Ring Metals Co.

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ring Metals Company and District No. 9, Internation- al Association of Machinists and Aerospace Work- ers, AFL-CIO. Case 14-CA-6354 August 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On October 29, 1971, Trial Examiner Arnold Ordman issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order only to the extent consistent herewith. The Respondent is engaged in the manufacture of metal frames, rings, and related products at its plant in St. Charles, Missouri. The St. Charles plant had been in operation approximately a year when the initial union organization began on July 6, 1971. On that date Machinists representatives distributed handbills to employees outside the plant attached to which were union authorization cards. On July 9, 1971, the Union received through the mail signed and dated authorization cards from 9 of the 10 employees working in the production and mainte- nance unit' at the plant. On July 12, 1971, union representatives visited the plant for the purpose of meeting with Plant Manager Ferrante but found that he was on vacation and left for his attention a written request for recognition of the Union. The next day Ferrante returned from his vacation, learned of the demand, and addressed the employees in the lunchroom at the close of their lunch break. Ferrante told the employees that he understood that they had been approached by the Union and asked ,whether they were committed in any way to the Union at that time. Ferrante told the employees that he had nothing against the Union and could not tell the employees what to do, but then offered his opinion that it would not benefit the employees to have a union. Ferrante explained that Respondent was a small company and was having a hard time 1 We find, in accordance with the stipulation of the parties, that the Respondent's production and maintenance employees constitute an appropriate unit for collective bargaining dust keeping its head above water. He then told the employees that he had been trying for some time to get them more money and would continue to do so. He said that he was going to meet with the Company that night and would renew his attempts to get the employees more money, an incentive plan, and a profit-sharing plan. However, in view of Respon- dent's economic situation at that time, Ferrante asked the employees if they would be willing to wait until December for their raises. Ferrante then informed the employees that, if they had any complaints, they should bring them to him because that was what he was there for, to handle employee grievances and complaints. Ferrante then suggested that the employees appoint a spokesman to transmit their grievances to him. That afternoon the employees discussed Ferrante's proposals among themselves and appointed Hays as their spokesman. Immediately after the afternoon break period, Hays approached Ferrante and in- formed him that the employees were not interested in the proposed incentive plan but definitely wanted an hourly wage increase. Ferrante told Hays that he would write that down because he was going to the meeting with the Company that night and reminded Hays that, if there was anything else, to come to him, because he would take all of the employees' grievances or complaints. Ferrante then asked Hays what she thought, in response to which she related her personal opinion about the consequences of unionization 2 and added that the group had decided to talk to the Union but also to await Ferrante's answer from the Company. The following day Ferrante came up to Hays at her work station and told her that he had talked to the Company, that management was seriously considering the employ- ees' proposals, and that a decision would be made the following week. On July 23 Ferrante approached Hays with a letter from the Board's Regional Office containing the charge which had been filed in this case and the Board notice regarding a representation petition which had been filed by the Union. Ferrante told Hays that he had asked the Company about the raise as he had promised but that the Union had filed a petition for a vote and also had filed some unfair labor practice charges against the Company and until these matters were cleared up the Company could not offer any type of salary increase or other benefits and that his "hands were tied." On these facts the Trial Examiner concluded that the General Counsel had failed to prove the allegations of the complaint and recommended that 2 Hays testified that Ferrante asked her "what [she] thought." Ferrante testified that Hayes volunteered her personal views of the consequences of unionization 198 NLRB No. 143 RING METALS COMPANY 1021 the complaint be dismissed in its entirety. The General Counsel contends that the Respondent violated Section 8(a)(1): (1) by Ferrante's interroga- tion of the employees at the meeting on July 13 regarding their committments to the Union; (2) by Ferrante's statement at the same meeting regarding wage increases , an incentive plan, and a profit- sharing plan ; (3) by Ferrante's request that the employees bring their grievances and complaints to him; (4) by Ferrante's interrogation of employee Hays, and (5) by Ferrante's statement to Hays on July 23 that the Respondent could not offer wage increases or other benefits because of the filing of unfair labor practice charges and a petition for an election by the Union. The General Counsel further contends that the Respondent violated Section 8(a)(5) of the Act by its refusal to bargain and that a bargaining order is warranted because the unfair labor practices have precluded the holding of a free and fair election. Contrary to the Trial Examiner we find that Ferrante's inquiries with regard to whether the employees were committed to the Union and to Hays with regard to what she thought clearly constitute instances of unlawful interrogation and must be considered as violations of Section 8(a)(1) of the Act. We further find that Ferrante unlawfully solicited employee grievances and promised employee bene- fits at the July 13 meeting . It is obvious that Ferrante met with the employees on that date because of the Union's demand for recognition the previous day. There is no evidence that Respondent had previously held meetings with its employees for the purpose of discussing employee complaints and there are indica- tions in the record that it had not. Thus Hays testified that an employee, Alston, had remarked to Ferrante at the meeting on July 13 "that she could not understand why we had never had any meetings of this type previous to this day ...." In addition, Ferrante told the employees that he would communi- cate their grievances to higher management that evening, that he was there to take care of their grievances, and suggested that the employees appoint a spokesman to transmit grievances to him . In these circumstances we conclude that Ferrante implied to employees that their desires for higher wages and other benefits would be taken care of, and where, as here, an employer who has not previously had a practice of soliciting employee complaints, institutes such a practice to coincide with an organizational campaign , the employer has engaged in improper interference with his employees ' freedom of choice in violation of Section 8(a)(1).3 We further find that Ferrante's announcement to Hays on July 23 that any benefits would have to be withheld because of the filing of the charges and the election petition was unlawful. On July 13 Ferrante told Hays that he intended to present the employees' request for wage increases at a meeting with Respondent that evening. On the following day Ferrante reported to Hays that the Respondent was seriously considering the employees' request and would report back to Hays the following week. On July 23 Ferrante told Hays that because of the filing of the unfair labor practice charge and election petition by the Union, the Respondent's hands "were tied" with respect to this matter and there would be no increases until these matters were settled. In our opinion the plant manager's entire course of conduct, with respect to the increase, was calculated to lead employees to believe that wage increases would be forthcoming upon rejection of the Union. The wage increase question was viewed by all parties as a highly significant issue. Ferrante, through his conversations with Hays, led employees to believe that higher management would give careful consider- ation to his request for an increase, that a determina- tion would be made shortly, and that the employees would then be informed of management 's determina- tion. At the appointed time, Ferrante approached Hays and without stating that management had rejected the increase on economic grounds merely indicated that no increase would be forthcoming until the union matter was settled. From this, employees would rightly have assumed that manage- ment had not rejected the increase on economic grounds, but that the Union's presence was the only obstacle to realization of these benefits. In these circumstances Ferrante's announcement that any benefits would have to be withheld because the Union had filed unfair labor practice charges against Respondent was improper interference with the employees' Section 7 rights and violative of Section 8(a)(1).4 We do not believe, however, that the violations of Section 8(a)(1) we have found herein are sufficient to justify the issuance of a bargaining order under the standards set forth in the Gissel case.5 We have found two instances of interrogation which, while unlawful intrusions into the employees' rights, were not extensive, nor were they done under circum- stances which would have a lingering effect on the employees. Similarly, while the solicitation of griev- ances on the one occasion cannot be countenanced by the Board, we are persuaded that its impact on employees in casting ballots in a secret election would be minimal. And while the implied promise of benefits contained in Ferrante's discussion with the 3 Reliance Electric Company, 191 NLRB No I Company, 174 NLRB 770 4 Sinclair & Rush, Inc, 185 NLRB No 9, The May Department Stores 5 N LR B v Gissel Packing Company, 395 U.S. 575. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees and the later withdrawal of any benefits which might otherwise have been granted were violative of the Act, such promised benefits were so vague at that point that they could not have had a substantial effect on the employees, and would obviously have been the subject of further effective discussion during any future election campaign. We therefore believe that the fact that these unfair labor practices occurred would not have precluded the holding of a fair election and that, in any event, any residual effect stemming from them could be dispelled by our traditional remedies for such unfair labor practices. Accordingly we shall not issue a bargaing order in this case. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act , we shall order that Respondent cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following: CONCLUSIONS OF LAW 1. The Respondent, Ring Metals Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees with regard to whether they had committed themselves to the Union, by interrogating an employee about the Union, promising benefits to the employees, with- holding increases in wages, and informing employees that the increases could not be considered because of the Union, and by soliciting the presentation of grievances to discourage its employees' designation of a union representative, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. (a) Interrogating employees in any manner which constitutes interference in violation of Section 8(a)(1) of the Act. (b) Promising or implying to its employees that they will receive benefits, economic or otherwise, in the event that they repudiate union representation in collective bargaining. (c) Soliciting the presentation of grievances and indicating that such grievances will be adjusted in order to discourage employees from designating a union as their collective-bargaining representative. (d) Withholding increases in wages or other benefits from employees and informing employees that such increases or benefits cannot be granted because of the Union. (e) In any like or related manner interfering with the rights of employees guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in St. Charles, Missouri, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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 the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In the event that this 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Ring Metals Company, St. Charles, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: WE WILL NOT promise or imply to our employ- ees that they will receive benefits, economic or otherwise, if they repudiate union representation in collective bargaining. WE WILL NOT solicit the presentation of grievances and indicate that such grievances will be adjusted to discourage our employees from RING METALS COMPANY designating a union as their collective-bargaining representative. WE WILL NOT withhold increases in wages or other benefits from our employees or inform our employees that such increases or benefits cannot be granted because of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collec- tively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. RING METALS COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions, may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622- 4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Trial Examiner: This case was tried at St. Louis, Missouri, on September 20, 1971.1 The charge was filed by the Union on July 19, complaint is dated August 6, and Respondent's answer August 10. The primary issues are whether the Company, the Respondent herein, (1) unlawfully interfered with its employees' organizational rights by interrogation, promises of benefit, and related conduct in violation of Section 8(a)(1) of the Act; and (2) refused to bargain with the Union as the representative of its employees in violation of Section 8(a)(5) of the Act. Upon the entire record 2 including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and the Company, I make the following: I All dates are in 1971 unless otherwise stated 2 Following the hearing, General Counsel filed an unopposed motion to correct the transcript in the following particulars Page 62, line 4 , change "Organization" to "Authorization", page 81 , line 24, change "figures" to "figured"; page 109, line 16, change `on" to "one " The motion is granted FINDINGS OF FACT 1. JURISDICTION 1023 The Company, a Missouri corporation, manufactures, sells, and distributes metal frames, rings, and related products at its plant in St. Charles, Missouri. More than $50,000 worth of goods and materials are shipped, respectively, to and from that plant across state lines. The Company admits, and I find, that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS A. The Organizational Campaign The relevant evidence is largely undisputed. On July 6, 1971, as a result of a letter received by the Union requesting that it start an organizational campaign at the Company's plant, the Union distributed handbills to the Company's employees as they were leaving the plant at quitting time, 4:30 p.m. The handbill urged that the employees protect their wages and working conditions, and sign an authorization card attached to the handbill which unequivocally designated the Union to act as their collective-bargaining representative for wages, hours, and working conditions. Within the next few days 9 of the 10 employees stipulated by the parties at the hearing as constituting the appropriate unit signed such authorization cards which were turned in to the Union.3 Thereafter, on the morning of July 12, James M. Bagwell, business representative of the Union, accompa- nied by Steinbeck, another union business representative, went to the plant and spoke to a Mr. Walling. The union representatives introduced themselves and stated they were there to request recognition of the Union as representative for the production and maintenance employees. Mr. Walling replied that he was merely filling in for Nick Ferrante, the plant manager, who was on vacation and would return the following day. Thereupon Bagwell gave Walling his business letter and a standard form of recognition letter for transmission to Ferrante. Bagwell asked Walling to tell Ferrante that the Union represented a majority of the employees and that "he should not take any steps whatsoever to discuss their working conditions or anything else pertaining to their employment until he had spoke with us." Walling said he would transmit the message. Two days later on July 14, Bagwell returned to the plant, this time accompanied by Hammond, grand lodge repre- sentative of the Union. They met with Plant Manager Ferrante who acknowledged receiving Bagwell's business card and his request for recognition. According to Bagwell's testimony, the following conver- sation ensued. Ferrante stated that he had gotten together 3 A number of the cardsigners attached their signatures on July 7 but dated the cards July 8 pursuant to an understanding among themselves It is clear that a majority of the employees in the appropriate unit designated the Union as their collective-bargaining representative. No contention is made to the contrary 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the employees, that the employees had decided they did not need a union; that they had only one grievance and he took care of that. Bagwell told Ferrante that such conduct may have been an unfair labor practice because Respondent's bargaining obligation ran to the Union as majority representative. Bagwell further offered to prove the Union's majority to a neutral party. Ferrante declined, saying he did not know whether the employees had signed cards or not, and that the Union would have to get in the plant through a Board election. Ferrante also said he would not "sign the recognition." On this note, Bagwell and Hammond left with the comment that they would be talking to Ferrante in the future. Ferrante's testimony as to the July 14 meeting with Bagwell and Hammond was not materially different. On the question whether Bagwell had offered to prove the Union's majority status, Ferrante testified that Bagwell said he had cards, but Ferrante did not remember Bagwell offering "to show me any proof." Similarly, Ferrante did not recall telling Mr. Bagwell that "we didn't need a union," or that the employees had only one grievance which he took care of, but did remember saying that "whatever the problem they [the employees] had I would take care of it." The variance between the two versions of the July 14 conversation hinges largely on Ferrante's inability to recall parts of the conversation. I credit Bagwell's testimony as to this conversation. Following the conversation Bagwell and Hammond returned to the union office. That evening Bagwell called an employee who told him that Ferrante had met with the employees, had questioned them as to their union activities, and had promised them benefits. On this basis the Union filed the instant unfair labor practice charge dated July 19. Bagwell on July 14 also told Forrest Brandon, another grand lodge representative, of his conversation with Ferrante and the following day, July 15, the Union filed a petition for certification. The petition for certification was withdrawn on September 3. B. The July 13 Meeting Between Ferrante and the Employees, and Related Matters As Walling had indicated, Plant Manager Ferrante returned to the plant on July 13 and was told of Walling's conversation with the union representatives the day before. At 12:30, at the conclusion of the lunchbreak just as the bell rang for return to work, Ferrante appeared at the lunch table located in the plant where most of the employees ate, and asked the employees to remain seated while he spoke to them.4 All the girls were present except for one who was out on sick leave. Ferrante stated his understanding that the employees had been approached by the Union to organize and asked whether the employees had committed themselves to the Union. Employee Patricia Hays replied that they had 4 Several of the employees testified as to this meeting as did Ferrante. The accounts vary only in minor and immaterial detail 5 Ferrante denied suggesting that the employees appoint a spokesman for grievances but admitted stating that "anytime they had_a complaint or suggestion to come to me as an individual or as a group and I would be glad to take care of it for them " I regard the difference as one turning largely on agreed to talk to the Union. Ferrante emphasized that he had nothing against the Union and was not telling the employees what to do or not to do. He alluded to the fact that Respondent was a small company and that it would not benefit the employees to have a union. It rapidly developed that money was the main issue. Ferrante explained that he had been trying all the time to get more money for the employees, that the Company was having a hard time just keeping its head above water, and that he was going to attend a company meeting that night at which he would again repeat his plea for more money. He also asked the employees if they would wait until December for raises in view of the Company's financial posture. The employees indicated their dissatisfaction with this proposal. The possibility of incentive raises or a profit- sharing plan was raised by one of the employees. Other employees rejected this suggestion. More conversation along this vein ensued. Ferrante said he would transmit the proposals to the Company at the meeting that night, and asked whether there were any other gripes or grievances. Ferrante said he was ready to entertain any grievances and suggested that the employees could designate a spokesman for this purpose rather than have the whole group act.5 Following this luncheon meeting, the employees at their 2:30 workbreak discussed the matter, agreed to reject incentive and profit-sharing proposals in favor of an hourly wage increase, and designated Patricia Hays as their spokesman to transmit this information to Ferrante. Hays did so immediately after the workbreak. Ferrante wrote down the information, undertook to transmit it to the Company, and inquired as to whether there was anything else. Ferrante also asked Hays what she thought.6 Hays replied for herself and added that, so far as the group was concerned, the employees would await the Company's answer, confer with the Union, and then make their decision. The following day July 14, Ferrante came to Hays while she was working at her machine, told her that he had transmitted the employees' proposals to the Company the previous evening, that the proposals were receiving serious consideration, and that a determination would be made the following week. Ferrante said he would promptly inform Hays as to the decision. The following week, on July 23, Ferrante again ap- proached Hays. Ferrante, who had some papers in his hand, told Hays in her capacity as spokesman for the employees that the Union had filed unfair labor practice charges against the Company and also an election petition, that until these matters were cleared up, the Company could not offer any type of salary increase or any other benefit, and that his "hands were tied." He showed Hays a Board election notice which he proceeded to post on the bulletin board above the plant timeclock. differing interpretations of the particular words used . In fact, the employees did designate Patricia Hays as their spokesman 6 Hays testified that she understood Ferrante to be asking about her views about the Union Ferrante denied asking such a question The record does not afford sufficient basis for finding that Ferrante interrogated Hays as to her union sympathies RING METALS COMPANY At no time during any of these conversations with the employees, or with Hays separately, did Ferrante promise. a raise or other benefits to the employees beyond his commitment to press the employees' demands upon the Company. In fact, apart from 5-cent increases given new employees after 6-week periods, no raises were given' although Ferrante, even before the Union's organization's began, had advised employees that he was hopeful of raises when the Company's financial situation improved and had discussed such proposals with company officials. C. Concluding Findings 1. The alleged interference, restraint, and coercion General Counsel alleges in his complaint and urges in his beef that the Company interrogated, promised benefits to, and offered to take grievances from, the employees at the July 13 meeting and engaged in like conduct with respect to an employee in order to discourage union activity in violation of Section 8(a)(1) of the Act. Insofar as the meeting of July 13 is concerned, I find that Plant Manager Ferrante's speech and comments to the employees were not violative of the Act. In view of the fact that Ferrante had been apprised of the Union's organiza- tional effort and its request for recognition, his inquiry of the employees as to whether they were committed to the Union does not fall in the posture of coercive interrogation especially when couched in the context of his assurance that he had nothing against the Union and was not telling the employees what to do or not to do. Similarly, his statement to the employees that he would transmit their demands for a wage increase or other benefits to the Company can scarcely be considered a promise of benefit particularly in view of his recital of his previous efforts to obtain such benefits, his report of the Company's financial difficulties, and his suggestion that benefits, if any were forthcoming, were unlikely before December. In fact, the record is clear that no benefits were promised and none was given. The employees understood what Ferrante plainly conveyed, namely, that he would transmit their proposals to the Company and that he would let them know what the Company decided. That Ferrante in this frame of reference welcomed and even asked for other gripes or grievances can scarcely be assimilated to an unlawful solicitation of grievances. In sum, I conclude that in the circumstances here presented, Ferrante's talk to the employees on July 13 amounted to no more than a ,permissible expression of views and opinions and con- tained neither threats of loss nor promises of benefit. See. Texaco, Inc., 178 NLRB 434,7 Ferrante's conversations with employee Hays on July 13 and July 23 fall in the same category: Hays on the afternoon of July 13 merely elaborated on the discussion which Ferrante had in his meeting with the employees earlier that day and Ferrante as before promised nothing' more than to transmit the employees' desires to the Company so that they could, as they had indicated, confer with the Union as to their future action. In the absence of any promised or previously scheduled 7 In his brief General Counsel cites numerous cases to establish that coercive interrogation, promises of benefit, and solicitation of grievances constitute violations of Section 8(a)(1) of the Act. This is, of course, correct 1025 wage or other benefits, Ferrante's statement to Hays on July 23 that the filing of an unfair labor practice charge and a representation petition precluded any grant of benefits and that his "hands were tied" was altogether proper. Indeed, any unilateral grant of benefits in these circumstances could properly be regarded as an effort to coerce the employees into rejecting the Union as their bargaining representative. In the context of a forthcoming representation proceeding, the Company had no other option. I conclude that a violation of Section 8(a)(1) of the Act has not been established. 2. The alleged refusal to bargain The parties stipulat8d and I find that the Company's production and maintenance employees, with the custom- ary exclusions as set forth in the pleadings, constituted an: appropriate unit and that there were 10 employees in that' unit. Nine of these ten employees signed authorization cards, unequivocally designating the Union as their collective-bargaining representative. The Union requested recognition on the basis of its card showing and the Company through its plant manager denied the request, on the basis that it was not interested in the cards and preferred the Board election route for determination of the Union's status. On settled principles (see NLRB. v. Gissel Packing Co., 395 U.S. 575), the issue to be resolved here is whether under the circumstances here present a violation of the bargaining obligation arises and a bargaining order is warranted when unfair labor practices preclude or make unlikely the possibility of holding a fair election. General Counsel urges that the conduct of Ferrante in his July 13 meeting with the employees and in his separate conversa- tions with employee Hays constitutes such unfair labor' practices. For reasons already stated, I have found no unfair labor practices in these respects. Moreover, even assuming that a, finding of unfair labor practice could be predicated on any aspect of this conduct, I am satisfied that it does not rise to the stature of behavior which would preclude or make unlikely the possibility of holding a free election. Accordingly, I conclude that a violation of Section 8(a)(5) has not been established. I shall further recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not shown by a preponder- ance of the evidence that the Company committed any unfair labor practice. RECOMMENDED ORDER I recommend that the complaint be dismissed in its entirety. but in those cases, unlike the instant case , such conduct was clearly established The instant case lacks the factual predicate for a finding of violation.