaint, as -amended, alleges, the answer, as amended, admits, and I find- that Arthur T. Haag, president, Dr. Meyer Wiener,3 vice president, Frank Callaghan," plant manager, and IkesMcCoy, public relations representative, , at all times material herein, were, each, agents of Respondent, acting on its' behalf within the meaning of Section 2(13) of the Act, and that those named, except McCoy, were supervisors, within the meaning of Section 2(11) of the Act.4 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. A day or two prior to October 9,1969, James Foster and DavidI McQueen, employees of Respondent, obtained authorization card ^ forms from' Michael- J. Corniola, business representative of the Union. Having obtained the signatures of 15 employees, of a total of 16 employees in the unit, Foster and McQueen returned-the signed cards to Corniola on October 9.5 The cards contain the following legend: I hereby authorize TeamstersLocal No. 315 IBTC W&H of A under the-National Labor Relations Act to be my exclusive bargaining representative in the negotiations forbetter wages and working conditions. On Friday, October 10, 1969, Corniola, accompanied by 2 An allegation, in the amendment to the complaint , that David Boring, shift foreman, in November or December 1969, told an employee that Respondent would close its plant and move to Texas if the Union won the election was withdrawn, 3 Incorrectly Spelled Werner in the complaint and corrected- by amendment. 4 In view of the withdrawal of the allegations of the complaint, as amended, relating to Shift Foreman David Boring, I find it unnecessary to determine if'-Boring was, either an agent of Respondent or a supervisor within the meaning,of the Act. 6 It appears that there are four shift foremen , identified as Bob Mall, Willis Griffith, Guy Jones, and David Boring, whom Repondent contends should, be included in the unit . The assertion of Foster, union observer at the election, that the foreman named did not vote is undisputed. I find it unnecessary to resolve the question of whether the shift foremen are in fact Joe Treas and Joe Davis, also business representatives of the Union, went to Respondent's plant. Being advised that President Haag was absent, they met with Vice -President Meyer Wiener. Corniola advised Wiener that he and his companions represented the Union, that the Union represented a majority of the people working for Respon- dent, and that they had authorization cards from a majority of the employees and desired to negotiate a contract. Corniola then laid the cards out, one at a time, on a table, and read aloud the name appearing on each card. As-each name- was` announced, Wiener- acknowledged that each individual named was in fact employed by Respondent. Upon the conclusion of the reading of 15 names, "Wiener noted the fact that one individual had not been named. Wiener acknowledged 'that all of those named were employed at the time of this- meeting. When Corniola renewed his request for the setting of an appropriate date to commence negotiations,' Wiener advised that he did not have authority, and that he would advise President Haag, who was not available. Subsequently, on - Monday, October 13, Corniola, by telephone, advised President Haag of the above events, and of the Union's representation of the majority of the employees. Haag advised Corniola that Haag could not authorize negotiations, or sit down and negotiate, but that Respondent's attorney, Jack Hall, was, -then - present in Haag's office. Corniola then adv5-64 Hall that the Union represented the employees, that Wiener had been afforded an opportunity to inspect the authorization cards,-and that Cormola -desired to sit down and negotiate a collective- bargaining agreement. Hall responded by suggesting that the Union file a petition for election .6 On October 17, 1969, the Union filed a petition for election, Case 20-RC-9035. Subsequently, a stipulation for certification upon consent election was approved -by the Regional Director, on November 10, 1969, providing for a split election on December 10 and- 11, 1969.-A tally of ballots reflects 13 eligible voters, of whom 4 cast ballots in favor of the Petitioner and 8 cast ballots in opposition. On- December 15, Petitioner filed timely objections to conduct affecting the results of the election. Thereafter, on March 25, 1970, the employees went on strike.? Subsequently, on May 5, 1970, the Union made an unconditional offer, on behalf of the employees, to terminate the strike and return to work. On May 8, the Respondent agreed to reemploy the employees; as needed, and four were recalled prior to the hearing herein. It is undisputed that no replacements were employed during the period of the strike, or prior to May 8. - supervisory employees, since the cards were obtained from a majority of employees whether the unit was 16 or-20. § Wiener, appearing as witness for Respondent, did not dispute the recitation of Corniola, relative to the meeting of October 10. He did estimate the number of authorization cards shown to him to have been "about a dozen." While Haag appeared as a witness he was not questioned relative to his conversation with Corniola, and did not dispute the assertions of the union representative Hall appeared as cocounsel, but not as a witness. 9 It is undisputed that at the time of the strike there were still 16 employees in the unit. None worked during the strike. However, one quit a few days after the commencement of , the strike, one was hospitalized at the time of the strike, and one did not report for work but did not engage in the picket line activities. The remaining 13 did picket. - - 686 DECISIONS OF NATIONAL=LABOR RELATIONS BOARD Interference, Restraint, and Coercion Convenience Facilities- Safety Equipment .,It- is alleged- that, in October' or November 1969, Respondent installed vending , machines, dining and other convenience„._ facilities, and _ that, in the latter month, Respondent -installed safety, equipment, all to induce employees to abandon-their support of the Union. -, Foster was initially employed by Respondent in-August 1969. At the time. of the hearing herein, Foster was still an employee; but had not been recalled after the conclusion of the -strike and was in. layoff status. Foster described his duties, when employed, as a production worker and also as a shipping ,and receiving clerk., However, it Js obscure whether Foster was in these classifications simultaneously or at separate periods of time.s, , Foster asserted that the employees had complained about a lack of specific safety equipment. He asserted that he had called attention to specific hazards and unsafe conditions, at safety committee, meetings, and ; that President Haag, Vice President Wiener, and, Plant, Manager Callaghan, or one of them, would advise that the budget of that particular month was insufficient to accomodate an expenditure for safety equipments -Foster asserted, inadequate ventilation as among the objectionable conditions atthe plant, particularly by reason of ,the_, presence of hydrochloric acid gas fumes. Foster described employee dissatisfaction with working conditions and wages as the underlying reason he sought the aid of the Union. I have found, supra that on Friday, October 10, the Union displayed authorization cards, signed by all but one employee, and,requested recognition and bargaining:- On Monday,, October 13, President Haag advised the Union that hey did not have authority to bargain, and Attorney Hall advised, the Union to file a petition for- election, McCoy appeared at the plant, as a representative of Dart Industries, on Wednesday; October 15.10 Foster credibly related, he was taking a sample from a "ball mill," on October 15,,when McCoy approached and inquired about the nature of Foster's activity. Foster asserted that,,in explaining how he obtained the sample to McCoy, he discovered and pointed out a-bad valve. Foster explained what might have happened, and what could be done to prevent such an ocurrence, by the installation of a new quick disconnect unit. Foster then proceeded to another ball mill and again the flask fell. off. In order to recharge the second mill,; it was necessary to remove bolts which held it shut. Foster found the bolts were rusted and it was necessary to obtain the welder to cut them off. Foster asserted that the job should have required 2 minutes and actually required 4 hours, partially because new bolts were required and were-, not available. Foster 'responded to McCoy's inquiries relative to other equipment, explaining ' 8 Foster described Respondent's operation, prior to the March 25 strike, as a 7-day, 24-hour continuous operation, with two production operators' on each of three shifts and two relief operators as shifts rotated . It appears that there were-'two maintenance employees on the first shift , Belfils and Zampa. There were also several laboratory technicians , who worked in the laboratory d redly 'under the supervision of Dr. Meyer Wibnerr Other classifications, if'any`, are obscure. 9 In finding credible this, recitation of Foster, I am' not unmindful that the function of each. Foster asserted that, upon learning.of McCoy's connection with , Dart Industries, her invited McCoy to his home for dinner, the same evening, to discuss improvement of safety, increase in -production, and bringing up the morale of the workers. Foster asserted than David McQueen was present during his 'conversation with McCoy,, ' which commenced' , at approximately 6 p.m., on October, ,15. Among the safety items Foster called to the attention of McCoy were:?,that welding cables were frayed; or poorly patched, , and'that welders were forced to weld- while-these 'cords were in water; that guards' were needed over moving chain-and high pressures hoses to protect employees; 'that handholds were needed on tall vertical tanks; that the plant was-dirty and' dark and the lighting was poor; that when all of the machinery was operating, in the' winter' time, there was-a high decibel rating, requiring the wearing of oil-filter muffs to protect eardrums; and the chemical content of plant air was sufficiently high to cause deterioration of chrome finish on wrenches, within a short number Of days. Foster also advised McCoy the vessels in the plant would vent off a fume, which would condense on the ceiling, form a. liquid acid, and fall to the floor. Foster indicated"that he e did not enjoy sitting at a desk covered with liquid acid, wearing ear muffs and eating lunch. He advised McCoy that he thought it might be nice if they had a lunchroom which was quiet and clean." Foster called attention to;the fact that there was only one safety shower, and it ,was located in the laboratory. Foster described the plant as very large ,'with numerous pipes and equipment which prevented an employee from running rapidly from one building to another, which would be essential in the event of a spill, to reach the safety shower. Foster asserted that McCoymade copious'notes and that he indicated that he had been a longtime production worker and he was sympathetic. ,McCoy advised Foster, that McCoy had been a longtime member of certain unions, that unions were very good,but McCoy was desirous of learning what Dart Industries could do to keep the Union out of Respondent's, plant because it was- much easier. to_ deal directly with the employees without the Union being a middleman. McCoy explained that, although he saw nothing really wrong with the Union, he would prefer to keep them out of the plant. Foster asserted he,responded that he could not speak for-the other employees but, after lengthy discussions with them, Foster understood there had been 3 years of brokenpromises about safety equipment, or other items, which were promised and never arrived, and there was nothing Respondent could do to persuade. him not to vote for the Union. Foster asserted at the close of the conversation McCoy provided Foster' with' a business card which contained McCoy's home address and telephone. McCoy advised Foster that he could call'- McCoy ' if anything arose at the plant that Foster could not cope with Callaghan asserted he commenced - his employment' on approxunately September 3 or 4, but did not assume ' full responsibility until October' 1. 1o Plant Manager Callaghan asserted that McCoy was present, at ,the plant, as a representative of Dart Industries. Callaghan described McCoy's duties 'as increasing the plant capacity. 11 Foster asserted he also ` complained about lack of sufficient tools. However, the matters litigattA are confined to safety equipment and convenience 'facilities. PURE CHEM CORP. or which was not dealt with by management, in which event McCoy would come directly to the plant and treat with the problem. Foster asserted that within 48 hours after his meeting with McCoy, a, number of changes commenced. Foster described changes which occurred between October 17 and a date just prior .to the election, which was held on December 10 and 11, as including: a small trailer arrived for the employees to- use as a lunchroom; vending machines, including- a, cigarette machine, a candy bar dispensing machine, and a soda pop machine were installed in the trailer; a drinking water machine with a small refrigerator unit was placed in the plant;12 safety-showers, which had been, purchased-previously but never installed, were , installed; first aid in the -form of bum and acid neutralizer and burn spray were provided; as was ointment for the welding department.13 A breathing air system containing bottled breathing air, , connected to _a series of long hoses, permitting employees to put on a mask and work in a contaminated area were provided: larger gloves and face shields,, as added protection from bums were provided; some guards were placed around equipment, including chains., and hydraulic high, pressure hoses; lighting was improved by the installation of fluorescent lights. Foster tiacknowledged, the safety showers had been present, in crates,",for an-indefinite period, and were there when Foster was,first,employed. Foster asserted-that when inquiry was made, relative to the installation of them, at a safety meeting, the employees were advised the budget was not sufficient for such an expenditure. Foster asserted, that,, thereafter, he would have frequent conversations with McCoy as to how Foster. liked a particular improvement, such as: "Isn't it nice to have a pop machine," or the new lights are very nice, the new paint will look nice on this equipment." Foster asserted that usually at the end of these discussions he would be asked his opinion of `how he thought the election would go, and whether it would go for the Company or the Union. Foster asserted that McCoy would shake his head and say he was not too confident either way, and Foster replied that,he could not answer for the other workers and had no idea what the outcome of the election would be.14 Willis L. Belfils had been a'maintenance man and welder at Respondent's plant for approximately 4 years at the time he testified, and was employed at that time. Belfils asserted that `iris employment commenced when the plant opened and that he had built all of the' contents. His duties included repair of all machinery, the construction of 'tanks, and installation of, pipes, machinery; and other equipment. Belfils was among those who went on strike on March 25. He returned to work on Monday, May 11, 1970. Belfils 12 Foster described the prior condition, when an employee desired a drink of water, as a single sink, similar to a household sink, in one corner of the building, used to clean flasks and wash out brushes. The enamel had been removed by acid and the pipes were corroded. 11 Foster asserted the previous condition was: The only medication in the plant at that time was band-aids, and another small jar of bum ointment, which was upstairs in Willis Griffiths' desk. After 5:30 p.m. that was locked up. 14 McCoy did not appear as a witness . No explanation was made by 687 asserted he had been an observer in the election, on behalf of the Company. - Belfils was a member of the safety committee from May 1969 until early January 1970. Belfils credibly related that two meetings of the safety committee were scheduled- for each month. One such meeting was to be confined to members of the committee, while the second meeting would involve all of the personnel for-discussion.of safety matters. Belfils asserted that by reason of the absence of manage- ment representatives, or for other reasons, numerous meetings were not held, and in fact such meetings were held only once every-, other- month. Belfils identified Haag, Griffith, and later, Callaghan, as the management repre- sentatives on the committee. The committee did tour' the plant to-identify existing hazards=which needed correction. Among the items enumerated by Belfils were: faulty wiring; absence of fire extinguishers; . broken ladders; absence of safety 'showers; frayed welding cords; and absence of insulated boots where welding was done in water. Belfils asserted the main response of management, during' the early period, preceeding the-advent of the Union, would include: insufficient time to, handle 'the matter; busy with other things requiring a postponement of the particular item; and financial inability to attend to it at that time. Belfils asserted that he first met McCoy in late October or early November 1969, in the plant. At that time McCoy advised Belfils that McCoy was a representative of Dart Industries. McCoy explained that he was interested in the plant, and wanted to know how the plant functioned and how Belfils liked working there. Belfils asserted, he had numerous conversations with McCoy in the plant; explain- ing he would have a conversation every day that McCoy was there. Belfils credibly related that, in December, "close to the election," McCoy advised Belfils and Zampa that he (McCoy) hoped the Union would not win, because, Dart has a policy that they do not recognize Unions in their system, and that the Company-would, once it got on its feet, do better, and that they would try to make it to where the employees would not want a Union, and would not need one, by such things as better wages, better-conditions to work under, and a better safety program. Belfils asserted he complained about the lack of insulated boots to permit him to do welding while standing in water, without danger. He related he was given a charge card to procure them from a local store but not before the advent of the Union.15 - . . While, as related by Griffith, -a request for "quotations," for face mask and breathing` equipment, was made, by Respondent, on May 22, 1968,no appropriation appears to have been made for it until July 15,-1969 some 15 months later.16 Griffith acknowledged the plant lighting was improved Respondent as to why McCoy was not called While Callaghan , appeared he did not dispute the above recitation of Foster. Callaghan acknowledged McCoy was at the plant approximately 2 days each week during the period preceding the election. - - Y5 Foreman Griffith described these boots as `Fheavy - duty- rubber boots," and explained the delay in purchase as being due to the necessity of Belfils and Zampa going to the store for a fitting. Griffith, who was purchasing agent for Respondent, estimated the cost as $15 a pair. 16 The safety committee report to plant personnel ,of February 27, 1969, (Continued) 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between July and November , 1969, explaining the electrical contractor did the work as men were available. Griffith acknowledged a first aid kit in the laboratory and some items in his desk, such as burn spray, ointment, and bandaids, constituted everything available, in the first aid category,-prior to the last quarter of 1969. He related-that out of the appropriation they did purchase first aid equipment during the-last quarter of 1969. Griffith asserted Respondent ordered the trailer, used as a lunchroom, about the last week of September, under a lease agreement.17 While Griffith produced copies of requests for quotations, and-some purchase orders, there is no document relating to the trailer. Respondent does not contend that any employee was advised that Respondent was, securing a lunchroom area prior to the arrival of the trailer. According to Griffith the trailer arrived in late October. Griffith, asserted that, in late July 1969, he requested employees to indicate preferences as to soft drink and cigarette machines., He acknowledged these were not installed, in the, trailer, until, mid-October. Griffith estimated it required ,about 2 weeks to obtain , the water cooler, which was ordered in mid-October. The first aid kit and chemical burn , water were ordered on November 30, 1969. Letters to Employees-December 6, 1969 Objection to Conduct of Respondent It .pis- undisputed that on Saturday, December 6, 1969, President Haag sent a three-page letter to each employee in the unit. These letters were received on Monday, December 8. The-election was held on December 10, from 2:45 to 3:15 P.m.,, and on December 11, from 6:45 to 7:15 a.m. The letter is the sole basis for objections filed by the Union. The asserted reason for the objections is that the letter "by implication promises benefits to the employees in the event of a union defeat and threatens economic detriment to the employees inthe event of a union victory." The letter is also the basis of an allegation in the complaint that in it Respondent inipliedly promised raises to employees, to induce them-to abandon their support of the Union. The paragraphs of the letter which General Counsel identified as containing promises are the following: This last month we made some 17,000 pounds of product. Hopefully, this month we will break that record and move up to over 25,000 pounds. This comes as a result of better team work, comes as a result of your efforts, comes as , a result of improved equipment and approaches. This will mean for the very first time that we can expect to break even and perhaps begin to make money. When a plant is making money things always improve as far as morale, as far as friendliness, and as far as spirit-often other things improve too. Our policy is to pay fairly. By fairly we mean in accordance with the standards of the community and similarly situated plants in the community. I have been planning a review of our wage structure. We should re- examine the relationship between the wages of our various groups of employees. We should re-examine the item 5, recites: Two full face masks with 50' hose each and 3 cyls air each bank-on 'order. Griffith explained "on order"' meant awaiting essential fairness of our, classifications to see if there need to be more or fewer classifications. We should take another look at the time it takes to reach the top rates. We should look at those top rates. You have a right to ask whether we would give a raise if the Teamsters get in. ` No one can say. I would expect that you will get just as much non-union as you would union. Neither General Counsel nor Charging' Party specified any portion of the letter as constituting-a threat. Foster related that he had a,conversation with Haag, With Wiener present, at the Lucky Lanes Bowling Alley, on approximately December 9, during which Haag-stated that he could not make any comment positive or negative about any wages as it would be illegal. Foster asserted 'he had another conversation with Haag, the same day ' in the laboratory, with Fernades, Edmunds, and-Nora Johnson present. However, Foster also placed the situs as the trailer office. During this conversation'-, accordingto Foster, Haag said he had done a survey of thelocalarea,thcommunity, the wages earned in that area, and conditions, etcetera, and that the letter explained those,, and` that= he would consider it, as he said, I believe in the last paragraph of his letter, a personal favor to vote for the Company, you know, if-we were to vote for the Company and not for the Union. Asked specifically what, if anything, Haag said about''a pay raise Foster responded: "The survey was done, and when they had the results things-would definitely-improve." Thereaf- ter, Foster acknowledged that Haag did not promise a wage increase. Haag asserted that in this particular' conversation, in the laboratory, he, advised the employees of the' results of a survey of a local plant which indicated that Respondent's wage rates were not out of ' line' ,with the, rates at- that particular plant. Haag denied making any specific promises of improvements in the wage structure. Haag acknowl- edged following the theme of the letter'' that if the Company's operation met with success and prosperity many things would improve. I find this recitation of Foster implausible. If is unlikely that Haag, obviously advised that he could not promise pay increases, and having advised Foster that he could not comment "positive or negative" as it would be `unlawful, would, the same day advise him "things would definitely improve." Accordingly, to the extent the testimony of Haag conflicts with the testimony of Foster, relative to the promise of a pay raise, I credit Haag. Section 8(c) provides that the expressing of any views, argument, or opinion shall, not constitute or be evidence of any unfair labor practice if such expression contains no threat of reprisal or force or promise of,benefit. I am unable to find any language in the December,6 letter which would support a finding of either a ,promise, by implication, or a threat of economic detriment. According- ly, I will recommend dismissal of,,, the allegations. of paragraph 6(c) of the complaint and overruling of A he Union's; objection. appropriations, for safety equipment 17 However, the lease agreement is'not in evidence. PURE CHEM CORP. 689 McCoy-Interrogation Nora Johnson was initially hired by Respondent in June 1967, and was employed at the time of her testimony. She is a laboratory technician. Dr. Wiener is her immediate supervisor. Johnson related that either President Haag or Vice President Wiener introduced her to McCoy in October 1969, indentifying 'McCoy as a representative of Dart Industries. Johnson credibly related a conversation she had with McCoy about 2 weeks prior to the election. McCoy inquired: "How do you think things are going to go [in the election], Nora?" Johnson responded ,that she thought it would go for the Company. McCoy then stated, "Well, I wish I could be as sure as you are." Johnson asserted that she responded that she did not know what McCoy was worrying about. Johnson acknowledged having previously advised Wiener she intended to cast her vote for the Company. McCoy then inquired, "How about the girls in the lab, how about Ruby?" Johnson asserted she responded that Ruby would votehfor ,the Company. McCoy then inquired, "How about Suzie?" Johnson asserted that she responded that, definitely, Suzie would vote for the Company. McCoy then inquired as to how Zampa would vote, and Johnson responded she was pretty certain he would vote for the Company. McCoy then inquired as to how Al Hill would vote and Johnson-responded she did not know. I have found, supra, that on October 15 McCoy advised Foster, in the presence of McQueen, that McCoy was desirous of learning 'what could be done to keep the Union out of Respondent's plant because it was much easier to deal directly with the employees without the Union being present. I have also ' found, supra that as each improvement, previously suggested to- McCoy by Foster, was installed McCoy 'would inquire of Foster as to how he liked the particular ' improvement. These inquiries were followed by McCoy's inquiry of Foster's opnuon as to employee sentiment relative to the election. Foster related that he responded to each of several such inquiries by advising McCoy he could not answer for the employees. McCoy-Promises of Benefits I have found, supra- that McCoy advised Belfils and Zampa, just prior to the election, that once the Company got on its feet it would do better and try to make it "to where the employees would not want a union in there" and would not need one, by such things as better wages, better conditions, and a better safety program. Belfils related that McCoy also advised that he (McCoy) would obtain the setting up of a special fund for Belfils, so that Belfils could obtain the proper equipment to do his job properly . Belfils asserted that McCoy also advised that he (McCoy) would putBelfiis in charge of maintenance and construction at the plant, that the plant had a good promise of growing, and that they would build a plant next door and enlarge. Belfils 'a Callaghan was unable to recall any conversation in his office in which Belfils and McCoy participated relating to any employee being asked how the employee would vote. Callaghan asserted that he had been briefed earlier, after the Union appeared, that they were not to discuss the also asserted that McCoy advised Belffils and Zampa that he would take them to Los Angeles, and to some of the other plants owned by Dart Industries, so they could we how maintenance is run in a large plant. Johnson asserte& that in a second or third conversation she had with McCoy, inferentially in October or Novem- ber, McCoy asked her, "What was causing the trouble?" She asserted that she responded by advising him that it was wages agd safety, ' that these were the main problems. McCoy advised her that he had been through many strikes, that usually people find out that the company could do as well for them, if not better, than unions could do for them, and that, if the company was given a chance, they would come through. Johnson related that Vice President Wiener had assured her that McCoy had influence ' with Dart Industries. Thereafter, McCoy advised Johnson that Wiener had talked to him about wages. McCoy asserted that the laboratory people were very much underpaid, and that this fact had been brought to the attention of Dart Industries. I find the last assertion of McCoy to be an implied promise of increased wages. McCoy and Callaghan-Interrogation Belfils credibly related that he had several conversations with plant manager Callaghan, in Callaghan's office, with McCoy present, and with McCoy, in the plant, immediately prior to the election, when he was asked by each of them how he thought the election was going to go. Belfils asserted that he was advised that they knew how four votes were going to be cast but they were interested in how other people were going to vote and inquired whether Belfils knew. Belfils asserted that McCoy advised him that McCoy could not tell him how to vote, that they were not doing that, but that they didn't want the Union to get in if it was at all possible to prevent it .18 - The McCoy Threat Relative to Profit-Sharing Program Alvin Hill was initially employed by Respondent on September 3, 1969, in shipping and receiving . He was a relief operator at the time of the strike, , on March 25, in which he participated. At the time of his testimony, he was in layoff status. Haag introduced Hill to McCoy, prior to the election, while Haag was giving McCoy a tour of the plan. In early December, prior to the election, McCoy advised Hill that Respondent had a profit-sharing plan whereby, as the Company grew, the profit-sharing grew , and, if an employee was fired or quit, he would get his share of the money in the profit-sharing plan . McCoy also advised that, if the shop became union, it would not be possible for the employee to get profit-sharing. Belfils related that in a conversation, in December, prior to the election McCoy advised Belfiils and Zampa that, if the Union won the election, there would not be any profit- union situation with employees. Callaghan denied ever hearing McCoy discuss the Union with any employees . To the extent Callaghan's totftogy is at variance with that of Belfils, i credit Belfils. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sharing plan in the Company; that the existing profit- sharing plan would no longer,exist. Belfils asserted ,that at the, time Dart Industries took over Respondent's plant, in May 1969, Dart Industries sent a representative to the plant who explained how, the profit-sharing plan worked, -and gave each employee a booklet relative to it.19 Under a heading of "Who Is Eligible to Participate" the following: qualification appears, "Is an executive, adminis- trative, professional, sales, clerical or other employee and is not covered by a collective-bargaining agreement." After the qualification, reference is made to a, provision entitled "Effect of Collective-Bargaining Agreement," in which it is noted that benefits of employees represented by a majority collective-bargaining agent are determined by negotiation. The validity of the plan itself was not litigated. Wiener--Threat to Close Plant Nora Johnson credibly related that, in October, after the Union obtained authorization cards, she went to Wiener's office to advise him that she had signed a union card. She explained to Wiener that she had signed the card because of the existing wages. Wiener responded, "Well, you know, Nora, this is a poor company. We are in the red, we have been in the red, and are still in the red, and this union coming in, is all they're going to need, that probably they'll move it [the plant] to Odessa, Texas, because Dart Industry is dead set against unions." 20 Wiener; Threat Relative to Profit-Sharing Johnson related she had a conversation with Wiener, in the laboratory, in October, after the advent of the Union, in which Wiener advised her: "Nora, I want to know if you are aware that if the Union came in, you would no longer have, profit-sharing, because this is against Dart's policy." Johnson asserted that she was aware of that because Zampa had so advised her, Johnson, on cross-examination, denied that Wiener explained that, if the Union won the election, everything, including profit-sharing, would be subject to negotiation.21 Refusal To Bargain Appropriate' Unit and the Union's Majority Status It is undisputed that the Regional Director, in Case 0-RC--9035, on November 10, 1969, approved a stipula- tion for certification upon consent election which provided, inter alga, that specified employees of Respondent consti- ts The profit-slrarhi plan is identified as "Profit-Sharing Retirement Trust." It was initially under the unme of Rexall Drug, which was later changed to Dart Industries. It is undisputcd 'thet the profit-sharing plan was a plaui of the patent corporation and was applied to the employees at 'Respondent's plant. I* Wiener identified his capacity as technical director, vice president, and a chemist. He identified his responsibilities as technical catalyst evaluation, catalyst development, and certain managerial responsibilities. wiener acknowledged having a conversation with Johnson relative to the possibility of the plant being moved to Texas. wieners version was: "I brought up the Odessa matter, because there was a rumor making the rounds of the employees on this, and I said, to the best of my recollection, that if there was any truth to this matter, that in my opinion, the Company would be more likely to go through-with the move if a union came in. That was in my opinion, that's the way I expressed it." tare 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 production and maintenance employees, including laboratory technicians, employed by the employer at its plant located at Richmond, California,excluding office clerical employees, salesmen, professional employees, guards and supervisors as defined in the Act. On October 10 and 13 , 1969, there were 16 employees in the unit described.22 It is undisputed that on both dates the Union , had in its possession unambiguous authorization cards designating the Union as representative, for the purpose of collective bargaining, in the unit described above, signed by 15 of the employees in said unit. I have found, supra, under the section entitled "Backgound," that on Friday, October 10, Corniola, union representative, displayed the authorization .cards to Vice President Wiener, at Respondent's plant, and requested recognition and bargaining. Wiener acknowledged, the employee status of each card signer. Wiener responded that he did not have authority to grant the request _and-suggested that Corniola get in touch with President = Haag. I have found that, on Monday, October" 13, Corniola, by telephone, requested President Haag to recognize the Union and to schedule a time for negotiations; advising Haag of the events of the prior Friday. Haag responded that he could not authorize negotiations . No recognition has since been accorded and no negotiations have ensued.- Concluding Findings Interference,_ Restraint, and Coercion Prior to the Blue Flash, case,23 all interrogation relative to union membership, activities, and desires, was held to be per se unlawful. -In Blue Flash the Board found legitimate reasons for inquiry, when conducted with appropriate safeguards. 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: The Board further elaborated in its decision in Johnnie's Poultry case24 in which the Board stated that the purpose which the Board and courts have held legitimate (permitting interrogation) are of two types: clarification of a Union's claim to majority status to, determine whether recognition should be extended, and investigation of facts concerning issues raised in a complaint; where such To the extent the testimony of wiener is at variance with , that of Johnson, I credit Johnson. 2a Wiener acknowledged having a conversation in the laboratory relative to proffit-sharing, but was uncertain whether it was with Johnson or another employee, identified as Chris Edmunds. Wiener asserted: "Approximately, that based on what I had heard from other management people, I said that the fringe benefits that existed under Dart would not automatically carry over if the Union won, but that these would be open for negotiation." - To the extent the testimony of wiener is at variance with that of Johnson, I credit Johnson, 22 The result would not vary if, as Respondent contends, four shift supervisors were added to the unit. as Blare 17ash ress Inc, 109 NLRB 591. 24 Johnnie's Poultry Company, 146 NLRB 770, 775. PURE CHEM CORP. 691 interrogation is necessary in preparing the employer's defensefor the trial of a case. There is no indication in-this record of the existence of either of the conditions outlined by the Board-in Johnnie's Poultry case, nor were the safeguards enumerated therein taken. Accordingly, Hind the interrogation of employees by McCoy and Callaghan, as found in the section-entitled "Interference, Restraint, and Coercion;' were coercive and thus violative of the provisions of of Section 8(aXl) of the Act. I have found that McCoy advised' Belfils and Hill that if the Union won the election the existing profit-sharing plan would no longer exist. I have found that Wiener made the same assertion to Johnson. The Board has found such an assertion constitutes a threat and conduct in derogation of Section 8(a)(1). Elias Brothers Big Boy, Inc., 139 NLRB 1158.E General Counsel correctly urges, in his brief, that the arrival of McCoy, on October 15, immediately followed the Union's request for recognition and bargaining. McCoy's meeting with Foster, for the purpose of ascertaining the nature of the employees dissatisfaction was promptly followed with the arrival of new equipment, to alleviate portions of that dissatisfaction. The recitation of Foster as to the numerous inquiries of McCoy, relative to employee reaction of these improvements, and their possible effect or impact on the outcome-of the election, stands undisputed. Since Respondent did' not see fit to produce McCoy as a witness, or explain his nonappearance, it must be assumed that McCoy's recitation would have been: adverse to the interests of Respondent 26 I find it unnecessary to repeat the numerous findings I have made, supra relative to promises of benefit made by McCoy to Foster, Belfils, and Johnson, in the event the Union was defeated and the Respondent was permitted an opportunity, to improve conditions. Similarly, I find it unnecessary to repeat my finding that Wiener threatened plant closure and removal to Odessa, Texas, in the event the Union won the election. General Counsel, in support of his contention, cites the holding of the Supreme Court in Exchange Parts, 27 The broad purpose of Section 8(a)(1) is to establish "the right of employees to organize for mutual aid without employer, interference"-[citation omitted]. We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is 'undertaken with the , express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect. In Medo Photo Supply Corp., v. N.L.RB., 321 U.S. 678,686 this Court said. "The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats or domination." " Although in that case there was already a designated bargaining agent and the offer of "favors" 25 Accord: Melville Confectwns, Inc., 142 NLRB 1334. 28 Interstate Circuit v., U.S., 305 U.S. 208, 225-226; N.L.R.B. v. Remington Rand Inc., 94 F.2d 862, 871 (CA. 2). e'+ N.L.RB. v. Exchange Parts Co., 375 U.S. 405,409. 28 N.L.RR v. 6issel:Packing Co., 395 U.S. 375 (1969). Eg., Great Plaint Steel Corp., 183 NLRB No. 96 (1970); Martin 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 there are fully applicable here. The danger inherent in well-timed increases in benefits is the 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 source from which future benefits must flow which may dry up if it is not obliged. -. Accordingly, for the reasons stated, I find -each, act of interrogation, each acquisition and installation of conven- ience facilities, or safety improvements, each promise of benefit or threat, as specifically found herein, constituted conduct in derogation of the provisions of Section 8(aX-l) of the Act. Refusal To Bargain The complaint alleges that on October 10, 1969, the Union requested Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, as the collective-bargaining representative of the employees in the unit herein found to be an appropriate unit.IIt appears undisputed that, at all times thereafter, Respondent refused the request of the Union. I have found, from undisputed testimony,' that on October 10, Corniola, union business representative, displayed 15 unambiguous authorization cards, signed by Respondent's unit employees, to Wiener. It is undisputed, and I find, that this constituted majority representation. In the light of the Supreme Court's decision in Gissel 28 it is now established that an 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 the employer engaged in substantial unfair labor practices making a holding of a fair election impossible or unlikely. Here the record establishes beyond doubt that the Union at all times at and 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 established by methods other than certification by the Board after an election, including the securing of the majority, of unambiguous authorization cards.Under the Board's subsequent explications of Gissel 29 it is well settled that, where an employer rejects a bargaining demand based on unambiguous authorization 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 Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices]," Electronics Inc., 183 NLRB No. 4 (1970); Central Soya of Cantors Inc., 180 NLRB No. 86 (1969); Heck's Inc., 180 NLRB'No. 64 (1969); W.7: Grant Company, 180 NLRB No. 45 (1969); The Brescome Distributors Corporation, 179 NLRB No. 137 (1969); and Garland Knitting Mills of Beaufort, South Carolinas Inc., 178 NLRB No. 62 (1969). 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 effect of past practices and of insuring a fair election (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 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, immediately upon becoming aware of the strength of the prounion sentiment among the employees, by the exhibition of authorization cards from 15 employees out of 16 in the unit, embarked on the course of conduct found above, including coercive interrogation, threats, promises, and efforts to supply convenience facilities and safety equipment, 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 labor practices, 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(a)(5) and (1) of the Act. I shall therefore recommend that Case 20-RC-9035 be severed and remanded to the Regional Director for Region 20,, with Instructions that the election held on December 10 and 11, 1969, be vacated and set aside, and the petition in said case be dismissed. 1! '. YH 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 fend that the Respondent has engaged,' and is engaging, in certain unfair labor practices, I shall recorimehd'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 General Truck Drivers & Helpers Local No. 315, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all employees sQ 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 in the unit herein found to,be appropriate for thepurpose of collective bargaining, with respect to rates of pay; wages, hours of employment, and other conditions of- employment, and, if an understanding is reached, upon request, embody such understanding in a signed agreement. It is further recommended that Respondent be ordered to cease and desist from in any like or related manner infringing on 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. General Truck Drivers & Helpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance -employees, includ- ing laboratory technicians, employed by Respondent at, its Richmond, California, plant excluding office clerical employees, salesmen, professional 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 exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, since October 9,1969. 5. By failing and refusing to meet,and bargain, in good faith, on and after October 10, 1969;'with the Union as the exclusive collective-bargaining representative 'for 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(aX5) 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)(1)-of the Act. 6. By engaging` in the conduct set forth in, the 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 Section8(aX-l) 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 ORDER30 On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent, Pure Chem Corporation, 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. PURE CHEM CORP. its officers, agents, successors, and assigns,shall be ordered to: 1. Ceaseand desist from: (a) Failing, and .refusing to bargain collectively in good faith, with General Truck Drivers-&µHelpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehouseniten & Helpers of America,- as the exclusive bargaining. representative `of all its employees constituting the unit herein found -to be appropriate for the purposes of collective bargaining. (b) Interrogating employees in a manner violative of the provisions of Section 8(axl) of the Act. (c) Providing or promising employees benefits or improvements in working conditions as an inducement to refrain from becoming or remaining a member of a union or giving assistance or support to it, or threatening economic retaliation in the form of discontinuance of existing benefits, or plant closure or removal, with consequent employee loss of employment, in the event the Union won the election. (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 to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in 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 General Truck Drivers & Helpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 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 contract. (b) Post at its plant in Richmond, California, copies of the attached notice marked "Appendix." 31 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, 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, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, 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 order32 IT Is FURTHER RECD ED that Case 20-RC-9035 be severed and returned to the Regional Director for Region 20, with instructions to vacate and set aside the election of 693 December 10 and 11, 1969, and to dismiss the petition for election in saidcase. , IT Is FURTHER RECOMMENDED that the allegations of paragraph VI(c) of the complaint be, and they are hereby,' dismissed. 31 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of-the United States Court of Appeals enforcifng an Order of the National Labor Relations Board." 32 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 20, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIM NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, recognize and bargain with General Truck Drivers & Helpers Local No. 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all 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 under- standing in a signed contract. The bargaining unit is: All production and maintenance employees, including laboratory technicians, employed by Pure Chem Corporation at its plant located in Richmond, California, excluding office clerical employees, salesmen, professional employees, guards and supervisors as defined in the Act. WE WILL NOT interrogate employees in the manner violative of the provisions of Section 8(aXl) of the Act. WE WILL NOT provide or promise employees benefits or improvements in working conditions as an induce- ment to refrain from becoming or remaining a member of a union or giving assistance or support to it, or by threatening economic retaliation in the form of discontinuance of existing benefits, or plant closure or removal, with consequent employee loss of employ- ment, in the event the Union won the election. WE WILL NOT in any like or related manner interfere with, or restrain, or coerce, our 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 representatives 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 to refrain from any and all such activities, except to the extent that such right might be affected by an agreement requiring membership in a labor organi- 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. 1 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to This is an official notice and must not be defaced by refrain from becoming or remaining, members of the anyone. above-named Union or any other labor organization. This notice must remain posted for-.60 consecutive days from the date of posting and must not be altered, defaced, PURE Cis CORPORATION or covered by any other material. (Employer) Any questions concerning this notice or compliancewith its provisions, may-be -directed to,theBoard's Office, °13050 Dated By Federal Building,, 450 Golden Gate--Avenue, Box'^36047, (Representative) (Title) San Francisco, California 94102, Telephone 556-3197.