Soil Mechanics Corp.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soil Mechanics Corporation and Carpenters Local Union 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 29-CA-2347 November 29, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On March 29, 1972, Trial Examiner Abraham H. Mailer issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Charging Party filed exceptions. 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, conclusions, and recommendations only insofar as they are consistent with this Decision and Order. We agree with the Trial Examiner's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating its employees in its office as to their interest in the Union after the Union made its bargaining demand on March 11, 1971, and that the pay increases granted to three of its employees effective April 12, 1971, violated Section 8(a)(1) of the Act. Contrary to the Trial Examiner, however, for the reasons discussed below, we find that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employ- ees in the appropriate unit at its Brooklyn, New York, operation in violation of Section 8(a)(1) and (5) of the Act. The Respondent is engaged in providing and performing test boring and related services and employs approximately eight employees as drillers, drillers' helpers, or mechanics. The Trial Examiner found that employees employed in these categories constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. No exceptions were taken by the parties to this finding. On March 9, 1971, Henry Zylawski, a union representative, approached employees Bruno and Sarvis at a building site and solicited their help in organizing the Respondent's employees. Zylawski gave them some authorization cards, explaining that the cards were for the purpose of authorizing the Union to represent the employees in negotiating a contract with the Respondent. After some discussion regarding the union benefits, Zylawski spoke to other employees and also gave them authorization cards. On March 11, 1971, Zylawski and Charles John- son, another union business representative, met with Bruno, Sarvis, and one or two other employees, and Johnson explained to the employees some of the union benefits and answered their questions. He gave them authorization cards and told them that the purpose of the cards was to authorize the Union to represent the employees and to meet with the Respondent to negotiate a contract. Bruno then gave Johnson authorization cards signed by himself, Sarvis, Bacigalupi, Stokes, and McCormack, all dated March 10.1 Gamble, a sixth employee, signed a card the next day, March 12, but the Union did not receive it until about 10 days later. The authorization cards clearly authorized the Union to represent employees and to negotiate a collective-bargaining contract with the Respondent and there is no dispute as to their validity. After receiving the cards Johnson and Zylawski told the employees that they would immediately go to the Respondent's office and speak to Norman Weinstein, its president, and ask him to recognize the Union and to negotiate a contract. After leaving the jobsite Johnson and Zylawski proceeded to the Respondent's office and met with Respondent President Weinstein. At the time, Zylaw- ski had the five signed authorization cards in his hand. The Trial Examiner found that this represent- ed a clear majority of the Respondent's employees in the appropriate unit. No exceptions were taken to this finding. Although Weinstein did not question the majority showing, for various reasons he indicated that he was not willing to sign a contract with the Union and refused to negotiate. Johnson and Zylawski thereupon left, and the Union filed a petition for an election. About 2 or 3 weeks after the Union made its demand, Weinstein approached his employees in the shop and asked them to come into his office. It was a rainy day and, as was Respondent's practice, when employees were not able to work at the jobsite because of inclement weather they were employed in various inside shop jobs. All of the unit employees who had signed authorization cards, except McCor- mack, who was ill, were present. Weinstein asked the approximately seven employees whether they had signed cards for the Union. After some hesitation, the five employees present who had signed authoriza- tion cards admitted that they had. Although at that point Weinstein knew that a majority of the employees in the unit desired to be represented by I All dates hereinafter refer to the year 1971 200 NLRB No. 60 SOIL MECHANICS CORP. the Union, he nevertheless proceeded to discuss the pros and cons of the effect of unionization on the employees and on the Respondent's business prac- tices. A few days after this meeting the employees got together and five of the employees who had signed authorization cards drew up a statement stating that they no longer wished the Union to represent them and gave the statement to Weinstein. In the week ending April 16, employees Bruno and Sarvis each received a $25-a-week wage increase, and employee Bacigalupi received a $15-a-week increase, effective April 12. As noted above, all three employ- ees had originally signed union authorization cards and Bruno and Sarvis were the most active union adherents. These increases were the largest ever received by any employees in the unit. Prior wage increases had never exceeded $10 a week. The Trial Examiner found that the interrogation of its employees as to their interest in the Union and the pay raises given to three of its employees after the repudiation of the Union were violative of Section 8(a)(1) of the Act. However, he concluded that the evidence did not warrant finding that the Respon- dent by its conduct unlawfully refused to recognize and to bargain with the Union. Accordingly, he dismissed the 8(a)(5) and (1) allegation. We do not agree. While on March 11 the Respondent had a qualified right to refuse to bargain until the Union could establish its majority in some manner other than the mere assertion that it had authorization cards from the employees in the unit, such right was not an absolute one. As we noted in R & M Electric Supply Co.,2 in the absence of a voluntary agreement between the parties to utilize permissible procedures, other than a Board-conducted election to resolve majority status, an employer is not obligated to rely on union-proffered authorization cards allegedly establishing majority status. However, we further stated that, should the employer after refusing the union's claim of having majority status and its demand for bargaining thereafter determine by means of a poll under conditions of its own choosing the Union enjoys a majority status, the Respondent cannot ignore the results. Here the Respondent, a few weeks after the Union claimed majority status and made its bargaining demand, called a meeting of its employees in its office during working hours. Approximately seven of the eight employees in the unit were interrogated and specifically asked in effect if they had signed an authorization card designating the Union as their collective-bargaining agent. A majority of the em- 2 200 NLRB No, 59 3 See Sullivan Electric Company, 199 NLRB No 97 1 Member Penello, on the other hand, finds it unnecessary in the 545 ployees in the unit affirmatively indicated that they had, and thus the Union's majority status was ascertained. At that time the obligation to bargain with the Union arose, and the Respondent could not thereafter rest its refusal to bargain on the Union's lack of a proven majority.3 Furthermore, in our opinion, the wage increases given to three of the six union adherents by themselves are sufficient, regardless of the Respon- dent's poll, to warrant a Gissel type bargaining order. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610, 614-615; Skaggs Drug Centers, Inc., 197 NLRB No. 171. These increases did not follow Respon- dent's past practices and were much higher than any prior wage increases. Contrary to the Tnal Examiner, the impact of such wage increases on the employees was as great as, if not greater than, a general increase and would have a lingering effect making the possibility of holding a fair and free election unlikely. Cf. Federal Stainless Sink, 197 NLRB No. 76 (TXD, The Remedy).4 We find, therefore, contrary to the Trial Examiner, that the Respondent violated the Act by refusing to recognize and to bargain with the Union and that the policies of the Act will be effectuated by the imposition of a bargaining order, as provided below. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall order the Respondent to cease and desist therefrom and take certain affirmative action which we find to be necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. For the reasons discussed above, we find that imposition of a bargaining order is essential to remedy the unfair labor practices and to protect the statutory rights and interest of the employees. Because of the scope and the extent of the unfair labor practices found herein, we shall provide a broad cease-and-desist order. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters Local Union 1536, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All drillers, drillers' helpers, and the mechanic- driller's helper, employed by Respondent at its Seaford, New York, plant, exclusive of draftsmen, circumstances here to pass upon whether the wage increases would warrant a Gissel type bargaining order 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical employees, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing to bargain with the Union, Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By interrogating its employees as to their interest in the Union, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 6. By granting pay raises to employees Bruno, Bacigalupi, and Sarvis, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Soil Mechanics Corporation, Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their mem- bership or interest in Carpenters Local Union 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organiza- tion of its employees, in a manner constituting interference, restraint, or coercion within the mean- ing of Section 8(a)(1) of the Act. (b) Granting wage increases or other benefits to employees to discourage them from engaging in union activities. (c) In any like or related manner interfering with or coercing its employees in the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive representative of the employ- ees in the bargaining unit, and embody in a signed agreement any understanding reached. (b) Post at its plant and office in Seaford, County of Nassau, State of New York, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. s 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 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 WE WILL NOT interrogate employees concern- ing their membership or interest in Carpenters Local Union 1536, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, or in any other labor organization of our employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT grant wage increases or other benefits to employees to discourage them from engaging in union activities. WE WILL NOT refuse to bargain collectively with the Union as the exclusive representative of our employees in the unit found to be appropri- ate. The appropriate unit is: All drillers, drillers' helpers, and the me- chanic-driller's helper employed by Respon- dent at its Seaford plant, exclusive of draftsmen, office clerical employees, and all supervisors as defined in Section 2(11) of the Act. WE WILL bargain upon request with the above- named Union as the exclusive representative of all employees in the unit described above with respect to wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choosing, and engage in other concert- ed activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain SOIL MECHANICS CORP. 547 from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. All of our employees are free to become and remain members of the above-named Union, or any other labor organization, or to refrain from doing so. SOIL MECHANICS CORPORATION (Employer) ments made by the Respondent to the employees who received such increases. All parties were represented at the hearing and were afforded full opportunity to be heard , to introduce relevant evidence, to present oral argument, and to file briefs with me. On December 20, 1971 , counsel for the General Counsel filed a brief, and counsel for the Respondent filed a letter-memorandum . Upon consideration of the entire record, the brief, and letter-memorandum, and upon my observation of each of the witnesses , I make the following: 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, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596- 3535. TRIAL EXAMINER'S DECISION ABRAHAM H . MALLER, Trial Examiner : On April 8, 1971, Carpenter's Local Union 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, filed a charge against Soil Mechanics Corporation, herein called the Respondent. Upon said charge, the Regional Director for Region 29 of the National Labor Relations Board , herein called the Board, on May 19, 1971, issued on behalf of the General Counsel a complaint against the Respondent alleging that the Respondent refused to recognize and bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in an appropriate unit therein described ; interrogated its employees concerning their membership in, activities on behalf of, and sympathy in and for the Union ; and threatened its employees with loss of work opportunities and other reprisals if they became or remained members of the Union, and if they gave any assistance and support to it, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, the Respondent denied any violations of the Act. Pursuant to notice , a hearing was held before me at Brooklyn, New York, on September 15 and 16, and October 18, 1971. During the hearing , the General Counsel moved, and was given leave, to amend the complaint to allege additionally that on or about April 16, 1971, Respondent granted wage increases to three named employees effective April 12, 1971. Respondent filed an answer denying the allegations set forth in the amendment, and as an affirmative defense, averred that the increases were merit increases granted pursuant to prior commit- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times material herein, Respondent has maintained its principal office and place of business at 3770 Merrick Road , in the Town of Seaford, County of Nassau, and State of New York, where it is and has been at all times material herein continuously engaged in providing and performing test boring services and related services. During the year preceding the filing of the complaint, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations , performed test boring and related services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in, and for various enterprises located in , States other than the State wherein it is located. Accordingly, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED Carpenter's Local Union 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the Union represented a majority of Respondent's employees in an appropriate unit. 2. Whether the Respondent unlawfully refused to recognize and bargain with the Union in violation of Section 8(a)(5) of the Act. 3. Whether the Respondent coercively interrogated its employees in violation of Section 8(a)(1) of the Act. 4. Whether the Respondent threatened its employees with loss of work opportunities and/or other reprisals if they joined the Union in violation of Section 8(a)(1) of the Act. 5. Whether the Respondent granted certain employees pay raises in violation of Section 8(a)(1) of the Act. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The Union's organizing campaign In March 1971,1 the Respondent employed eight employees as drillers , drillers' helpers, or mechanics. These employees were A. Tay, C. Gamble, J. Stokes, R. Bacigalupi , A. Bruno, W. Sarvis, G. McCormack, and F. Ponzio. Tay was a working foreman who earned considera- bly more than the other employees in the unit . All the others except McCormack were drillers or drillers' helpers. McCormack was a mechanic who repaired trucks and other equipment, but also worked in the field as a driller's helper when needed . All of the foregoing employees were also employed by the Respondent during the month of April 1971 except Ponzio, who was terminated on March 31, 1971 The only other employees of the Respondent during this period were two draftsmen and a secretary. On March 9 Henry Zylawski, a union business represent- ative, approached employees Bruno and Sarvis at the Glen Oaks Country Club building site in Queens , New York, and inquired whether they were interested in being represented by the Union . He described some of the union benefits to them, and Bruno and Sarvis indicated that they were interested . Zylawski gave them some authorization cards, explaining that the cards were for the purpose of authorizing the Union to represent the employees in negotiating a contract with the Respondent . Bruno told Zylawski that he would look over the authorization cards and probably sign one that evening and would return them in a day or two. Zylawski then asked if there were any other employees of the Respondent working in the area, and Bruno informed him that other employees were working at a jobsite in Great Neck, New York, and offered to take him there. Zylawski , Bruno, and Sarvis then proceeded to the Great Neck jobsite where Bruno and Sarvis introduced Zylawski to employees Stokes, Bacigalu- pi, and McCormack . Zylawski explained some of the union benefits to the other three men, gave them authorization cards, and told them that the purpose of the cards was to authorize the Union to represent the employees and meet with the Respondent to negotiate a contract . Zylawski then arranged to meet the employees again at the Glen Oaks jobsite on March 1 I On the morning of March 11 , Zylawski and Charles Johnson , another union business representative , met with Bruno, Sarvis , and one or two other employees of the Respondent at the Glen Oaks jobsite . Johnson again explained to the employees some of the union benefits and answered their questions . Bruno then gave Johnson authorization cards signed by himself , Sarvis, Bacigalupi, Stokes, and McCormack, all dated March 10, which read as follows. AUTHORIZATION FOR REPRESENTATION I [name] hereby authorize the United Brotherhood of Carpenters & Joiners of Amenca AFL-CIO to repre- i All events detailed herein occurred in 1971 a Weinstein denied making the foregoing statement, but admitted that sent me in all matters relating to my employment with this Employer, its successors and assigns, and to negotiate, conclude, and administer any and all agreements as to wages, hours and other conditions of employment and to represent me in arbitration with this Employer, its successors and assigns. This full power and authority to act for the undersigned supersedes and cancels any power to represent me heretofore given to any person or organization. I agree to be bound by the Constitution and By-Laws, and Rules and Regulations of the United Brotherhood of Carpenters & Joiners of America AFL-CIO, its successors and assigns, and by any contract that may be in existence at the time of this application or that may be hereafter negotiated. Johnson and Zylawski then told the employees that they would immediately go to the Respondent's office and speak to Norman Weinstein, its president, and ask him to recognize the Union and negotiate a contract with the Union. Johnson and Zylawski also told the employees that if the Respondent refused to recognize the Union and negotiate a contract, the Union would file a petition with the Board for an election. Earlier, on March 9, Bruno gave employee Gamble a union authorization card, advising him of his meeting with Zylawski that day and telling him to sign the card if he wanted the Union to represent him. Gamble signed the card the next day, but did not remember whether he returned the signed card to Bruno or delivered it to Johnson. In either event, the Union received the card about 10 days later. 2. The demand for recognition and bargaining After leaving the employees at the Glen Oaks jobsite on March 11, Johnson and Zylawski proceeded to the Respondent's office in Seaford, New York, and met with Respondent's president, Norman Weinstein. After the men introduced themselves, Johnson told Weinstein that a majority of Respondent's core drillers and helpers had signed authorization cards for the Union to represent them and that he and Zylawski wanted to negotiate a contract with him. At the time, Zylawski had the five signed authorization cards in his hand. However, he did not offer them to Weinstein, nor did Weinstein ask to look at them. According to Zylawski and Johnson, Weinstein told them that he could not afford to pay union wages and fringe benefits or sign a contract with the Union and that if he did so, he would go bankrupt. Weinstein also told them that if the Union could organize his chief competitor, Ace Test Boring Company, and get that company to sign a contract, "he would be happy to sign an agreement with us." 2 Johnson replied that the Union had been trying to organize Ace and would continue trying to do so. Johnson then said that if Weinstein refused to negotiate, the Union would file a petition for an election with the Board. Johnson and Zylawski thereupon left, and the Union filed a petition for an election. Ace Test Boring Company was mentioned in their conversation I credit Johnson and Zylawski's testimony in this regard SOIL MECHANICS CORP 549 3 Alleged interrogation and threats About 2 or 3 weeks later, Weinstein approached his employees in the shop and asked them to come in to his office 3 It was a rainy day, and the employees were in the shop cleaning jars Weinstein asked the employees whether they had signed cards for the Union After some hesitation, the employees admitted that they had Weinstein told them that the purpose of the meeting was not to talk them into joining or to talk them out of joining, but that he felt that, as their employer, he ought to have a meeting with them to get the matter out in the open He then proceeded to discuss with them some of the advantages and disadvan- tages of operating under a union contract Speaking from notes which he held in his hand,4 he pointed out to the employees that under a union contract, the employees had job security in that they could not be fired at the whim of an employer He also pointed out to them that under a union contract they would have a substantially higher hourly wage rate than he was paying them and better fringe benefits Under the disadvantages, he pointed out that under Respondent's current practice, all employees worked 52 weeks a year with pay, even on rainy days and snowy days when they could not work in the field, and during the summer slow period,5 but under a union contract they could be laid off on rainy days and during slow periods He also pointed out to them that when work takes them out of the geographical area, they currently receive a per diem allowance of $20, whereas under a union contract, he was obliged to pay them only $7 Weinstein told them that there was going to be a hearing on the Union's petition, asked them to reach a decision among themselves, and stated that he would abide by their decision 4 The employees desert the Union A few days later, the employees held a meeting in the shop and decided that they would be better off without a union They decided to draw up some papers stating that they no longer wished to have the Union represent them, and Sarvis volunteered to have his wife type up the statements Two days later, Sarvis brought to the shop statements addressed "to whom it may concern" which stated that the undersigned employee no longer wanted the Union to represent him Five employees signed the statements and returned them to Sarvis who gave them to Weinstein On April 8 Joseph Geffen, secretary-treasurer of the Union, and Business Representative Johnson attended an informal conference at the Board's office in connection with the representation petition filed by the Union Anthony Marano, an attorney representing the Respon- dent, also attended the meeting Attorney Marano asked Geffen to meet with him privately When they were alone, Attorney Marano pulled some papers from his brief case and told Geffen that he had five signed statements that the men no longer wanted the Union to represent them He 3 All employees except McCormack, who was ill were present 4 According to Weinstein's credited testimony he made the notes of the provisions of a union contract supplied to him by another test drilling company operating in a different geographical area told Geffen that the employees had made a satisfactory arrangement with the Respondent and that the statements indicated that they were rescinding all commitments made to the Union Geffen suggested that Attorney Marano repeat what he had said to Board Agent Katz They then returned to the conference room and Attorney Marano gave the statements to Board Agent Katz and repeated what he had said to Geffen Board Agent Katz returned the statements to Attorney Marano and suggested that Respondent might be in violation of the Act Geffen then told Marano that he should call up his client and tell him that if the Union did not get a recognition agreement signed that day, it was going to file unfair labor practice charges Attorney Marano left the room and returned a few minutes later, indicating that Weinstein's answer was "No" The meeting then broke up, and the Union immediately filed an unfair labor practice charge against the Respondent A few days later Richard Hartman, another attorney representing the Respondent, called Geffen and arranged a meeting with him On April 15, Geffen and Johnson met with Attorney Hartman in a restaurant After they were seated, Attorney Hartman pulled out some papers from his brief case and said that he had five statements for them from the men they represented He handed the statements to Geffen, who looked at them and showed them to Johnson Attorney Hartman commented that the employ- ees had made their own deal and no longer wanted the Union to represent them and asked Geffen and Johnson why they were pursuing the matter Geffen pointed out that they had signed authorization cards and had come to negotiate a contract When Geffen asked Attorney Hartman what wage rates the Respondent was currently paying the employees and what fringe benefits the employees were receiving, Hartman replied that he did not know, that it would take him a few days to find out Hartman replied that he was there to negotiate, but that he could not sign any agreement Geffen then pointed out that the representation proceeding had been delayed, and he did not think the Board would stand for any further delays He also pointed out that an unfair labor practice charge had been filed The meeting became argumentative, and Attorney Hartman left Following this meeting, the Union withdrew its petition for an election Subsequently Weinstein returned to the employees their statements purporting to rescind their union authoriza- tions 5 The pay raises On the week ending April 16, employees Bruno and Sarvis each received a $25 wage increase, and employee Bacigalupi received a $15 increase , all effective as of April 12 These increases were the largest ever received by these, or any other, employees in the unit Prior wage increases had never exceeded $ 10 per week Respondent contends that these increases were granted pursuant to promises made to the employees before the advent of the Union 5 Under Respondents current practice employees work in the shop during periods when they cannot work in the field cleaning and labelling jars repairing and maintaining trucks painting the company premises and working on the lawn 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The matter is discussed in detail under the section Concluding Findings, infra B Concluding Findings 1 The appropriate unit As previously stated, the Respondent is engaged in providing and performing soil test boring services for building and construction firms In addition to core drillers, drillers' helpers, one mechanic-driller's helper, and a working foreman, the Respondent also employs two draftsmen and one clerical employee The drillers and drillers' helpers are field employees who operate drilling rigs at construction sites and take soil samples out of the ground to test the quality of the soil The mechanic-driller's helper also performs part of his duties in the field The Board has held that heavy equipment operators in the building and construction industry who constitute a clearly identifiable and functionally distinct group with common interests distinguishable from other employees constitute an appropriate unit Del-Mont Construction Company, 150 NLRB 85 Also, units of field survey employees employed by survey companies, excluding, inter alia, draftsmen and office clerical employees, have been held to constitute an appropriate unit Frederick H Zurmuhlen & Associates, 189 NLRB No 63, Browne and Buford, Engineers and Surve- yors, 145 NLRB 765 Accordingly, I find and conclude that all drillers, drillers' helpers, and the mechanic-driller's helper employed by Respondent at its Seaford plant, exclusive of draftsmen, office clerical employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 2 The Union's majority status On March 11, when the Union requested recognition and bargaining, there were eight employees in the bargaining unit described above 6 On that date, the Union had in its possession authorization cards signed by five employees and received a sixth authorization card shortly thereafter Thus, the Union had a majority These cards were valid authorizations, clear and unambiguous on their face The employees who signed the cards were all literate, and there was no misrepresentation as to the purpose and effect of the authorization cards To the contrary, the signers were fully aware of the purpose of the cards and were told that they would be used by the Union to obtain recognition and bargaining 7 Accordingly, I find and conclude that on March 11, the Union represented a clear majority of the Respondent's employees in the appropriate unit 3 The refusal to bargain As previously stated, after the Union had secured authorization cards from a majority of Respondent's 6 As previously stated employee Tay was described as a working foreman The parties stipulated that he was a member of the appropriate unit V Both Bruno and Bacigalupi testified that Zylawski told the employees that the cards were not binding Sarvis also testified to the same effect but explained that he was told that he did not have to join the Union Zylawski employees in the appropriate unit, Business Agents Johnson and Zylawski called on President Weinstein at Respondent's office Although Zylawski held the authori- zation cards in his hand when he spoke to Weinstein, he did not tender them to Weinstein, nor did he make any attempt to demonstrate that the Union in fact represented a majority On the other hand, Weinstein did not question the statement of the business representatives that the Union did represent a majority Instead, Weinstein inquired whether the Union had organized his chief competitor, Ace, and on receiving a negative reply, told Johnson and Zylawski that he could not stay in business if he signed a union contract unless Ace also signed a contract with the Union, that when Ace signed a contract, the Respondent would be happy to sign with the Union The Union's representatives then told Weinstein that the Union would file a petition for an election The General Counsel contends that the Respondent thereby refused to bargain in violation of Section 8(a)(5) of the Act I do not agree In N L R B v Gissel Packing Co, 395 U S 575, the Supreme Court said at 594 Under the Board's current practice, an employer's good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election Thus, an employer can insist that a union go to an election, regardless of his subjective motiva- tion, so long as he is not guilty of misconduct, he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength [Emphasis supplied ] Neither of the foregoing conditions is present here When the Union demanded recognition and bargaining, the Respondent had no prior knowledge that its employees had been approached by the Union and had no means of knowing whether the Union did, in fact, represent a majority of its employees Although the Union did represent a majority, it made no attempt to prove it Instead, the Union's representatives told Weinstein that the Union would file a petition for an election, and did so Thus, the Union opted in favor of establishing its majority by the election process Plainly, the Union was not then of the opinion that the Respondent had violated the Act by refusing to bargain The General Counsel relies upon Newton Chevrolet, Inc 37 NLRB 334, 341, and Master Touch Dental Laboratories, 165 NLRB 585, 588 Both decisions antedate Gissel Nor are they apposite In Newton Chevrolet, the employer acted denied telling the employees that the cards were not binding I credit Zylawski and do not credit Bruno and Bacigalupi in this regard Sarvis testimony that he was told he did not have to join the Union does not detract from the validity of the cards as authorizing the Union to represent the signers SOIL MECHANICS CORP in bad faith in insisting that the union involved organize the entire industry, as evidenced by the fact that it thereafter unilaterally put into effect the changes in wages, hours, and working conditions demanded by the union without giving the union credit for the changes In Master Touch, the employer and the Union had enjoyed a bargaining relationship for 14 years when the employer refused to bargain further because the union had failed to organize the employer's competitors Thus, the employer was fully aware of the union's majority when it refused to bargain, and thereafter engaged in unfair labor practices to destroy the union's majority In view of all the foregoing, I find and conclude that the Respondent did not violate Section 8(a)(5) of the Act, and the complaint should be dismissed in this regard 4 Interrogation Admittedly, President Weinstein interrogated his assem- bled employees as to their interest in the Union Such interrogation must be considered to be coercive, because none of the safeguards set forth in Struksnes Construction Co, 165 NLRB 1062, 1063, were observed Accordingly, I find and conclude that by such interrogation, the Respon- dent violated Section 8(a)(1) of the Act Although I have found that President Weinstein interro- gated the assembled employees as above stated, I find that he did not interrogate employee McCormack who was absent from the foregoing meeting Sometime later, President Weinstein did have a conversation with McCor- mack while the two men were in a station wagon driving to pick up a truck Both Weinstein and McCormack agree that it was McCormack who initiated the conversation, telling Weinstein that he had signed an authorization card for the Union He asked Weinstein whether, if the Company went union, he would have to join the Union Weinstein replied that he did not know the answer to McCormack's question I find and conclude that Weinstein did not interrogate McCormack in violation of Section 8(a)(1) of the Act 5 Alleged threats of layoffs As stated above, following the interrogation, President Weinstein discussed the advantages and disadvantages to the employees of operating under a union contract Among the disadvantages, Weinstein pointed out that, under Respondent's current practice, the employees were guaran- teed 52 weeks' work a year, doing work around the plant when the weather was inclement and during the slow season Under a union contract, the Respondent could lay off employees during the slow season and need not pay them when they were unable to do drilling work because of inclement weather The General Counsel has seized upon this and contends that this was a threat to lay off the employees if they joined the Union I cannot agree The General Counsel's contention would have greater force and validity if the matter of layoffs during the slow season 8 In support of this contention the General Counsel relies upon Frederick H Zurmuhlen & Associates supra The Zurmuhlen case is inapposite There the employer s statement that if the Union came into the picture the Respondent would lay off employees during the winter months 551 and no work on rainy or snowy days were the only matter mentioned by Weinstein 8 But this is not the case Weinstein discussed both the advantages and disadvan- tages of working under a union contract Thus, he made it clear to the employees that under a union contract they would have job security and would receive a substantially greater hourly rate and better fringe benefits Against these acknowledged advantages, he pointed out the balancing considerations of the possibility of layoffs during the slow season and not working during inclement weather, and the smaller per diem for travel work under a union contract as against the per diem which the employees currently received Finally, Weinstein assured the employees that he would abide by their decision In this context, the layoffs to which Weinstein referred did not constitute a threat of reprisal In effect, Weinstein was pointing out that the increased hourly wage that he would have to pay under a union contract would have an adverse economic impact on Respondent and would prevent it from paying for nonproductive time In sum, I find that Weinstein's statement constituted a fair and objective discussion of the pros and cons of working under a union contract In this connection, it is significant that neither the General Counsel nor the Charging Party presented any rebuttal evidence to the effect that Weinstein had misrepresented the provisions of the union contract Weinstein's speech was therefore the expression of his views and argument as to the benefits of a union contract and, as such, was protected by the free speech provision ofSection 8(c) of the Act Cf Bostitch Division of Textron, Inc, 176 NLRB No 47, Snap Out Binding & Folding Inc, 166 NLRB 316, 327, T M Duche Nut Co, Inc, 174 NLRB 457, 458 Accordingly, I find and conclude that the Respondent did not threaten the employees with layoffs, in violation of Section 8(a)(1) of the Act, and the complaint should be dismissed in this regard 6 The pay raises As stated above, the pay raise of $25 to Bruno and Sarvis and the $15 raise to Bacigalupi, all on April 16, were the largest ever granted by the Respondent Respondent contends that the raises were granted pursuant to promises made to the employees before the advent of the Union, that the promises to Bruno and Bacigalupi were occasioned by their promotion to driller, while the promise to Sarvis was made when he was hired The evidence falls far short of substantiating Respon- dent's contention Although Weinstein, Bruno, and Baciga- lupi testified that in the latter part of 1970, Weinstein told them that they would receive a raise "after the winter" if they proved themselves, admittedly no amount of the increase was mentioned, nor was any specific time stated According to Weinstein, the occasion for the promises was the fact that both Bruno and Bacigalupi were promoted from drillers' helpers to provisional drillers However, Bacigalupi testified that he became a driller approximately 2 years before the hearing Furthermore, although Wein- when work was slow was not made in the context of a discussion of the advantages and disadvantages of working under a union contract but was independently stated as a threat 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stein testified that he told both Bruno and Bacigalupi that they were doing well in January or February 1971, and that if they kept it up they would receive raises in the spring, Bruno testified that Weinstein never told him how he was doing after he had been promoted to driller and before he received the wage increase in April In sum, I do not credit Weinstein's testimony that the raises were given pursuant to prior promises Moreover, even if the foregoing testimony were taken at face value, it fails to show an explicit promise of a specified wage increase to be given at a specific time The same infirmities are present in the case of the wage increase to Sarvis Weinstein testified that he had hired Sarvis in September 1970, at $100 a week, but because Sarvis had been highly recommended to him and had complained about his inability to get along on $100 a week, he, Weinstein, at the time of hiring had promised to bring Sarvis' salary up to $140 in 6 months Sarvis received a $10 raise approximately a month and a half after starting, and another $10 increase just before Christmas Sarvis testified that when he got his second increase in December 1970, Weinstein promised him a $20 raise if he improved and told him that he was pretty close to being a driller, but did not tell him when he would get the raise The pay raise Sarvis received in April brought him up to $145, in excess of the promise allegedly made to him when he was hired In view of all the foregoing, I find and conclude that the increases granted to these three employees were violative of Section 8(a)(1) of the Act N L R B v Exchange Parts Co, 375 U S 405, C J Glasgow Co, 148 NLRB 98 The fact that these increases were given after the employees had repudiated the Union does not require a different conclu- sion The illegal effect of a pay raise is not diminished by the fact that it is given either as a reward to the employees who have repudiated the Union or as a means of insuring their continued loyalty to the employer Elliott-Williams Co, Inc, 149 NLRB 1242, 1247-1248 V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof VI THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act The General Counsel contends that the unfair labor practices in the instant case cannot be remedied by the application of traditional remedies and that a bargaining order is required He argues that the facts of this case fall 9 Although the Trial Examiner s Decision in that case was issued before the Supreme Court s decision in Gissel he did not recommend a bargaining within the class of the "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process" (N L R B v Gissel Packing Co, supra, at 614) I cannot agree Insofar as the illegal interrogation is concerned, the Supreme Court in Gissel said that "even if an employer's limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order" (supra at 609) An essential basis for the General Counsel's contention that a bargaining order is required is the argument that the Respondent threatened the employees with layoffs during the slow season and lack of work during inclement weather There is no question but that President Wein- stein's discussion of the advantages and disadvantages of working under a union contract was the key factor that motivated the employees to renounce the Union But, as I have found above, Weinstein's discussion was fair and objective and was an exercise of the right of free speech Accordingly, an essential element of the General Counsel's contention that a bargaining order is required is absent This brings us to a consideration of whether the pay raise which the Respondent granted to three of the employees after the repudiation of the Union "was of such a nature as to have a lingering coercive effect" (Arbie Mineral Feed Co, 182 NLRB 146) In Tower Records, 182 NLRB 382, the Board held that a general wage increase would have such an effect But compare Arcoa Corporation, 180 NLRB 1, where the Board in similar circumstances did not order bargaining 9 In the instant case, the wage increase was not a general one, but was limited to only three of the employees in the unit It is speculative as to whether the granting of a limited wage increase would in the future impel those employees who did not receive an increase to vote against the Union in an election Indeed, it could be argued with equal force that it might cause them to resent being left out and motivate them to vote against the employer's desires Under all the circumstances, therefore, I conclude that a bargaining order is not required in the instant case to eliminate the effects of the Respondent's unfair labor practices CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Carpenter's Local Union 1536, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 The unit set forth in section IV of this Decision constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 4 The Union has been at all times material herein the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By interrogating its employees as to their interest in order The Board s decision was issued after Gissel SOIL MECHANICS CORP the Union, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act 6 By granting pay raises to employees Bruno, Baciga- lupi, and Sarvis, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices are unfair labor 553 practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 8 The Respondent has not violated the Act in respects not found herein [Recommended Order omitted from publication ]