Tri-County Tube, Inc.

TRI-COUNTY TUBE, INC. 103 Tri-County Tube, Inc, and International Association of Machinist and Aerospace Workers, AFI-CIO. Case 3-CA-4222 November 10, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 22, 1971, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices as alleged in the complaint and recommend- ed that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. The complaint alleged and the Trial Examiner found that Respondent violated Section 8(a)(1) of the Act by President Bush's threat that he could have employee Deiter prosecuted for perjury because of her testimony at the representation hearing. We do not agree. There was nothing in the threat itself, or the context in which it was made, that could be construed as relating to Deiter's employment status or which established that it was intended to intimidate employ- ees testifying at a Board hearing. It appears, in fact, to be nothing more than Bush's opinion that Deiter, in giving testimony contrary to his own at the represent- ation hearing, had lied under oath. Under these circumstances Bush's statements did not constitute an invasion of the rights of the employees under the statute.' We shall therefore dismiss this allegation of the complaint.2 ORDER Pursuant to Section 10(c) of the National Labor 194 NLRB No. 5 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, Tri-County Tube, Inc., Nunda, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.3 1 Cf. Waggoner Corporation, 162 NLRB 1161, 1167. 2 For the reasons expressed by the Trial Examiner, Member Jenkins would affirm his finding of a violation of Section 8(a)(1) in President Bush's threat to employee Defter. Bush told Deiter that he could have her prosecuted for perjury because of her testimony in the representation hearing which conflicted with his. Bush's subsequent statement to Deiter that he would not do so because "Everything has gone in favor of our side" sufficiently discloses the meaning and thrust of his threat. Even without this clear elucidation from Bush himself , however, the threat in the context of substantial other misconduct by the Employer amply discloses the coercive and restraining meamng, and its direction toward protected activity, conveyed by Bush's threat. 3 Chairman Miller agrees that a bargaining order is appropriate in this case, as a remedy for the serious violations of Section 8(a)(1) which Respondent is found to have committed within the 10 (b) period. Consistent with his position in United Packing Company of Iowa, Inc., 187 NLRB No. 132, Chairman Miller does not find it necessary to reach the 8 (a)(5) issue, and therefore does not pass on the Trial Examiner's finding of a "continuing demand." See Howard Mfg. Co. v. N.L R B., 436 F.2d 581 (C.A. 8) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MuLLIN, Trial Examiner: This case was heard in Nunda, New York, on March 31, 1971, pursuant to a charge, duly filed and served.' The complaint, issued on December 29, 1970, and amended at the outset of the hearing, alleged that the Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act. In its answer, the Respondent conceded certain facts as to its business operations, but it denied all allegations that it had committed any unfair labor practices. All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing and to file briefs. Oral argument was waived by the parties. On April 23, 1971, the General Counsel and Respondent submitted able and comprehensive briefs. A motion to dismiss, made by the Respondent at the close of the hearing was taken under advisement by the Trial Examiner. It is disposed of as appears hereinafter in this decision. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, with its plant and principal office in the town of Nunda, in that State, has been engaged there, at all times material herein, in the manufacture of steel tubing and related products. During 1 The charge was filed on August 28, 1970. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the course of the 12 months prior to issuance of the complaint, a representative period, it manufactured, sold, and distributed products valued in excess of $50,000, of which amount products valued in, excess of $50,000 were shipped from the plant in Nunda directly to customers located outside the State of New York. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that Tri-County Tube, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and the Trial Examiner finds, that International Association of Machinists and Aeros- pace Workers, AFL-CIO, (herein called Union or IAM), is a labor organization within the meaning, of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent concedes, and the Trial Examiner finds, that all production and maintenance employees at the Respondent's Nunda plant, exclusive of office clericals, 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. In December 1969, Mr. John G. Jackson, Grand Lodge representative for the Union, began an organizational campaign among the Respondent's employees. Helen Deiter was one of the employees most active among her coworkers in this regard. Jackson testified that in mid- December she turned over to him approximately 10 authorization cards which employees had signed. In a letter,-dated December 30, 1969, Jackson wrote Mr. Edward Bush, president of the Respondent, that a majority of the production and maintenance workers had authorized the IAM to represent them, and on behalf of the Union he requested that the Respondent recognize it as the majority representative and arrange a conference to discuss the terms of a collective-bargaining agreement. On January 12, 1970,2 the Union filed a petition for an election. Tri-County Tube, Inc., Case 3-RC-4843. On February 26, a hearing was held on the issues raised by this petition. On March 12, the Regional Director issued a Decision and Direction of Election in that case. Thereafter, on April 7, the Regional Office conducted an election among the employees in the appropriate unit. Of approxi- mately 19 eligible voters, 10 votes were for the IAM, 9 votes were against, and 2 ballots were challenged. On June 8, the Regional Director issued a Supplemental Decision wherein he found that one of the challenges should be sustained, but that the challenge to the ballot of Timothy Paine, an employee on military leave, should be overruled and that his ballot should be opened and counted. In a revised tally of ballots, issued on June 16, the addition of Paine's ballot resulted in a vote of 10 for the IAM and 10 against. Since counting of the challenged ballot was not dispositive of the representation issue, the Regional Director thereupon considered the Union's objections to conduct affecting results of the election.3 On July 8, and after an investigation, the Regional Director issued a Second Supplemental Decision wherein he found no merit in one of the objections, but concluded that the issues raised by the two other objections should be resolved only after a hearing. He thereupon ordered that a hearing be held for this purpose. On July 14, the said hearing was held and on August 28, the Regional Director issued a Third Supplemental Decision, wherein he dismissed one of the objections, but found merit to the other which alleged that prior to the election the Employer had threatened the employees with closing the plant and promised them wage increases and other benefits in an effort to defeat the Union. As a result of these conclusions, the Regional Director set aside the election held in April and directed that a new election be held. As noted earlier, on August 28, the Union filed an unfair labor practice charge alleging that the Respondent had violated Section 8(a)(1) and (5) of the Act. On December 21, after the IAM requested permission to withdraw its petition in Case 3-RC-4843, the Regional Director approved this withdrawal. B. The Organizational Campaign of the Union and the Request for Recognition 1. The demand During the early part of December 1969, the Union secured signed authorization cards, from many of the employees. These cards were worded unambiguously and on their face clearly set forth a purpose to designate the Union as the signatory's collective-bargaining agent. As such, they do not have any of the limitations or disabilities which the Board and the Courts have attributed to so-called dual purpose cards. Levi Strauss & Co., 172 NLRB No. 57; Gissel Packing Co. v. N.LR.B., 395 U.S. 575, 607-609.4 Eight of the individuals who signed cards were called as witnesses by the General Counsel. Each testified credibly and without contradiction that she had read the card when it was presented to her and that thereafter she had signed it for the purpose of having the Union represent her. The employees who so testified were: Virginia Baham, Helen 2 All dates that appear hereinafter are for the year 1970 unless specifically noted otherwise. 3 The objections had been filed on April 15, and within the time permitted by the Board's rules, as the Regional Director found. 4 The following language appeared on the face of the card- YES, I WANT THE IAM I, the undersigned employee of (Company) authorize the International Association of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent for wages, hours and working conditions. I agree that this card may be used either to support a demand for recognition or an NLRB election, at the discretion of the union. NAME (PRINT) DATE HOME ADDRESS PHONE CITY STATE ZIP JOB TITLE DEPT. SHIFT SIGN HERE' X Note: This authorization to be SIGNED and DATED in Employee's own handwriting. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW RECEIVED BY (Initial) TRI-COUNTY TUBE, INC. 105 Deiter, Christine Klugh, Ruth Letson, Geraldine Perry, Carol Smith, Shirley Truax, and Sonja Truax. Helen Deiter also testified, credibly, that on December 10, 1969, she gave employee Winifred Beardsley a card, that the latter read it and that after she had done so, Beardsley signed the authorization. All of the foregoing cards were signed during the period from December 9 to 10, 1969.5 In addition to the foregoing cards, all of which were received in evidence, two others were offered and received. These were the cards of employees Ruth Sleight and Judith Burger. John G. Jackson testified, credibly and without contradiction, that on about February 5, he gave authorization cards to these two last named employees and that, after reading the cards, Sleight and Burger signed them in his presences As found earlier, in a letter dated December 30, 1969, the Union made its initial demand for recognition and for a bargaining conference. In a telegram dated January 14, 1970, the Respondent rejected the Union's request on the ground that the Respondent did not believe that a majority of its employees cared to have the IAM represent them, notwithstanding any cards they might have signed. The Respondent concluded its wire with the declaration that it would not meet with the Union, or any of its representa- tives, unless and until the IAM was certified by the Board. As noted earlier, on February 26, 1970, the Regional Office held a hearing on the representation petition filed in Case 3-RC-4843. At that time, counsel for the Respondent reiterated that the Respondent had not changed its position and that it would continue to refuse recognition to the Union until such time as the Board decided the representa- tion issue. At the hearing in the instant matter, President Edward Bush conceded that the Respondent's position on the Union's request for recognition and bargaining was still the same as it was at the time the Company dispatched the telegram of January 14, 1970. Since the charge in this case was filed on August 28, 1970, the 10(b) date is February 28, 1970. The General Counsel contends that although the demand for recognition which the Union made on December 30, 1969, was beyond the 10(b) period, the Union's conduct subsequent thereto establishes that it was a continuing demand. This contention is supported by the record. After making its initial request for recognition, the Union filed and processed a representation petition which in itself constitut- ed a demand and was evidence of a continuing request. American Compressed Steel Corp., 146 NLRB 1463, 1470-71, enfd. in relevant part 343 F.2d 307, 310 (C.A.3); Alterman Transport Lines, 178 NLRB No. 21, fn. 3. Throughout the period subsequent to its original demand the Union pressed for a resolution of the issues raised in the extended proceedings that arose out of the representation matter. Its actions at all times subsequent to February 28, 1970, were consistent with the demand for recognition which it made, originally, on December 30, 1969. The General Counsel also asserts, with some merit, that the conduct of the Respondent throughout the period in 5 The General Counsel voluntarily withdrew another card, that of Jean Voss, as an exhibit, after he conceded that Voss was no longer a member of the unit on the date to be considered in connection with the refusal to bargain issue. 6 The Respondent contends that Sleight's card should not be counted because her signature was printed rather than signed The blanks on the question made it unnecessary for the Union to reiterate its demand for recognition. In support of this contention there is the fact that in its telegram of January 14, the Respondent did not question the majority status which the Union claimed to have . Instead, the Company asserted that although the employees may have signed cards, it felt that in an election the employees would not vote for the Union and that, for this reason, the Respondent would refuse to recognize it until the Union was certified by the Board. This, of course, constituted an outright rejection of the Union's request without reference or regard to the number of cards which the IAM had secured. Thereafter, at the representation hearing and at the complaint hearing, the Respondent, in one instance through its counsel, and in the other through its president, reiterated that there had been no change in its position as to recognition of the Union. In view of the foregoing facts , from which it is clear that the Union has continued to seek recognition as the employees' bargaining agent and that at the same time the Respondent has continued to reject that request, the Trial Examiner, concludes and finds that at all times material herein, there was outstanding a continuing demand for recognition of the Union and a continuing refusal of this demand by the Respondent . N.L.R.B. v. Burton-Dixie Corp., 210 F.2d 199, 200-201 (C.A. 10); cf., Sobell Chemical Corporation v. N.L.R.B., 267 F.2d 922 (C.A. 2). 2. The unit and the majority issue As found earlier herein, the parties are agreed that a production and maintenance unit is appropriate. There is a dispute, however, as to whether one individual should be included within this unit as of February 28, 1970, the first day within the 10(b) period and the critical date for the purposes of determining majority status in this case. That individual was Timothy Paine, an employee of the Respondent who was on military leave at the time of the election. It was established that Paine left his job at the plant for duty with the United States Navy on June 21, 1968, and that he is scheduled for discharge in June 1972. At the time of the election on April 7, 1970, Paine appeared in person at the polls and, although his ballot was challenged, the Regional Director held, in conformity with a line of Board decisions, that Paine was eligible to vote and that the challenge to his ballot should be overruled. Emil Denmark, Inc., 121 NLRB 1370-72. On the other hand, and more relevant to the immediate issue, other Board decisions hold that for the purpose of determining majority status an employee on military leave is excluded from the unit. International Metal Specialties, Inc., 172 NLRB No. 39, fn. 8; Aero Corporation, 149 NLRB 1283, 1291; Greystone Knitwear Corp. and Donwood, Ltd, 136 NLRB 573, 575, fn. 3. Consequently, and in accord with the last cited cases, the Trial Examiner concludes that with respect to any unit calculation as of February 28, 1970, Paine should be excluded. With this exclusion there remained 19 employees card in question were filled out in ink and the writer printed all the letters rather than using a script . As noted earlier, Jackson credibly testified that he witnessed Sleight fill out the card and execute it. Under the circumstances, the Trial Examiner concludes that there is no merit to the aforesaid objection of the Respondent. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the appropriate unit on the aforesaid date. At that time, the Union had in its possession 11 valid authorization cards.? Since these cards were secured from the employees at a time when the Union's demand for recognition was outstanding, and none of the employees sought to, or did, revoke or rescind her card, the Board has held that such cards may be used in computing the Union's majority status. American Compressed Steel Corp., supra; Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB No. 52. Accordingly, as of February 28, 1970, the Union held valid authorization cards from a majority of the employees in the appropriate unit. C. The Alleged Violations of Section 8(a)(1); Analysis of the Evidence; Findings and Conclusions in Connection Therewith The General Counsel contends that during the period preceding the election and shortly thereafter, the Respon- dent engaged in numerous violations of Section 8(a)(1) of the Act. These allegations are denied by the Respondent in their entirety. To the evidence in connection with these issues we will now turn. As noted earlier, the initial representation hearing on the Union's petition was held on February 26. Both President Bush and employee Helen Deiter were among those who testified at that hearing, the latter as a witness for the petitioner. Bush conceded at the trial of the instant case that at the hearing on the representation matter Deiter gave testimony that was contrary to his. Evidence was offered at the present trial that Bush subsequently threatened to prosecute Deiter for perjury. Thus, Carol Smith testified that, during the week after the representation hearing, Bush told her that "Helen Deiter had lied at the hearing and that he could have her on three counts of perjury, and he was just being nice by not having her arrested." Employee Helen Deiter testified that about April 1, President Bush mentioned the subject to her and stated that he was going to charge her with perjury. Deiter testified that a few days later, however, Bush told her "Helen, . I am not going to have you court-martialed after all. Everything has gone in favor of our side..... Deiter did not testify as to whether this second conversation occurred before or after the election. The election, was held on April 7 and, as found earlier, the Union did not win. There was testimony from several employees that, prior to the election, President Bush promised wage increases in the event the Union lost the election and threatened to drop a Company bonus plan if the Union won. Thus, Carol Smith, an employee who has been quoted earlier, testified that during the conversation had with Mr. Bush the week after the representation hearing, or early in March, the plant president told her that although ,he could not make any promises at that time, the Company was Just starting to make money and "that raises in pay would come 7 These were the cards of Baham, Beardsley, Burger, Deiter, Klugh, Letson, Perry, Sleight, Smith, Shirley Truax, and Sonja Truax. 8 For some time, the Respondent has had a practice of paying a quarterly bonus to the employees in a section based on the number of hours saved on jobs completed by their unit during the preceding three months 9 Klugh was engaged in "brazing," an operation described by Mr Bush as low temperature welding. gradually." Employee Deiter testified that in a conversation which occurred about the first of April, Bush told her that "if the Union got in there would be no more bonuses." s Christine Klugh, another witness who was an employee during the period in question, testified that shortly before the election, President Bush had two conversations with her. According to Klugh, on the first occasion Bush complained to her that he was dissatisfied because work on the order on which she was engaged was not progressing rapidly enough. Klugh testified that thereafter she adjusted her equipments and by the following day had doubled her output. According to Klugh, after this occurred Bush spoke to her again and told her that if the Union did not win the election he would put her and the other employees on a piece rate so that she could make from $3.00 to $3.25 an hour. Klugh testified that at the time she was making about $1.85 an hour and that she related this conversation with Bush to Helen Deiter, a coworker. There was testimony that President Bush told some of the employees that, if the Union won the election, he might move the plant or dismantle the machinery. Thus, Deiter testified that, during the period shortly before the election, Bush told her that if the Union won he might move his machines out of the plant. According to Deiter, Bush stated "if the Union got in . . . he could move his machines out. . I can move them anytime and anywhere I want to. [Neither] you nor John Jackson [the IAM representative] can . . . tell me what I can do with my machinery." Deiter testified that she told some of her coworkers, including Carol Smith and Shirley Truax, about this latter conversa- tion with Bush. Mrs. Smith also testified that during the week prior to the election President spoke to her while she worked at her machine and that he expressed an inability to understand why the employees would want a Union. According to Smith, Bush told her that the union organizers were paid to lie to the employees, but that he could not say anything against the Union because it might be used against him. She testified that he then told her that "if he wanted to smash his machines, or if he wanted to move them to North Carolina, that he could move ..... Mrs. Smith further testified that after this conversation she discussed the substance of it with five or six coworkers and with Jackson at the next meeting which the Union held. The record also contains the testimony of employee Winifred Beardsley.i° According to the latter, about a week after the election Mr. Bush told her that he did not feel that the employees needed a union, that they were doing just as well without one and that the machines in the plant were his to do with as he pleased and if chose he could destroy them. Beardsley testified that she reported this conversation to Union Organizer Jackson. At the hearing Mr. Bush categorically denied any of the comments or remarks attributed to him by the employees io At the time of the hearing in the instant case, Beardsley was ill and unable to testify. However, the General Counsel and the Respondent stipulated that a portion of her testimony, given in July 1970 at the hearing on objections to the election, could be received as part of the record in the complaint case. This stipulation and the accompanying portion of the transcript of the hearing in the,, representation case were thereupon received. TRI-COUNTY TUBE, INC. 107 whose testimony is set forth above. On the other hand, he testified that he was "dumb-founded" to discover, early in January 1970 that his employees were interested in a union.11 He further testified that thereafter, although his attorney cautioned him that he should not express any threats or hold out any promises to the employees, he questioned his employees as to whether they had any grievances on the assumption that any interest in a union had been caused by dissatisfaction with their work. According to Bush, all of the employees with whom he talked during this canvass of their sentiment told him that they had no grievances and that they were happy to have employment. He also conceded that thereafter, at the representation hearing, employee Helen Deiter gave testimony which was contrary to that which he had given. Finally, whereas Mr. Bush denied having told any employees that he might move the plant if the Union won the election, he conceded that during the period in question he told others outside the employee complement that if his operation in Nunda became noncompetitive he would move. Employees Deiter, Smith, and Klugh, who appeared at the hearing and testified, were frank and convincing throughout the course of their direct examination and equally so during an extended cross-examination by able counsel for the Respondent. Moreover, at the time of the complaint hearing, none of them was any longer in the Respondent's employ. Since there was no evidence that any of them had been discharged or had quit other than of their own volition, there was no apparent reason for them to offer any testimony other than their honest recollection. On the other hand, the general and specific denials of Mr. Bush, when the latter was on the stand, were not similarly persuasive. It is of some significance that Mr. Bush conceded that he was, in effect, shocked to discover in January 1970 that the employees were interested in organizing a union and that thereafter he had numerous conversations with them to ascertain what grievances or dissatisfaction might have caused them to take this course. In the light of all the foregoing considerations and in view of the comparative demeanor of these witnesses when they appeared and testified, it is the conclusion of the Trial Examiner that Deiter, Smith, and Klugh were the more persuasive, insofar as their testimony is in conflict with that of Mr. Bush, and that the conversations in question occurred substantially as they testified.12 On the basis of the foregoing evidence, the Trial Examiner concludes and finds that the Respondent violated Section 8(a)(1) of the Act in the following instances: (a) By President Bush's threat, voiced to employee Smith late in February and to employee Deiter in March or April that he could prosecute Deiter for perjury because of the testimony she gave at the representation hearing. (b) By President Bush's threat to employee Deiter, on or 11 The quotation is from Bush's testimony 12 It is likewise the conclusion of the Trial Examiner that the stipulated testimony of Beardsley, set forth earlier, is more credible than that of Bush insofar as there is any conflict. 13 This statement may be entirely correct although it is not fully supported by the record. Mr. Bush did testify that, of all the witnesses who testified at the trial of the complaint case, only Virginia Baham was still on about April 1, that, if the Union won the election, bonuses might be eliminated. (c) By President Bush's remarks to employee Deiter, in March or April, to employee Smith early in April, and to employee Beardsley the week after the election to the effect that, if the Union organized the employees, he could move the plant to North Carolina, move the equipment out of the plant, or destroy the machinery, all of which conversations were subsequently related by Deiter, Smith, and Beardsley to their coworkers, or to the union representative. (d) By President Bush's statement to employee Smith, early in March, that although he could not make any promises at that time, because of the Union, raises for the employees would be forthcoming. (e) By President Bush's promises to employee Klugh that if the Union did not get in he would put her on a piecework rate that would enable her to earn substantially more than she was getting. D. The Alleged Violation of Section 8(a)(5); Contentions of the Parties; Findings and Conclusions With Respect Thereto The General Counsel contends that the Respondent violated Section 8(a)(5) of the Act by its refusal to bargain with the Union, that the Respondent's violations of Section 8(a)(1) of the Act are of such an aggravated character as to preclude the holding of a fair election and that the circumstances in this case require that the remedial order include a requirement that the Respondent bargain with the Union. The Respondent denies all allegations that it violated the Act and further contends that, in any event, any majority which the Union might have had was not dissipated by its actions. The Respondent argues that it made no attempt to delay the election in question; that, shortly after the Union's petition was filed, it executed a stipulation for a consent election and that it thereafter cooperated fully in expediting the representation matter. Finally the Respondent also asserts that 10 of the 11 employees whose cards were produced by the Union have voluntarily left the employment of the Company,13 so that a bargaining order entered at the present time would only result in the disenfranchisement of the Respondent's present employees.14 As found earlier herein, the Union's initial demand for recognition, first made on December 30, 1969, was a continuing one so that, notwithstanding the limitations imposed by Section 10(b), as of February 28, 1970, there was, in effect, a request for recognition and bargaining from the Union and a rejection of this request by the Respondent. Moreover, it has also been found that the production and maintenance unit for which the Union sought representative status was an appropriate one. Finally, it has likewise been found that as of February 28, 1970, the Union had secured valid authorization cards from the payroll. On the other hand, card signers Judith Burger and Ruth Sleight did not appear at the hearing, nor did Winifred Beardsley whose testimony was the subject of a stipulation. Consequently, from Bush's statement it is not clear whether any of the last three named were still employees of the Company at the time he testified on March 31, 1971. 14 President Bush testified that at the time of the trial in the instant case the Respondent currently had about 14 employees. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II of the 19 employees then in the aforesaid unit. Consequently, the Union had a majority on that date and thereafter the Respondent was obligated to recognize the IAM and bargain with it. In failing to do so, the Respondent violated Section 8(a)(5) of the Act. There remains for decision the question as to whether a bargaining order is warranted by the facts in this case. In reaching a conclusion as to this issue, a recapitulation of the sequence of events found to have occurred here is instructive. On April 7, 1970, the Board-conducted election was held and the Union lost by a narrow margin. The Trial Examiner has found that between February 28 and the date of the election, the Respondent, through President Bush, threatened employee Deiter with loss of bonuses if the Union won the election, promised employee Klugh that she would get a wage increase if the Union lost, and told employee Smith that although he could not make promises during the pendency of the election the employees could assume that, since the Company was beginning to make money, raises would be forthcoming. During the same period President Bush threatened employee Deiter with prosecution for perjury in connection with her testimony at the representation hearing, and told Deiter and Smith that if the Union got in he could move the machines out of the plant, move the plant to North Carolina, or dismantle the machinery. Subsequent to the election and while a resolution of the issues raised by objections to the conduct affecting the election was still pending, Bush reiterated remarks to employee Beardsley that were substantially similar to the threats which he had voiced to Deiter and Smith. The above-described action and conduct on the part of President Bush during the preelection period most certainly tended "to undermine [the Union's] majority strength and impede the election processes." N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 615. In the latter opinion the Supreme Court held that the decision as to whether a remedial bargaining order is warranted will depend on "the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." Gissel, supra, 614. In the present instance, since the violations in question were committed by the Respondent's principal executive officer, the prospects of their recurrence in another election contest are substantial. In these circumstances the Board has held that the unambiguous cards validly executed by a majority of the employees represent a more reliable index of employee sentiment as to the union issue than another election could provide and that effectuation of the policies of the, Act requires that the employer be required to bargain, upon request, with the union . United Packing Company of Iowa, Inc., 187 NLRB No. 132; WKRG-TV, Inc., 190 NLRB No. 34, Colonial Knitting Corp., 187 NLRB No. 134. 15 Whereas the Union had a majority in the appropriate unit,^on February 28, 1970 , the threats and promises voiced by President Bush thereafter must be, and are, held to have undermined this majority and prevented a fair election. By such conduct the Respondent violated both Section 8(a)(5) and (1) of the Act. In the light of the above-cited cases, the Trial Examiner concludes and finds that a bargaining order is required to remedy the effects of these unfair labor practices.16 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. -All production and maintenance employees at the Respondent's Nunda plant, exclusive of office clericals, professional employees, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 3. At all times since February 28, 1970, the Union has been the exclusive representative, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By the threats to employees of reprisal for supporting the Union and promises of benefits for refraining from such support, found heretofore to have been voiced by President Bush, the Respondent violated Section 8(a)(l) of the Act. 5. Since February 28, 1970, the Union has been the duly designated exclusive collective-bargaining agent of the Respondent's employees within the aforesaid appropriate unit. 6. By refusing at all times since February 28, 1970, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, and by the acts set out in paragraph 4, above, which undermined the Union's majority representative status and prevented a fair election, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. The above unfair labor practices affect commerce as defined in Section 2(6) and (7) of the Act. 8. The General Counsel has not proved by a preponder- ance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and conduct found herein to have been violated.17 15 Other cases cited by the Respondent in its brief, represent various divergent views as to somewhat comparable situations However, none of them is clearly applicable to the facts of the instant case Cf., N.L R B. v. General Stencils, Inc., 438 F 2d 894 (CA 2), Stoutco, Inc., 180 NLRB No. 11; Blade-Tribune Pubbrhing Co., 180 NLRB No. 56; Schrementr Bros, Inc, 179 NLRB No. 147. 16 In its brief the Respondent argues that because of substantial employee turnover in the past year a bargaining order entered at this time would result in the disenfranchisement of its present employees. This might have presented an appropriate matter for consideration had the Respondent refrained from unlawful conduct subsequent to the Union's demand for recognition As seen from the findings set forth above, however, Respondent's unlawful course of action does not merit a deviation from the general rule that the wrongdoer can not profit from a change in circumstances brought about by normal turnover in the plant complement. N L R B. v. Benne Katz, et al, 369 U.S 736. 747-748, In 16, NLRB v Mexia Textile Mills, Inc., 339 U.S. 563, 568; Franks Bros. Co v. N.LR B, 321 U.S. 702,705-706; N.LRB v. P. Lorillard Co., 314 U.S. 512, 513; N.LR.B v. Lou De Young's Market Basket, Inc, 430 F.2d 912, 915 (C.A 6); G P D, Inc v. N.LR B., 430 F 2d 963, 964-965 (C.A. 6) 17 E.g., the complaint also alleged that the Respondent promised its employees easy jobs, reemployment , and assistance in obtaining unemployment benefits if they refrained from affiliation with the Union or giving any assistance to it. However, the record contains no evidence to (Continued) TRY-COUNTY TUBE, INC. 109 THE REMEDY Having found that the Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights under the Act, the Trial Examiner recommends that the Respondent be ordered to cease and desist therefrom and to post notices so indicating. Having further found that by reason of such interference, restraint, and coercion the Respondent undermined the Union's majority representative status among its employees in an appropriate unit and prevented a fair election, the Trial Examiner will recommend that the Respondent be ordered to recognize and bargain with the Union, upon request, as the exclusive collective bargaining representative of its employees in the unit. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: ORDER's Tri-County Tube, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Directly or indirectly threatening unit employees with economic reprisal for supporting the Union, promising them economic benefits for desisting from such support, or otherwise interfering with, restraining, or coercing them in the exercise of their rights under Section 7 of the Act. (b) Failing or refusing to bargain collectively with the Union as the exclusive bargaining representative of its employees. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the aforesaid Union, as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees at the Respondent's Nunda plant, exclusive of office clericals, professional employees, guards and supervisors. (b) Post at its plant in Nunda, New York, copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 3, after being duly signed by the Respondent's authorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, mclud- mg all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.20 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. is In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 19 In the event that the Board's Order is enforced by a Judgment of 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 Enforcing an Order of the National Labor Relations Board." 20 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 said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you with loss of bonuses or any other benefits, or that we will move the plant from Nunda or dismantle the machinery if you vote for, or otherwise support, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, or any other union. WE WILL NOT promise you wage increases or any other benefits if you vote against or otherwise refrain from supporting the aforesaid union, or any other union. WE WILL NOT otherwise interfere with, restrain, or coerce you in the exercise of your right to self- organization, to form, join, or assist any labor organization, to bargain collectively through represent- atives of your own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. WE WILL, upon request, meet and bargain collective- ly with International Association of Machinists and Aerospace Workers, AFL-CIO, as your exclusive representative in the appropriate bargaining unit, regarding wages, rates of pay, hours of work, and other conditions of employment, and sign our name to an agreement containing any understanding reached. The bargaining unit is: All production and maintenance employees at our Nunda plant, exclusive of office clericals, profes- sional employees, guards, and supervisors. TRi-COUNTY TUBE, INC. (Employer) giving any assistance to it However, the record contains no evidence to Dated By support any such allegations (Representative) (Title) 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by or covered by any other material. -anyone.- Any questions,caneerning.this notice or compliance with This notice must remain posted for 60 consecutive days its provisions may be directed to the Board's Office, Fourth from the date of posting and must not be altered, defaced, Floor The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.