Flight Safety, Inc.

FLIGHT SAFETY, INC. Flight Safety, Inc. and Local 1430, International Brotherhood of Electrical Workers, AFL-CIO. Cases 29-CA-2204 and 29-RC-1539 May 30, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION 223 containing the names and addresses of all the eligible voters, must be filed by, the Employer with the Regional Director for Region 29 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER'S DECISION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On January 4, 1972, Trial Examiner Samuel M. Singer issued the attached Decision in this consoli- dated proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' and to adopt his recommended Order.2 Accordingly, we shall sustain the Union's objections in Case 29-RC-1539, set aside the election conducted on November 30, 1970, and direct a new election be held. 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 election previously conducted herein on November 30, 1970, be, and it hereby is, set aside. [Direction of Second Election3 omitted from publication.] i In affirming the Trial Examiner 's 8(a)(1) conclusions , we do not, nor did he, rely on Supervisor Gems' August 12 questioning of employees Podolsky, Carfi , and Borace, which took place before the filing of the representation petition on August 14 However, we do rely on the substance of these conversations to the extent that Gems admitted that he spoke to six or seven unit employees 2 or 3 days after August 12 and that the substance of the conversations was "essentially " the same as his conversations on August 12 West Texas Equipment Company, 142 NLRB 1358 2 The Respondent has excepted to certain credibility findings made by the Tnal Examiner It is the Board 's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings Respondent's request for oral argument is hereby denied as the record, the exceptions, and brief adequately present the issues and positions of the parties 3 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L.R B v Wyman -Gordon Co , 394 U.S 759 Accordingly, it is hereby directed that an election eligibility list, SAMUEL M. SINGER, Trial Examiner : This consolidated proceeding ' was tried before me in Brooklyn , New York, on October 4-6, 1971, with all parties participating throughout and afforded full opportunity to adduce testimonial and documentary proof, cross-examine, argue, and submit briefs. Subsequent to the trial and after time extensions on application, a brief was received from Respondent on November 22, 1971, which, together with the record as made at the trial, has been carefully considered. The complaint alleges and the answer denies that Respondent Company violated Section 8(a)(1) of the Act through interference, restraint, and coercion . Also alleged in the complaint is that Respondent unlawfully refused to bargain in violation of Section 8(a)(5) of the Act. Since the outcome of November 30, 1970, Board-conducted repre- sentation election hinges upon resolution of related issues in the complaint proceeding , the representation case (Case 29-RC- 1539) was consolidated for a hearing with the complaint case by an order of the Regional Director dated February 25, 1971, and transferred and continued before the Board in accordance with applicable provisions of the Board's rules and regulations . The instant proceeding thus encompasses both of those cases. Upon the entire record2 and my observation of the testimonial demeanor of the witnesses , I make the following: FINDINGS AND CONCLUSION-' 1. BUSINESS OF RESPONDENT ; LABOR OI .'ANIZATION INVOLVED Respondent Company, a New York corporation with principal office and place of business at LaGuardia Airport in the Borough of Queens, New York City, is engaged in the business of training pilots, servicing and fueling aircraft, and operating an air taxi service to carry passengers and freight between , as well as within, various States. It engages in similar types of service in Florida and California, but only the LaGuardia Airport Terminal is here involved. During the past representative year, Re- spondent derived gross revenues in excess of $500,000, over $50,000 of which were from services performed for the Armed Services and other agencies of the United States Government, and for major airlines, each of which is an instrumentality of commerce having a gross revenue in excess of $50,000 from interstate operations. i in Case 29-CA-2204, the complaint of February 25, 1971 , resulted from a charge filed on December 3, 1970 . In Case 29-RC-1539, an election with uncertain outcome in view of objections filed by Petitioner Union was held under Board auspices on November 30, 1970 2 Transcript corrected by my order on notice dated December 9, 1971 197 NLRB No. 40 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that the Union (Charging Party) has at all times been and is a labor organization within the meaning of Section 2(5) of the Act; and that jurisdiction is properly asserted in this proceeding. II. THE UNFAIR LABOR PRACTICES A. The Facts 1. The organizational dnve and Union's election loss Respondent employs approximately 400 employees at its nine training centers throughout the country, of whom about 80 are employed at LaGuardia Airport as mainte- nance men (the "simulator electronic technicians" here involved), flight instructors, clericals, etc. Albert Ueltschi has been president of the Company since it was organized in 1951. Bruce Whitman is executive vice president and Jack Lerch is vice president in charge of simulation systems at all Company installations. Joseph Gems is the director of maintenance and assigns work to some 16 simulator electronic technicians here involved, reporting directly to Lerch. Dissatisfied with working conditions, particularly a "wage freeze" effective on April 14, 1970 (infra, fn. 7), about a dozen simulator technicians designated employee Borace in July 1970,3 to contact the Union for "advice" and assistance. On July 27, Borace and another employee (Carfi) met in the latter's home with Union Business Representative Donovan. After discussing their "prob- lems," Donovan asked the two to sign union cards, explaining that the purpose of the cards was to show that they were "joining the union" and that after a majority of the technicians signed such cards, to represent the men and obtain recognition from the Company. Borace and Carfi signed the cards and received more cards to distribute among the technicians. By August 11, 14, or 15 employees had signed "Application for Membership" cards authoriz- ing the Union "to negotiate and conclude" a collective agreement on their behalf.4 On August 11, Union Representatives Donovan and Maude went to Respondent's premises. After identifying themselves, Maude informed Company President Ueltschi and Vice President Whitman that they represented a majority of the simulator technicians, displayed 14 or 15 authorization cards, and requested recognition. Ueltschi and Whitman glanced at the cards and Ueltschi, professing "complete surprise," rejected the recognition request .5 Ueltschi, however, agreed to meet with the Union again on August 14, hoping to consult with his attorney in the 3 Unless otherwise indicated, all dates are 1970. 4 Based primarily on the testimony of employee Borace as corroborated by Carfi, Donovan, and Union Business Manager Maude In addition to Borace and Carfi, General Counsel produced I I employees who testified that they signed authorization cards, altogether 14 cards were received in evidence. 5 Ueltschi testified credibly that this was "the first time" he had heard of the organizational dnve No union dnve had ever before been conducted at Respondent's premises 6 Findings in the above paragraph are based on the composite credited testimony of Ueltschi, Whitman, and Donovan interim. On August 13, he sent the Union a telegram cancelling the meeting, stating that Respondent had a "good faith doubt of the validity" of the Union's representation claim, asserting that involved was (among other things) the question of appropriate "bargaining units" and "the employees includable" in the units, and suggesting that the representation issue "be resolved through the procedures of the National Labor Relations Board." The next day (August 14), the Union filed its petition for an election .6 In the election held on November 30, 8 of the 16 eligible simulator electronic technicians voted for and 8 voted against the Union. On December 3, the Union filed its objections to the election. As already noted, after finding that the objections were similar to the charges in the unfair labor practice charges, the Regional Director on February 25 consolidated the two proceedings. B. Alleged Company Interference, Restraint, and Coercion during the Organizational Drive 1. The August 12 management meeting On August 12 (the day after Union Representatives Donovan and Maude requested recognition), Company President Ueltschi met with his attorney (Frank) for "guidance." Also present were Vice President Whitman and Maintenance Director Gems-the latter because Lerch (Gems' superior and vice president in charge of simulator maintenance) was on vacation. Ueltschi reported the Union's recognition request and asked Gems what he knew of the "problems" that led to the organizational drive. According to Gems, Ueltschi said, "You know, if a union is coming in here there must be some reason for it. What problems do we have?" Gems explained that he had been away from the plant on an extended bu: _iess trip and vacation until some 2 weeks before, but k- , v that certain "economic" problems had been raised by he technicians, including the wage freeze instituted in April 1970,7 hospitalization, vacation benefits, and free parking, noting these subjects on a pad as they were being discussed. Ueltschi asked Gems to talk to the men "to find out what the problems were within the department" and report back.8 Gems said that he "would do [his] best to secure the necessary information concerning the problems." Compa- ny Attorney Frank gave the group "a list of do's and don'ts," instructing the company representatives not to make any promises or threats or any inquiry into the subject of union membership or-support. 2. Supervisor Gems' employee interviews Around noon on the same day (Wednesday, December 7 Ueltschi issued a memorandum on April 14 to "all managers and department heads" at all company facilities explaining that in order to halt the continued downward profit trend, wage increases "shall be held in abeyance until we can get through this crisis." Respondent had customarily reviewed records and granted wage increases on employment date anniversaries The wage freeze was ultimately lifted in April 1971. 8 According to Vice President Whitman, "Ueltschi indicated to [Gems] that, perhaps [Gems ] should go back down to his office and report back to us with an idea of what the situation was with respect to what feelings the people might have about different problem areas." FLIGHT SAFETY, INC. 225 12), just after leaving his meeting with Ueltschi, Supervisor Gems spoke to Carfi and Podolsky, two union leaders at the terminal .9 Gems testified that he told the two he had dust come from a company meeting and that Ueltschi wanted him "to find out what problems there were which could . . . precipitate" the organizational drive; that if those problems were of "sufficient magnitude," Ueltschi would "sit down and discuss" them with the men; that although he was particularly interested in "any new problems," the two employees raised "long-standing" complaints-including the wage freeze ("the number one item"), which "had been the subject of discussion .. . from the day" it was announced; hospitalization, which the Company already "had investigated . . . at great length"; and others such as free parking. According to Gems, "[t ]here was a lot of give and take in the conversation" that lasted 45 or 60 minutes, but he promised no "improve- ments"; on the contrary, he said that if anything were to be done regarding the wage freeze and hospitalization, it would be done on a nationwide basis for all of Respon- dent's employees at all installations, which would be too costly. Further, according to Gems, he told the men that he did not "want to know" why they joined the Union (explaining at the hearing that "I didn't want to hurt anybody"). Although he assured them that no "disciplinary action" would be taken against prounion employees, he admitted telling them that "it would probably be easier to deal with Mr. Ueltschi if a union had not been interjected between us, a third party had not been interjected between us." (In a prehearing affidavit Gems also stated that he told employee Carfi that although he "could not make any promises . . . the Company could not make any effort to solve these problems without first finding out what they were"). Gems also admitted that he spoke to six or seven other simulator technicians in "the next two or three days," 10 "having tried to get everybody" although contact with "the midnight people was difficult" and that the substance of the conversations was "essentially" the same. However, he could not give "the specific details of each conversation," the dates, or the specific employees in- volved. Gems subsequently reported to Ueltschi that the men were "unhappy" about various matters, including the wage freeze, medical coverage, and parking. The testimony of employees Carfi and Podolsky differs in several essential respects. Both testified that Gems said he had dust come from Ueltschi's office and that he was authorized to speak for him and find out their "griev- ances"; that with a pad in hand listing various benefits (wage freeze, hospitalization, free parking, etc.), Gems asked which benefits they were "interested in" or "wanted most";11 that they "would" or "probably" could get more benefits from Mr. Ueltschi if they "kept the Union out" and dealt directly with Ueltschi; that Gems wanted the 9 The date is based on Gems' credited testimony. Carfi and Podolsky were uncertain as to the date, surmising it had been on a Thursday or Friday (August 13 or 14) 10 At a later point he stated, "it could be [that he held these talks on the third day, i.e., 3 days after August 12] but I don't think it was." Still later, he testified that he could not fix the dates "with any great exactness." ti While claiming that the pad listed benefits which he had noted in his meeting with Ueltschi, Gems testified that he had also added to this list other benefits mentioned by employees 12 Carfi testified that Union Representative Maude had advised him that men to get together and talk the matter over and then meet with Ueltschi; and that when told (by Carfi) that he "shouldn't be talking to us like this" since "it could be an unfair labor practice," Gems said that the Company's attorney had assured Ueltschi that "it was okay to speak" to the men.12 Podolsky admitted that he and other employees had discussed various problems with supervi- sors, particularly the wage freeze, prior to the advent of the Union, and that he was aware of a prior company study regarding introduction of hospitalization benefits. Carfi admitted that Gems said that no "disciplinary action" would be taken against anyone for joining the Union and that Ueltschi "thought we could do better without the Union." Later on the same day (August 12), employee Borace, who witnessed Gems' conversation with Carfi and Podol- sky,13 asked Carfi "what was happening." After Carfi described his conversation, Borace told Gems that he talk with Carfi and Podolsky "could be an unfair labor practice." Gems said he was "authorized" by the Compa- ny's attorney "to say what he said." According to Borace, Gems said that Ueltschi had remarked that it would be "a lot easier to deal without a union than with a union, and that we should really think twice about what we are doing." Gems did not specifically deny making this remark but recalled "briefly relating" to Borace what he told Carfi and Podolsky and telling Borace essentially what he had told those two men. Based on all the foregoing and my observation of the comparative demeanor of the witnesses, I credit the version of the incidents as given by Carfi and Podolsky where that version conflicts with Gems', except to the extent already indicated (fn. 9). The testimony of these two employees is mutually corroborative and also jibes on at least one critical point (favored treatment of employees if they dealt directly with Respondent rather than through a union) with that of employee Borace. Some of Gems' testimony -as, for example, the use he made of the pad as he spoke to the employees-was vague and confusing. So was his testimony as to the identity and contents of his talks with employees other than Carfi, Podolsky, and Borace (and the dates he talked with them). Gems impressed me as an individual who as a 'loyal member of the managerial hierachy was anxious to testify in a manner he regarded to be in the best interest of his Employer. 3. The August 31 company letter to employees On August 31, Respondent mailed its LaGuardia Airport terminal employees a letter from Company President Ueltschi commenting on the Company's rejection of the Union's recognition claim. The letter stated that designat- it,,g the Union as representative "would mean that [the "if the Company tries to offer us anything ... that [this ] was an unfair labor practice " In his prehearing affidavit, Gems admitted that Carft had raised the question of legality and that he (Gems) had responded as Carfi testified Gems' affidavit also adds, "I believe I did tell the employees that Mr. Ueltschi suggested this to me. I believe the meeting was my suggestion " 13 As previously noted (fn. 9), I credit Gems testimony as to the date of his conversation with Carfi and Podolsky . Gems was not, however, as definitive as to when he spoke with Borace, indicating on direct examination that he did not know "when it took place" and on cross- examination that at took place the next day, August 13 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD technicians ] have turned over to that union their right to speak for themselves-something I do not believe"; that if the Union came in the Company's "open door policy" and ability to communicate directly with employees would be jeopardized and "complicated to the employees' detriment, since union outsiders would not be intimately familiar with company-employee relations"; that "questions of wages and benefits . . . can be settled in a manner more advantageous to our employees on an individual basis, based on merit, rather than on the basis of a labor contract" and that it is "well known from a reading of the daily newspaper that belonging to a union can involve the loss of income due to strikes, the requirement to serve on picket lines, and to union fines, dues and other assess- ments." The letter also pointed to past company benefits, including Respondent's practice of permitting employees to take time off for personal reasons without loss of pay, its policy of refraining from laying off employees even in times of "financial difficulties," its training and promotion- al policies, and its fair treatment of employees "on the basis of merit." Ueltschi declared that "it is our firm intention to oppose this union by every proper and legal means" and that union employees will not receive better treatment than nonunion employees. Referring to the Company's prior (April 14, 1970) wage freeze (supra, In. 7), Ueltschi emphasized that it had been applied to all company employees and that it would be lifted "once financial difficulties have passed," pointing to such possibility in the immediate future in view of governmental statistics indicating that "the economy is on an uptrend" He also assured the employees that he "will be delighted to inform [them] when the Company's margin of profit permits the normal wage increases and improved fringe benefits such as additional life and medical insurance, etc."; and appealed to them to "join me in opposing the beginnings of unionism at Flight Safety." 4. The October 21 employer-employee meeting On October 21, at about 11 p.m. (between the afternoon and night shift change), Ueltschi called together the eight or ten employees he could reach and spoke to them for 60 to 90 minutes. He talked informally, from notes, but also answered employee questions. No other management representative was present. Ueltschi stated that he had been unaware of "any complaints from anybody .. . thought everything was going along smoothly, and all of a sudden he found out there was turmoil . . . and he wanted to see what he could do to help without bringing in an outside party" since he would "rather deal with [the employees] and [their] problems." Ueltschi recounted the history and growth of the Company, referred to his "open door" policy under which any employee could discuss his problem with management, and (according to employee Merrill's credited testimony) stated that he "likes to have a i4 Findings in the above and succeeding paragraph dealing with Ueltschi's meetings are based largely on the testimony of Merrill-an employee not closely identified with the Union (in contrast, for example, to Carfi and Podolsky) Memll impressed me as an honest, frank, and credible witness His testimony is in large part corroborated by other employees (Carfi, Borace, Eckel, and Podolsky) as well as by Ueltschi i5 While Podolsky on direct examination testified that he "believe[d]" close-knit organization with his workers and deal with them individually." Merrill also testified credibly that "Everybody seemed to have their own problem and they would bring up and ask what [Ueltschi ] could do about it." Among these, were the wage freeze, hospitalization, shift differential, better vacations, and free parking. Carfi and other employees testified that Ueltschi replied that he "hoped things would get better for the Company in the future and that he couldn't grant any immediate changes due to the financial position the Company was in at that time" and, accordingly, that he "couldn't promise any- thing." However, he indicated that "if things get better in the future he could see what he could do" for them. According to Ueltschi, he told the men that "the indications were that corporate business was beginning to pick up, and we hoped that as soon as we got ourselves back on our feet again that we would resume what we had been doing . . . through [out] the history of the Compa- ny." He also indicated that whatever changes were made would be for all employees, since "it would be unfair, for me to do something for a group of 15 or 20 people (i.e., the simulator technicians) and not do it for the other 380 people." 14 5. The Noverhber 23 employer-employee meeting Ueltschi again addressed employees on November 23. Present were 10 or 12 men and Company Vice Presidents Whitman and T "rch and Supervisor Gems. Ueltschi dwelt "basically" oi_ -e same theme as on October 21, and answered employee questions regarding benefits in similar vein. In addition to stating that he could not grant benefits because of the financial position of the Company, Ueltschi added that the pendency of the representation proceeding precluded it. According to Merrill's credited testimony, however, Ueltschi also said that "He'd do what he could to help us. He couldn't say he'd do anything because it would be an unfair labor practice, but he did bring up the fact that he didn't want a union in, and that we would be better off dealing with him personally than to have to go through- a representative." Supervisor Gems recalled Ueltschi saying that "he hoped that in the future when things were better . . . he could take some . . . sort of action, providing . . . he wasn't really strained." Vice President Lerch quoted him as saying that "as the company earnings permitted in the future he would always look to improving benefits for his employees." 15 Borace testified credibly that Ueltschi said he "didn' t want an outside party coming and telling him what to do, telling him how to run his business." According to Ueltschi, he said "I would rather work with our employees, because I am an employee myself, than have a union," disavowing a statement attributed to him by employee Carfi that he "would rather Ueltschi stated that the men "would probably get more benefits than if we dealt with the Union," it is apparent from his cross-examination that his recollection on this point was hazy and I do not credit this aspect of his testimony Thus, Podolsky later testified that Ueltschi "might have said you can get more " He did recall Ueltschi saying that "it would be better" for the employees as well as Company if the latter dealt "directly" with employees rather than the Union FLIGHT SAFETY, INC. bargain with the employees directly than through a union." 16 Further, according the Ueltschi, although he told the men he "hoped that they voted against the union," he assured them there would be "no reprisals" if the Union won. Vice President Whitman, who spoke briefly at the meeting, testified that he asked the men "for a vote of confidence in the election which was a week away." Carfi quoted him as saying that the vote will indicate whether the men "were with them [the Company] or against them." According to Merrill and Eckel, Whitman echoed Ueltschi's statements that Respondent would rather "deal" directly with the employees than with the Union. 6. The November 25 company letter; Company Vice President Lerch's alleged promise of benefits On Wednesday, November 25, (5 days before the scheduled Board election), Company Vice President Lerch handed to each simulator technician a letter signed by Company President Ueltschi, stating that this was his "last opportunity to communicate" with them before the Monday election; that the "election campaign had opened my eyes to problems . . . and I have benefited by that experience"; that as the employees knew, management was "opposed to unionization" and it "honestly believe[d ] that our problems can best be resolved without a union"; and that he urged the men "to vote against an outside organization becoming involved in our relationship." According to Lerch, Ueltschi asked him to "personally try to hand" out the letters "to insure" that they were not delayed by mailing over the Thanksgiving holiday weekend "so that each of the men could reflect upon that prior to his casting a vote the following Monday." Podolsky testified that after being sent to Lerch's office by Supervisor Gems, Lerch handed him the letter stating that the Company "would appreciate a no vote .. . [and] that we would be getting in the future [a] shift differential," i.e., premium pay for afternoon and midnight shift work.17 On cross- examination Podolsky admitted that Lerch did not indicate when the men would be getting the increased differential, nor that the benefit in any way depended on the outcome of the election. Lerch denied telling Podolsky that he and other technicians would be getting the higher shift differential, but admitted discussing with him "several of the benefit circumstances . . . that were at that moment ... prevailing as an issue," such shift differentials and vacation increases with which he should be "principally concerned" rather than with such "incidentals like park- ing." Although not entirely free from doubt, I am inclined to credit Lerch's version of the incident. It appears that of all witnesses called only Podolsky testified as to,any promise by Lerch while handing out the letters. Of the two employees specifically questioned on this point, one (La Pera) recalled that the conversation "more or less" 16 In its brief, Respondent stresses that Ueltschi's denial that he used the term "bargain" is supported by General Counsel employee witnesses as well as by testimony of company officials According to Respondent, "Ueltscht merely said he would rather deal with the employees directly than through a union " Although I credit the testimony that Ueltschi used the term "deal" rather than "bargain," I see no legal or practical significance in the use of one term as opposed to the other A bargaining representative "deals" or "bargains" on behalf of unit employees Indeed, the statute (Sec. 2(5)) 227 involved "the Company's feelings on the Union," but that benefits were not discussed. The other, Carfi (a devout union proponent), testified that in handing him the letter, Lerch told him "to wait until I left the premises before opening it and reading it." No reason appears why Podolsky alone should have been singled out for promising the shift differentials. B. Conclusions 1: The alleged 8(a)(1) violations The complaint alleges that Respondent through its officials, including Company President Ueltschi and Supervisor (Maintenance Director) Gems, interrogated employees concerning their union membership and activi- ties; threatened employees with reprisals if they remained members or assisted the Union; and offered or promised employees increased wages and improved working condi- tions in order to discourage union membership and activity. It is clear, and I find, that there is no reliable credible evidence supporting the first two allegations. The sole remaining issue is whether Respondent, particularly through Company President Ueltschi's letters and speeches to employees and Supervisor Gems' employee interviews concerning grievances and benefits-dunng the organiza- tion drive and after the Union's recognition demand-in- terfered, restrained, and coerced employees within the meaning of Section 8(a)(1) of the Act. For reasons to be stated, I find that they did. The applicable legal principles were thus stated by the Court in N.L.R.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383, 384 (C.A. 7), enfg. 179 NLRB 581: There is nothing violative of the Act in a Company's holding of meetings to determine employee grievances so long as "the discussions avoided any attempt by the Company to imply promises of benefit if the union was defeated." [Citing cases] . . . However, an 8(a)(I) violation is committed if the solicitation of employee grievances is "accompanied by an express or implied promise of benefits specifically aimed at interfering with, restraining, and coercing employees in their organizational effort" [citing cases], or if the survey includes inquiries concerning the employees' union interests [citing cases]." Elaborating on these principles, Chairman Miller in his concurring opinion in Raytheon Company, 188 NLRB No. 42, stated: When an employer who has not previously had a practice of regularly soliciting employee complaints suddenly embarks upon such a course during an election campaign, there is a strong inference that he is, in effect, promising to correct any inequities he discovers as a result of his inquiries, and impliedly urging on his employees that the combined program of defines the term "labor organization" as one "which exists for the purpose, in whole or part, of dealing with employers concerning grievances wages or conditions of work " (Emphasis supplied ) 17 Podolsky testified that a $25 monthly shift differential already prevailed and that Lerch really said "we would be getting a greater shift differential." A higher differential was subsequently put into effect in April 1971. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquiry and correction will make collective action unnecessary. His refusal to commit himself to what corrective action he will take . . . [does] not cure this evil, and indeed may even heighten the employees' anticipation of good things to come if only the election can remove the unwanted union from the picture. It is true . . . that there is nothing illegal per se in employer solicitation of grievances. Neither, obviously, is there anything illegal per se in an employer's improving the lot of his employees . . . But when the timing of either is such as to coincide with the origination of employee union activity then, absent affirmative showing of some legitimate business reason for the timing, it is not unreasonable to draw the inference of improper motivation and improper inter- ference with employee freedom of choice.18 In Reliance Electric Company, 191 NLRB No. 1, the Board adopted Chairman Miller's views in the following succinct language: Where, as here, an employer, who has not previously had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational campaigns seeking to represent employees, we think there is a compelling inference that he is implicitly promising to correct those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unnecessary. In issue here, therefore, is whether Respondent's conduct falls within the above-stated principles. The record established that, dissatisfied with wages and working conditions, Respondent's simulator technicians sought assistance from the Union. By August 11, the date of the Union's recognition demand, at least 14 of the 16 technicians had signed union cards plainly and unequivo- cally authorizing the Union to represent them and "to negotiate and conclude" a collective agreement on their behalf. The next day (August 12), Company President Ueltschi asked Gems, the employees' supervisor, what he knew of the problems prompting the organizational drive, explaining, "you know, if a union is coming in here there must be some reason for it." Gems mentioned the previous April wage freeze and hospitalization which were of particular employee concern, as well as other benefits such as vacations and parking. Ueltschi directed Gems to talk to the men "to find out what the problems were within the department" and to report back. Gems complied and on that same day (as well as on the following 2 or 3 days) tried "to find out what problems there were which could .. . precipitate" the organizational drive. He first spoke to employees Carfi and Podolsky, two leaders of the union movement, apprising them of his mission as emissary of the Company president. Although he assured them that he was not interested "why they joined the Union" and that no "disciplinary action" would be taken against prounion employees, Gems asked which benefits they were "interest- ed in" or "wanted most," indicating that they "would" or "probably" could get more if they "kept the Union out." IB Accord Texco, Inc v N LR B, 436 F 2d 520, 524 (C A 7), enfg 178 NLRB 434 According to Gems' own account, he told the two men that "it would probably be easier to deal with Ueltschi if a umon had not been interjected between us, a third party had not been interjected between us." Later the same day (August 12), Gems told a third employee (Borace) that it would be "a lot easier to deal without a union than with a union, and that [the men] should really think twice about what [they] were doing." Company President Ueltschi's letters and talks to the employees were more cautious and circumspect, but his message was equally clear-i.e., that they did not need to resort to collective or union action to rectify grievances. Repeatedly expressing opposition to unionism, as "some- thing I do not believe" in, he appealed to the men to "join me in opposing the beginnings of unionism at Flight Safety" and asked them (in his October 21 speech) "what he could do to help without bringing in an outside party" since he would "rather deal" directly with the men about their "problems." To be sure, Ueltschi stressed that he could not presently rectify or promise to rectify their economic grievances such as the wage freeze and hospitali- zation because of the financial condition of the Company, but he assured them that they would "be better off dealing with him personally than to have to go through a representative." Both in letter and speech, Ueltschi held out the hope that "once financial difficulties passed"- which he anticipated to be close at hand-he would rectify their grievances about vital matters of concern such as wages and medical insurance. Company Vice President Whitman in his brief remarks to the employees shortly before the election (November 23) similarly told the men that Respondent would rather "deal" directly with them. According to credited testimony, Ueltschi looked upon the Union as "an outside party coming and telling him what to do, telling him how to run his business." In my view, the "compelling inference" (Reliance Electric, supra) in this case is that Respondent's conduct was in substantial part motivated by a desire to wean its dissatisfied employees away from union action and to channel the Union's request for collective bargaining into Respondent's oft-expressed preference for individual and direct employee dealings. The import of Company Presi- dent Ueltschi's remarks was that they needed no union to remedy their working conditions or to receive the benefits previously withheld. And that which was implicit in Ueltschi's remarks was made explict in Gems'. Thus, Gems asked the two union leaders what benefits they "wanted most" and indicated that they stood to gain more if they "kept the Union out." He told a third union leader (Borace) that Ueltschi himself had said that it would be "a lot easier to deal without a union than with a umon, and that [the technicians] should really think twice about what [they] were doing." Under all of the circumstances-including the timing of the grievance solicitations immediately on the heels of the Umon's recognition demand, the unprecedented practice used to ferret out such grievances during the organizational drive,19 Company President Ueltschi's repeated assurances of employee advantages in direct employee (as distin- 19 While employee complaints had been the subject of discussion between management representatives and individual employees previously FLIGHT SAFETY, INC. 229 guished from collective) dealings with management, his promise to rectify employee complaints as soon as economic conditions warranted which he predicted as near, and the circumstance that the Union did, in fact, lose a significant number of adherents prior to the election 20_ I find and conclude that Respondent's grievance solicita- tions during the preelection period was calculated to undermine and undermined employee support for the Union. Respondent thereby interfered with and restrained employees in the exercise of their statutory rights of self- organization in violation of Section 8(a)(1) of the Act.2i 2. The alleged 8(a)(5) violation In addition to the 8(a)(1) allegations, the complaint alleges that Respondent unlawfully refused to recognize and bargain with the Union on the basis of a card check showing that it represented a majority of the employees. As noted (supra, sec. A,1), when the Union's representatives confronted Company President Ueltschi and Vice Presi- dent Whitman with the cards, they glanced at them and professing "complete surprise," Ueltschi rejected the recognition demand, consenting, however, to meet with the Union later.22 There is no evidence that any Company official had been aware of the organization drive before- hand. Ueltschi then consulted with his attorney and, based on the latter's advice, suggested that' the representation issue be resolved by a Board election. The Union then filed its election petition. I agree with Respondent's position that Respondent "acted within its rights by insisting that the question of representation be resolved through the procedures of the Board." As stated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 579, "When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the Union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself." The credited evidence establishes that Respon- dent had no independent knowledge of the Union's majority status although a vast majority had in fact signed valid authorization cards. There still remains the question whether a bargaining order is appropriate in this case to remedy the 8(a)(1) violations found (supra, sec. B, 1). As the Board stated in and Respondent did not discourage such discussions under its "open-door" policy, there is no evidence that management representatives (certainly not the top official, Ueltschi) had ever initiated or embarked upon group discussion of grievances 20 It will be recalled that at least 14 of the 16 unit employees had designated the Union as their bargaining representative in clear and unambiguous language , the Union lost the election by an 8 to 8 tie vote 21 Respondent in its brief relies on the recent decision of the Sixth Circuit Court of Appeals in Sears Roebuck and Company v. N L.R B, 450 F 2d 56, reversing the Board's decision that the solicitation of employee grievances and their correction during an organizational drive involved in that case was violative of the Act The court's decision and rationale appear to conflict with decisions of the Board and of the Seventh Circuit Court of Appeals, supra As a Trial Examiner of the Board, I am, of course, bound by Board precedent See Lenz Company, 153 NLRB 1399, 1401, The D & M Company, 181 NLRB 173 In any event , one significant distinguishing Garland Knitting Mills of Beaufort, South Carolina, Inc., 178 NLRB 396: [T ]he Supreme Court in Gissel, supra, approved the Board's authority to issue a bargaining order to redress unfair labor practices "so coercive that, even in the absence of a Section 8(a)(5) violation , a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices ]." Additionally, in circumstances where the unlawful conduct is less flagrant in nature, the court held that the Board may find an 8(a)(5) violation and issue a bargaining order where "the possibility of erasing the effects of [the] past practices and ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight and .. . [therefore ] employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order .. . In my view, the unfair labor practices here found are not of such egregious and pervasive character as to render a fair rerun election impracticable or unfeasable after their dissipation in accordance with conventional remedial procedures. Accordingly, I find and conclude that it is unnecessary to repair the unfair labor practices found through a bargaining order. Cf. Garland Knitting, supra. See Schrementi Bros., Inc., 179 NLRB 833, 854; Arcoa Corporation, 180 NLRB 1 ; N.LR.B. v. General Stencils, Inc., 438 F.2d 894, 901-904 (C.A. 2). III. CONDUCT AFFECTING THE RESULTS OF THE NOVEMBER 30 ELECTION As stated at the outset of this Decision, the Regional Director consolidated the representation and complaint proceedings since both presented like issues. Having found that certain conduct of Respondent constituted interfer- ence, restraint, and coercion violative of Section 8(a)(1) of the Act, I further find that such conduct also interfered with the exercise of a free and untrammeled choice in the election held on November 30.23 Accordingly, I recom- mend that the election held on that date in Case 29-RC-1539 be set aside and that a new rerun election be conducted for this as well as for the reasons set forth supra (sec. II, B, 1). CONCLUSIONS OF LAW 1. Under the circumstances shown, by conducting meetings with employees for the purpose of hearing employee grievances or complaints, questioning employees feature in Sears is that the court there found no evidence of any support for the union in the department involved (only one employee had signed a union card) and, therefore, that the finding that the employer there sought to "persuade employees to abandon support for the Union" was unwarrant- ed Here, on the other hand, it is clear that the Union had enjoyed overwhelming support (at least 14 of the 16 unit employees had signed cards authorizing it to act on their behalf) before Respondent embarked upon its campaign of grievance solicitation. 22 The credible evidence does not support a finding that either company official checked the signatures on the cards against any payroll or other company record, as suggested by one of the union representatives. 23 Since Gems' August 12 questioning of employees took place before filing of the representation petition (August 14), I do not rely thereon, except for background purposes. See Ideal Electric Co., 134 NLRB 1275, Reliance Electric Company, supra, 191 NLRB No. 1, fn. 8. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and soliciting from them grievances or complaints, and impliedly promising to rectify them without resort to collective or union action-all in order to discourage employees from supporting or voting for the Union-Re- spondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Said unfair labor practices also interfered with the exercise of a free employee choice in the November 30 election in Case 29-RC-1539. 4. It has not been established that Respondent unlaw- fully refused to recognize and bargain with the Union in violation of Section 8(a)(5) of the Act; nor that it violated Section 8(a)(1) of the Act by interfering with, restraining, or coercing employees through unlawful interrogations concerning union membership and activities and threats of reprisals for retaining membership or engaging in union activities. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take affirmative action customarily required to remedy unfair labor practices of the nature found. Since such unfair labor practices interfered in the exercise of a free choice in the November 30 election, I shall also recom- mend that that election be set aside and a new election be conducted. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act. I hereby make the following recommended: 24 ORDER Flight Safety, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conducting meetings with and questioning employees for the purpose of soliciting their grievances or complaints and directly or impliedly promising them benefits or improved working conditions from such grievance solicita- tion, where an object thereof is to discourage its employees from supporting or voting for Local 1430, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business at LaGuardia Airport, Queens, New York, copies of the attached notice marked "Appendix."25 Copies of said notice, on forms provided by the Regional Director for Region 29, shall be posted by Respondent, after duly being signed by its authorized representative, immediately upon receipt thereof, and be 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. (b) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.26 IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. IT IS FURTHER ORDERED that the Union's objections in Case 29-RC-1539 be and hereby are sustained and that a new election be held at a time and place to be determined by the Regional Director. 24 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, recommendations, 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 25 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 26 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply therewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we, Flight Safety, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice and comply with its terms. The National Labor Relations Act gives you, as employees, certain; rights, including the right to self-organization and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT conduct meetings with you, or question you, for the purpose of soliciting your grievances or complaints, nor directly or indirectly promise you benefits or improved working conditions resulting from such grievance solicitation, in order to discourage you from supporting or voting for Local 1430, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any Iii-e or related manner interfere with the exercise of your organizational rights. All of you are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, as guaranteed by Section 7 of the National Labor Relations Act. In view of the unfair labor practices found, the results of the election held on November 30, 1970, have been set aside by the National Labor Relations Board and a new election will be held at a time and place to be determined by the Board's Regional Director. FLIGHT SAFETY, INC. 231 FLIGHT SAFETY, INC. This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- Dated By mg this notice or compliance with its provisions may be (Representative) (Title) directed to the Board's Office, 16 Court Street , Fourth Floor, Brooklyn, New York 11241, Telephone This is an official notice and must not be defaced by 212-596-3750. anyone.