H. A. Kuhle Co.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. A. Kuhle Company and Teamsters, Chauffeurs & Helpers Union, Local No. 279. Cases 38-CA-1539 and 38-RC-1 153 July 30, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 30, 1973, Administrative Law Judge Irv- ing M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions to the Administrative Law Judge's Decision and a statement in support thereof, and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, H. A. Kuhle Company, De- catur, Illinois, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are 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 2 Member Kennedy dissents from so much of the majority's decision as affirms the Administrative Law Judge's findings that Campbell's speeches and McKenzie's statements that the Union's demands would have caused a strike violated Sec 8(a)(1) of the Act However, notwithstanding that he would not adopt these findings of the Administrative Law Judge, he believes that the other findings of violations of the Act, with which he concurs, justify the issuance of a bargaining order DECISION IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on November 14-17, 1972,1 at Decatur, Illinois. The charge was filed by Teamsters, Chauffeurs & Helpers Union, Local No. 279 (herein called the Union) on August 3 and served upon Respondent August 4. The com- plaint issued September 20. The primary issues are whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.), herein called the Act, by interrogating, threatening, and promising benefits to its employees, and by granting them a wage increase and other benefits; violated Section 8(a)(3) by constructively discharging Thomas G. Massey; and vio- lated Section 8(a)(5) by refusing to bargain with the Union (or whether Respondent should be ordered to bargain with the Union even absent an 8(a)(5) finding); and whether, absent a bargaining order, the result of the election conduct- ed in Case 38-RC-1153 on May 24 should be set aside and a new election directed. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS I RESPONDENT'S BUSINESS The complaint alleges, the answer admits, and I find that Respondent is a Delaware corporation with office and place of business located at Decatur, Illinois, where it is engaged as a GMC dealership in the business of selling and servicing new and used trucks and parts therefor; and that during the past 12 months, a representative period, Respondent re- ceived directly from points outside of Illinois goods and materials valued in excess of $50,000. At the hearing, the complaint was amended to allege, and Respondent stipulat- ed, that during the last fiscal year, a representative period, Respondent's gross sales exceeded $500,000. I find Respon- dent to be an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Robert Campbell, who had been vice president and sales manager of Respondent , a General Motors dealership, prior to August 1971, was put in charge of the day-to -day opera- tions of the Company at that time upon the death of Mr. Kuhle, its owner. He remained responsible to the Kuhle estate (Mrs. Kuhle and her attorney) for "anything out of All dates are in 1972 except as otherwise stated 205 NLRB No. 21 H. A. KUHLE COMPANY the ordinary" until June 27, 1972, when he became Respondent's owner and general manager and assumed full control. Campbell concededly strongly opposed the unioni- zation of the Company. The stipulated unit consisted of the parts department and the service department, the latter in- cluding a mechanics' shop and a body shop. 2. Start of the organizing drive On March 6, 1972, five of Respondent's employees, Thomas Massey, Wayne Sowers, Bill Skowronski, Max Zimmerman, and Carl Mortland, visited the headquarters of the Union and spoke with Guy Clapper, its president and business agent, about organizing Respondent's place of business. Each of said employees there signed a form of application for membership which also specifically desig- nated the Union as bargaining representative. Clapper sug- gested that any other employees interested in the Union should be told to contact him. 3. 8(a)(1) a. Respondent's reaction and further developments On March 7 Service Manager Roger McKenzie asked Massey (who had a desk job as warranty man in Mc- Kenzie's office) if he knew anything about any union activi- ty on the floor. Massey said he did not. McKenzie testified that the conversation concluded at that point. According to Massey, however, McKenzie thereupon asked him if he would find out what union the men were trying to get into the shop, and he agreed. About the same time, McKenzie asked employee Hapner 2 if he had signed a card, and Hap- ner, who had not yet signed, so advised McKenzie. On the same day Massey told a number of his fellow employees to go to see Clapper and sign cards if they were interested in getting the Union into the shop. He personally accompanied one of such employees (Younger) to the union hall for that purpose. The next day (March 8), at 7 a.m., according to Massey, he was approached by McKenzie in his office. McKenzie asked "What are you doing being involved in the Union?" Massey asked, "What Union?" McKenzie replied, "You know damn well what Union. You were hired to work for the Company and to stop the Union. You're not supposed to be helping the men." Massey's per- sistent denial of any knowledge of the Union went unheed- ed as McKenzie told him to stay away from the men, not help them in organizing, and to "stay out of the Union or else," accompanying the warning with a clenched fist. Fi- nally, McKenzie closed the conversation by saying, "If you don't like the way things are run here, you can pick up your stuff and leave." However, McKenzie returned about a half hour later and stated that nothing he had said meant that Massey was fired. McKenzie's testimony did not specifically advert to the above conversation. However, he did mention "a second conversation . . . sometime" after the admitted interroga- tion of March 7 that was occasioned by his overhearing 2 Body shop foreman but a member of the bargaining unit 89 Massey discussing the Union on the floor with some me- chanics. Later, in the office, he said, he asked Massey why he was interested in the Union, and told him that since he was a clencal employee and the other clericals "would not become union, that he wouldn't be able to become a mem- ber." 3 Massey continued his union activity, sending more em- ployees on March 8 to the union hall to sign cards, and he visited the hall himself about every other day. On March 9, at McKenzie's direction, Massey made up and posted in the office they shared a new work schedule for the mechanics which would have altered the existing situation in two major respects. First, it would have changed the hours of the night shift which were then from noon to 9 p.m. to 5 p.m. to 1 a.m.; and it would have increased the size of the night shift from three men to six. The schedule indicated no effective date, but according to Massey, Mc- Kenzie informed him at the time that it would become effective if the Union came in. McKenzie testified that he had ordered the schedule made because the business re- quired some changes. However, these changes never went into effect.' Nor did another schedule for the mechanics which McKenzie had earlier ordered Massey to make up. Massey testified that the first schedule had been made up only the previous day and had remained posted for several weeks along with the second. McKenzie testified that the first had been made 2 to 3 weeks before and been removed and destroyed as unworkable when the second was made. On Saturday, March 11, over 20 employees of Respon- dent met at the union hall with Clapper and other union officials, resulting in two additional card signings which brought the total of signed cards to 22 of the 26 stipulated unit employees.5 The following Monday, March 13, Clapper telephoned Campbell and requested recognition of the Union. Camp- bell replied that he thought an election would be necessary, and Clapper responded that they could proceed in that direction if the Company so desired. Two days later the Union filed its petition in Case 38-RC-1153 6 Shortly there- after McKenzie told Massey, according to the latter, that he was glad Campbell had rejected the bargaining request be- cause otherwise there would have been a strike for the Union's demands, in which event the Company "would just close the gates." McKenzie's version of the conversation was that he said he was glad Campbell had not recognized the Union on its "initial contact" because that might have caused a strike. Around this same period McKenzie told Massey and Younger that if the Union came in the employees would no longer be able to work on their own cars on company prem- ises.' According to Massey, McKenzie also told him that if 3 I find this to be the same conversation as that of March 8 described above by Massey According to Massey, McKenzie instructed him to have Carl Mortland see the schedule because he was one of the mechanics who would have been moved to the night shift and he did not want to work nights Massey did not carry out the instruction 5 A 23rd card was signed on April 20 6 Campbell's recollection of the 17th as the date of the request and refusal to bargain seems faulty in view of the filing of the petition on the 15th. 7 McKenzie testified he said this because if he continued to allow the Continued 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union came in the discount on parts that the employees were then enjoying would be discontinued; and that the Company would start running the shop like a big factory in respect to disciplining latecomers and those who failed to return tools to the tool crib. None of this was specifically denied by McKenzie. Around the end of March or early April, McKenzie di- rected Massey to make up a poster as follows: COMPANY POLICY-EFFECTIVE [blank] 1. SAFETY GLASSES 2. STEEL TOE SAFETY SHOES 3. Massey testified that McKenzie told him that if the Union came in the men would have to get these articles at their own expense. McKenzie testified that this poster was occasioned by official notices issued under the Occupational Safety and Health Act and particularly after one mechanic had a pair of safety glasses broken by a flying object. He informed the service personnel of this at a meeting. Respondent has never purchased safety equipment for its employees. About the same time, McKenzie asked Hapner if he knew "what was going on about the Union" and when there was going to be an election; Hapner replied that he did not know. Also, according to employee Neeley, McKenzie stat- ed that four men would have to move to the night shift if the Union came in, and the shift hours would change so that it would end at I a.m. McKenzie testified that this incident involved a conversation with employee Bond at which Nee- ley and Mortland were present; that Bond had been seeking a transfer to the day shift, and McKenzie was asked why he had not received it; that he replied that he did not have a replacement for Bond, and someone suggested that under a seniority system Bond would be entitled to the change; and that McKenzie agreed, adding that under a strict sen- iority system four men on the day shift would have to move to night work. b. Intensification with approaching election On April 20, a stipulation for certification upon consent election was approved and the election was scheduled for May 24. The day after execution of the stipulation, Camp- bell presided in McKenzie's office at a meeting he called of all the employees. He read from a prepared speech, whose text was as follows: Men I thought I should talk with you for a few minutes concerning this Union matter ( I am going to use these notes because law is pretty strick and I need to have a record of what I say). As most of you know the Teamsters Union has peti- practice the Union would grieve over the Company's favoring certain em- ployees as against those who did not take advantage of this opportunity tioned the government to hold an election here, they are claiming that most of you want to be represented by this Union. I felt that each of you should have the opportunity to vote on a matter as serious as this. I know that the Union and some of our employees may have put some pressure on you to sign a union card By having an election you will each get a chance to vote the way you feel. Yesterday the Government, the Union and myself met to determine whether or not each of you would get a chance to Vote. The Union wanted to exclude certain people from voting, but again I felt that everyone here should have a say so in a matter this important. Finally the Union agreed to let everyone vote. That meant that everyone working in the Parts and Service Dept. prior to yesterday will be eligible to vote if they are still here by election day. Of course Ken the Parts Manager and Roger the Service Manager will not vote but everyone else can. There are a few things I do want to clear up for you. Number 1 Just because you signed a Union card does not mean that you are obligated in anyway to vote for the Union on Election Day. Number 2 As you know, I am trying to negotiate with Mrs. Kuhle and the banks to raise enough money to buy the Com- pany. I don't know for sure now how that will affect any of you. Obviously I would have my own ideas about running the Company and would hope to be free to do that as soon as the deal was completed. I will keep you informed. There is always the chance that I will not buy the Company and someone else will-what will happen then, I can't tell you. Number 3 Just because this election is coming up and you may choose to have the Teamsters represent you, I am not going to change my mind about what I want to do here, I don't want to operate a Company where the Employ- ees are unionized but if you choose the Union I will go along with that. I don't feel that you need a Union to solve your problems for you, or that a Union will help you in any way. You may feel it will and that is your right. However I have rights to oppose the Union within the law and I intend to do just that. Number 4 I am sure some of you have been told that if the union gets in here all your problems will be solved-you'll get a raise we'll fix everthing and everything will be fine. H. A. KUHLE COMPANY 91 Lets get another thing straight-just because you vote a Union in here the Company doesn 't have to do any- thing. Nothing will ever be done here Union or no Union without Company agreement. The Union may tell you, you will get $5.00 an hour, but unless Company agree you won 't get it. If you vote the Union in and ask for something unreasonable the Company won't agree, then you'll have only two alternatives , accept Company decision or strike. I'll be talking to you some more be- fore the election which will be held on May 24th. I did want you know where the Company stood and that I just don't believe that you will be benefited by paying your money to an outside organization so that they can come in and talk for you. I hope you will agree and be man enough to talkfor yourself-if you think about that, and then whether the Union dues, initiation fees and assessments are voting to help you. 1st.-I'll set you straight-the union, by winning the Election will only give you the right to sit down and begin talking with me. I don't have to agree to anything I don't want to and you can be assured I won't agree to anything I feel is unreasonable . The law allows me the right to deal hard with the union-and you can be assured that I will. 3rd.-What happens if we can't reach an agree- ment?-Then as I see it, the union and you would have no choice but to strike. I hope that doesn't happen, but again I want to let you know that if you do strike I intend to run the business and the law allows me to have replacements for any one on strike. I think you'll agree that you should vote no Union on election day.8 Around the following week , while employee Max Zim- merman was returning from a service call with McKenzie, the latter asked Zimmerman what he thought about the Union and the Union's position on job classifications. Zim- merman said he thought, contrary to McKenzie, that the classifications would be good for the employees . Employee Younger, who had heard from another employee that Mrs. Kuhle was going to close the place down if the Union came in, asked McKenzie whether this was so, and McKenzie confirmed that that was what she had said . Younger testi- fied that McKenzie said nothing more, but McKenzie testi- fied that he added that he "didn 't know whether she could do it or not." During the next 2 to 3 weeks Campbell called four group meetings of about half a dozen men each , covering all the employees in the bargaining unit. He began every meeting with the statement that attendance was voluntary , that the men were free to leave at any time, and that nothing they said there would be held against them . He then read the following speech: There will be an election held here May 24 , at 3:30. Each of you will get a chance to vote on whether or not you want the union here. There are a few things I want you to know before you vote. Ist.-Just because you signed a union card you are not obligated in any way to the union-you don't have to vote for the union nor can they force you to pay dues or assessments at this time. 2nd.-I understand that some of you have been told that all you have to do is vote the union in here and thats it-you begin to get the things you want. 4th.-Now lets talk about some of the things that can happen if you vote the union in, and we do get a contract, I'm sure you've all been told you get to keep what you've got and try for more. -Thats not true. In negotiations, we start from scratch-just because you have certain holiday's and vacations and other priveleges here now doesn't mean you'll have the same thing after a contract is signed, you could very well get more in some areas but get less in others. Let me compare some union contract provisions around this area- 1st. Lets take the contract the automobile mechanics have in Springfield and let me show you something. Management Rights Clause Article VL (Read ) Wheth- er you believe it or not even with a contract we still would run the business as we see fit. Checkoff Article VIII (Read) This indicates that the Company deducts any dues, initiation fees, from the employee's pay before he ever gets it-this includes assessments the union may au- thorize, also, and you pay whether you want to or not because you never get the money. International Harvestor Now lets talk about what has happened when the em- ployees have gotten union for themselves right here in Decatur. 8 Emphasis Respondent's 1. Borg-Warner-layoff-closed up parts 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. A.E. Stanley Co,-Shut down & moved a drive- way 3. Huss Schlieper-Voted union out decertified 4. Mason Steel-Voted union out unanimously 5. Murply Industries, Warrensburg-Voted Union out 6. Malinkrodt-Voted union out (teamsters) Now that you've been told a few facts about Unions- let me tell you a little about your situation here- I know @ the 1st of the year you were promised an increase and a few other things-I couldn't give it to you because Mrs. Kuhle and her lawyer wouldn't let me. (They own 75% of the business.) I can tell you now that I am closer to closing the deal to buy this place. I probably shouldn't say this in this meeting but I will tell you that the $.10 per hour that I promised you in January, I now have permission to put into effect. The raise is not connected with this union matter in any way-it's only what I promised you I would do when Mrs. Kuhle and the lawyer said I could. Now I have a lot of ideas about what I want to do with the company but I can't do any thing now for fear of having the Union charge me with unfair labor practices and attempting to bribe you . I will say this I will not close the deal until sometime in the next 2 or 3 months If I don't buy it some one else may. If no one else buys it then at the end of August, the contract states that GMC terminates the Dealership. I'll be honest with you I don't want to buy a dealership where the employee's feel they need a Union to represent them and where there will be possible labor trouble. I do promise you that I can if you'll give me a chance to work directly with you-you'll see that I am going to be fair and reasonable. Until now I haven't been able to do anything because of the election coming up and you have sort of got my hand tied because of it. I can assure that if you will give me a chance I think you'll agree with me that you don't need a Union to do your talking for you I hope you do agree and vote NO on election day.9 Thank you. After completing his speech at the meeting attended by employees Meyer, Baker, Zeeb, Foshee, and Pope, Camp- bell asked what the men were hoping to get through the Union. Meyer and Zeeb both testified that they said they were most concerned about a pension plan, and , according to Zeeb, Campbell replied he was working on such a plan but that it would take about a year to implement it Meyer 9 Emphasis Respondent's None of the contract provisions mentioned in the speech were from Teamsters ' contracts could not recall Campbell's reply. Campbell testified that his response was that he and Mr. Kuhle had made prelimi- nary inquiries into this before the latter's death, and that if he (Campbell) did succeed in buying the business, such a program would be a year and a half off.10 At the meeting attended by employees Skowronski, Kauf- man, Smith, Goodbred, Mortland, Shaffer and Wehrle, Campbell asked what the complaints were that they wanted a union to help them resolve . Among those mentioned were the lack of cleanliness of the shop due to the accumulation of scrap and oil on the floor, the shortage of water buckets for filling radiators, the inadequate washing and dressing facilities," the insufficient lighting in the body shop, the need for a pension plan, and the Company's apathy con- cerning suggestions made at shop meetings unattended by Campbell. Skowronski and Goodbred testified that Camp- bell said he should be able to work out most of the problems raised, but they confirmed his reservations noted above in respect to pensions, and, according to Skowronski, Camp- bell said that the poor lighting was a major project which could not be resolved quickly . Skowronski also testified that Campbell said that if things did not go the way the men wanted, they could have another election in 6 months. Kaufman, testifying as Respondent's witness, stated that as to the complaints in general Campbell said in substance he would "try and see what he could do. Try and work some- thing out." In response to Campbell's inquiry at the meeting attended by Zimmerman, Younger, Tolly, Seibert, and White, as to the reasons they wanted a union, the Company's unrespon- siveness to employee suggestions or complaints at shop meetings was raised And the parts department employees complained about not receiving premium pay for overtime work. According to Zimmerman, Campbell said he wanted to know about employee grievances and so he would put up a suggestion box, which he did that same evening after the meeting. As to the overtime pay for the parts department, Zimmerman said Campbell suggested getting additional help so as to avoid or reduce the need for overtime work. Employee Younger testified that Campbell said at the out- set of the meeting that he could not promise anything but that in response to his complaint about the front office's failure to learn of the employees' grievances, Campbell said he would start attending the shop meetings . Younger corro- borated Zimmerman's testimony about the parts depart- ment overtime but he could not recall any mention of a suggestion box. He testified, however, that a suggestion box was put up and he thought it was after that meeting. Youn- ger also testified that he asked Campbell whether what he had heard about Mrs . Kuhle's intention to close the place 10 Campbell's testimony was that Neeley had raised the same issue Al- though nobody placed Neeley at this particular meeting , Neeley testified that he had raised the issue at a meeting called by Campbell which he attended with Pope and Bond 2 days before the election Since in every respect but one the matters covered in his testimony paralleled those discussed at the meeting mentioned in text, since this was the only meeting Neeley recalled attending with Campbell , since both Pope and Bond were present at the meeting mentioned in the text , and since there was no need for Campbell to repeat to them the substance of his speech (Resp Exh 4 ), I find that the events described by Neeley occurred at the meeting mentioned in the text The single additional matter in his testimony was that he asked Campbell for more shop tools and that Campbell said he would try to get them 11 The men changed their clothes in the boilerroom H A. KUHLE COMPANY if the Union won the election was true, and Campbell re- plied that that was what she had said but that he did not know whether she actually would do so. Recalled as a wit- ness later, he confirmed this conversation but stated he was uncertain whether it occurred at this meeting. Campbell substantially corroborated this conversation with Youn- ger 12 but stated it did not occur at this meeting. Campbell also acknowledged that he offered to hire an additional parts man so as to reduce the overtime work. Campbell testified to Seibert and Hilligoss raising the question of "the balcony and the stairway banister" 13 in the parts depart- ment, but Hilligoss was not present at this meeting and Seibert recalled the matter only in connection with another meeting confined to parts department employees which will be discussed infra. At the meeting attended by Sowers, Cravens, Hillogoss, Dickinson, Hapner, and Morr, Sowers raised the matter of the cleanliness of the shop. According to him, Campbell said he "could work something out on that," but Campbell testified that he said he could not promise to do much about it then. Sowers testified that Campbell's reply to the ques- tion of a pension plan was that he was working on it but that it would probably take a year to a year and a half to accom- plish anything. Sowers also testified that someone proposed sick leave but that Campbell rejected that on the merits. According to Sowers, Campbell said he would work some- thing out on overtime pay for the parts employees. Hilligoss' recollection of the meeting was somewhat vague but he did recall Campbell's general position that "it was really not much he could do, at the time." Cravens testified that Campbell said this specifically in respect to the over- time question. Shortly after this meeting, all six of the parts employees (Tolly, Seibert, White, Cravens, Hilligoss, and Dickson) met with Campbell at their request after having decided that Campbell deserved a chance to see what he could do. As Hilligoss put it, "we wanted to talk to him and tell him that we was on his side, and decided we didn't want to go for the Union." Again, according to Hilligoss, they told Campbell this after he greeted them by asking what they "needed" while adding that he could not promise until "this deal with the Union . . . was all settled." Tolly testified that Camp- bell said in effect that it was "because of the Union trouble" that he could not promise anything. The men raised the matters of overtime and the handrail. Cravens' testimony as Respondent's witness confused the two group meetings he attended, but according to him Campbell's only comment on the handrail at any meeting was that he had already discussed it with McKenzie and that McKenzie was already working on it. Tolly testified that Seibert defined their need as "handrails around the balcony and down the stairs," and that Campbell agreed they should have it and they discussed the dimensions it should be; and as to the overtime, Camp- bell said they were entitled to it and should get it if the 12 He testified he told Younger that he had heard Mrs Kuhle said that, "But I said I don't hardly believe it myself " 13 This is variously referred to in the record and in this decision as a rail, railing, handrail, or guardrail. It is more precisely described in Shaffer's testimony quoted below but consists essentially of a fence on the upper level topped by a handrail as well as a banister down the steps 93 Union was voted out but that if the Union came in they would have to bargain for it. Campbell's testimony was that he told the men a State inspector had noted the absence of a guardrail 14 and that his insurance agent had also pointed out that such a rail of certain dimensions was required under OSHA 15 regulations . As to the overtime, Campbell testified he told the men "we couldn't promise them any- thing, but if this thing was all settled , if the union was voted in, we'd have to negotiate for it, and if the Union was voted out, I'd be most happy to set (sic) down with them and talk to them and straighten everything out." About the same time, Skowronski, Mortland, and Sowers, all of whom had already met with Campbell as members of other groups, as indicated above, met again with him in his office. According to Skowronski, the men were called in by Campbell who asked them what the major problems of the mechanics were; he replied that one of his main complaints was that some other mechanics in the shop doing the same work as he were making about a dollar more an hour; and that Campbell acknowledged the inequity and said he should be able to work something out on it later . Skowron- ski also testified that Mortland again raised the pension question and that Campbell said he had been talking to an insurance man and that if something were worked out it would take about a year. Campbell's testimony confirmed the meeting and his accord with the complaint about the excessive wage differential . But he testified that the meeting had been requested by the men and that he told them he could not promise anything. When asked in his cross-exami- nation whether the meeting had not in fact been requested by the men, Skowronski stated, "This was another meeting, as best as I can remember , I was called in on two small group meetings . And, there was one where I went voluntari- ly„ In addition to these meetings, other developments were occurring during this same period that bear mention. Ac- cording to Meyer, McKenzie asked him at his workplace what he thought of the Union. Meyer responded he was "kind of on a fence." McKenzie said he did not think the men would benefit much from the Union . Mortland testi- fied that McKenzie told him at his work area that if the went union the shop would go on a 4-day, 40-hour week. Z Tolly testified that he asked Parts Manager Kenneth Stickle if that department should not get premium pay for overtime, and that Stickle answered that he thought that if the Union came in the Company would rather hire an extra man than pay overtime . Stickle did not testify. c. The wage raise Meanwhile, effective May 5, all the bargaining unit em- ployees received a 10-cent per hour wage increase as had been announced at the group meetings. As reflected in Campbell's prepared remarks at those meetings, the 14 This is confirmed by an Illinois Department of Labor report of the January 1972 inspection of the plant That report, however, notes five addi- tional violations, as to four of which the record is otherwise silent The fifth, "Housekeeping shall be maintained in a clean and sanitary manner," is dealt with herein i5 Occupational Safety and Health Act i6 This would have ended the customary 10-12 hours of overtime 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's stated position was that the raise was "not con- nected with this union matter in any way," and was only in fulfillment of his promise in January contingent on obtain- ing permission from the Kuhle estate which had just then been given. The Company further offered testimony that the raise was pursuant to a policy established long prior to the advent of the Union. Thus, Respondent' s witness em- ployee Baker, testified that the Company had maintained a standard policy of raising every employee's wage by 10 cents an hour every January I for the past "four years." Baker's testimony was very emphatic both in substance and in manner of delivery. He stated he could not be mistaken about this because he had seen the checks. He then ac- knowledged, however, that some mechanics had received a 25-cent increase in 1971 while insisting that every other employee got 10 cents. "And," he added, "they got it all from then on," meaning "From `71-from '71 back to '70- about four years ago." " According to McKenzie, the policy was one he had de- vised with Mr. Kuhle at "the beginning of 1971," to give a blanket increase at the beginning of each year with merit increases throughout the year. In 1971, the increase amounted to 25 cents and went to all but six of the men. One of the six did not start to work until after the first of Janu- ary. Two were explained as too new, one having come in December and the other in October. A fourth was a high school student, and the contract with the school did not permit him to get a raise. Employee Wehrle, also denied the raise as a new employee, according to McKenzie's direct examination, had been employed since June 1, 1970, 7 months. When this was pointed out by the General Counsel on cross, McKenzie added that Wehrle "was 18 years old and unfamiliar with the work" and that this as well as his newness militated against his getting the raise. The sixth, Hapner, who had worked for Respondent since August 1968, did not get the raise, because of an accident in the summer of 1970 following which he "was only working part time;" and again, "because he had been-had an accident and was unable to do full time work." Immediately after the above testimony came the following: Q. I don't believe you've explained that before. Would you go into a little detail with respect to Mr. Hapner's-the reason for his not receiving an increase? A. Yes. That summer Jim had had an automobile accident. Busted a hip. Was hospitalized for several weeks. And was unable to maintain at work. We did, however, give him a clencal job for several weeks, and didn't give him a raise at the time, at the beginning of the year. On cross-examination, however, came the following: Q. Okay. Now, and you said, as I recall, that Mr. Hapner did not receive his Twenty-Five Cent an hour increase, at that time because he was not employed full time. Here I have Mr. Hapner's record, if that's what you're looking for. Is that correct? A. You asked me if it was correct? Q. Isn't that what you testified tojust a minute ago? A. I testified that he was unable to work as a produc- tive man because of his accident. We had him doing clerical work. Q. I see. I misunderstood you. I thought you said he was not full time, and that's the reason he didn't get the raise. A. No. JUDGE HERMAN You actually did use that expression yourself. You also mentioned his clerical-his assign- ment to clerical duties. But you did mention the fact that he was not full time. THE WITNESS I said that he was off from the hospital, and we gave him a job as clerical. Q. (By Mrs. Benassi) He was full time in January of `71. He was a full time employee, was he not? A. Yes. McKenzie further testified that the Kuhle estate refused to permit the blanket increase in January 1972 although it did allow payment for the cost of uniforms which came to about 10 cents an hour; that he told the service employees sometime in January that he would continue to negotiate with the estate for an additional 10-cent increase ; and that the May increase was given to all the employees, including Rodney Morr who had been hired April 17. Campbell testified that prior to 1971 all raises were on a merit basis, that practically everybody got the 1971 raise, but that the estate would not grant it in 1972 except as to the 10 cents in uniform costs; that the policy adopted by Mr. Kuhle in 1971 was to gear an annual increase to the rise in the cost of living; that he and McKenzie had set the 1972 increase at 20 cents and hence the men were told by Mc- Kenzie at the January meeting that he and Campbell would continue to try to get them the additional 10 cents; that he talked to Mrs. Kuhle about it three or four times until about May 1 when, being close to consummating the sale of the business to him, she authorized the 10-cent raise while cau- tioning him against any "drastic" action or getting the Com- pany in debt until she was entirely out of it; and that he had been advised on April 20 by his attorney, whom he had retained the last week in March, that he was legally free to fulfill any promise he had made prior to "this union thing." Employee Younger, testifying for Respondent, confirmed the Company's position that McKenzie had promised in January to keep trying to get the 10-cent blanket raise. Employee Massey testified that McKenzie had stated at the January service meeting, in response to several requests for raises, that it could not be done "because of the Company being in estate," but that the Company was thinking instead of giving more benefits to the employees, like the uniform costs, and that he thought Campbell would give "a raise or bonus" after he took possession. Employee Zeeb testified that he had not been told by any member of management that he was going to receive the raise before he got it. Em- ployee Sowers testified similarly but then admitted having been told-and he did not remember when-that the reason no increase was being given was the estate's refusal to per- mit it. Employee Skowronski's testimony fairly paralleled Sowers' but he added that the men were told at the January meeting that "possibly I could receive a wage increase at the end of January, or possibly not until August." " His time concept was obviously faulty H. A. KUHLE COMPANY d. Action to remedy employee complaints The testimony was somewhat varied as to the extent to which and the time when certain of the complaints raised at the various group meetings were remedied. Younger testi- fied that nothing was done about the matters raised at the meeting he attended. Neeley testified that the shop tools he had requested at his meeting were purchased after the elec- tion. Of all the improvements suggested at the larger group meeting attended by Skowronski, he could recall as remed- ied only the complaints dealing with the dirty work area and the inadequate dressing facilities. He testified, "they cleaned it up and they painted the walls in it. And, they did start installing some wash basins." But he could not recall whether these things were done before or after the election. Goodbred, who had attended the same meeting, testified in greater detail: A. Well, being that the shop was so dirty, we took and we put barrels-we cut the top of old oil barrels, and we painted some of them green, for we-dump floor dry in them. And, some of them, we painted red. That was for a scrap metal, like, iron and stuff like this. And, somebody complained about, you know, not hav- ing enough radiator buckets to fill the radiators with. So, they bought some radiator buckets. And, we paint- ed them, like, in certain areas, so that they wouldn't get tracked all over the shop, and it would keep two in every area, two in every stall. We painted them, like, different colors, so we know where they went. And then, the bathroom, we put a couple more sinks in there, and we painted it, cleaned it all up. And then, I think, after the election, he built the locker room. Had the locker room built. For where the guys could clean up. Q. When you say we painted the barrels, who paint- ed them? Who are you referring to? A. Well, I think that I was the only one that painted them. But, you know, I ain't sure. Q. What about the radiator buckets, who painted those? A. I think Carl Shaffer painted them. Q. And, what about the bathroom area, or the lock- er area that was painted? A. Well, the carpenter painted the locker area. But, I painted the floor in it. Q. What about the area where the basins were, who did that work? Or, the sinks? A. Where the sinks were, I painted that. Q. All right. Now, did you do this work before or after the Labor Board election? A. Before. Q. Do you recall how long before? A. No, I don't. Q. Do you recall how long after this meeting took place? A. I don't recall. Q. What work, if any, was done after the election? A. Only thing I can think of right now, is the locker room being built. Sowers testified on direct that the Company built a little locker room and installed two more sinks but could not 95 recall whether it was before or after the election although he thought it was before. As for the dirty work area, his testimony was: Q. Was there anything done with respect to the dirty shop? A. No more than usual. They cleaned it up a couple times. But, it just gets messy again, and gets real bad before they clean it up. On cross-examination, he testified that the locker room, though used for cleaning up and changing clothes, still had no lockers, and "could have been" built after the election. General Counsel's brief concedes it was built after the elec- tion. As noted above, Zimmerman testified that the suggestion box was put up after the meeting at which Campbell had mentioned it, and Younger testified that he thought the box was put up after that meeting although he was unable to recall that the box had been mentioned at the meeting. Cravens testified that he was the one who had made the box and put it up, and said that he had done it in March, which would have antedated the meeting. He was "sure" it was March because the box was cardboard, as requested by Campbell, and Cravens had said he would try to make one out of wood so as to use a new saw which he had bought in February, about 2 or 3 weeks before. He never made the wooden one. Tolly testified that the handrail requested by the parts employees was put up around the balcony and down the stairs about 2 weeks before the election. Seibert, as Respondent's witness, testified that construction on the handrail had not started as of the time of Campbell's meet- ing with the parts employees. Employee Shaffer, however, who built it, testified for Re- spondent that he had first been approached about the mat- ter about "the first of February" 'A by McKenzie who told him it was needed because an inspector had been there and the parts men had been complaining about it for a year or two. Shaffer did not know whom the inspector represented. Nothing was done, however, until about a month to 6 weeks later when another inspector (who he thought was from the State but did not know) said it would have to be built "immediately," showed him where, and gave him the mini- mum dimensions.19 Shaffer ordered the material 2 or 3 days thereafter and started work on it a week later. He worked at it on and off for at least 6 weeks, performing his regular duties too, but "they finally got tired of calling [him] back and forth" and he was told to confine himself to the con- struction until it was finished. He thereupon did the neces- sary finishing work, completing it in about 3 or 4 days, "somewhere between last April and the 10th of May." Shaffer's testimony as to what the work entailed was as follows: Q. Okay. You said in the last four days you put the finishing touches on. What did you actually do during 19 He "wasn't doing a whole lot at the time" at his regular job as a mechanic and safety lane inspector, and had previously done other construction work in the shop 19 Respondent offered no corroborating evidence, either through a written inspection report or through the testimony of its insurance agent, Heimbur- ger (infra), of a March inspection dealing with the railing 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the last four days? Do you remember? A. Well, it was more of the construction of the hand- rail for the steps. That, and, then, just a few odds and ends. Smoothing down where it needs to. Where they was going to be having their hands on. Q. When you say construction, you referring to er- ecting the hand rail, putting it up, and then, smoothing it down? A. Well, this is-the hand rail consists of a fence around the balcony and down the steps. The one around the balcony is completely enclosed, and the one on the steps is a 2 x 4. And this one on the steps was the main thing on the last of it to get up. Q. How high are those steps? A. From the floor? Q. Do they go up about a story? A. Yes, ma'am. A. Warren Heimburger, sales representative for Sentry Insurance which issued policies to Respondent covering vir- tually all of its risks, including fire, casualty, general liability and workmen's compensation, testified that his company makes periodic plant inspections, the frequency depending on the size of the risk, and that this means four inspections a year for Respondent; that recommendations resulting from inspections are either "urgent" (which must be fol- lowed up), "important" (within the client's discretion), or "casual" (friendly advice), the last given orally unlike the first two which are so marked on the written inspection report; that an inspection conducted March 21 resulted in "important" recommendations to cleanup the place includ- ing installation of appropriate receptacles for dirty rags and removal of debris from the aisles, and recommendations to install a water main with fire hydrants around the building, to put a safety fire door between the body shop and the rest of the building, and to check and tag the fire extinguishers and obtain the necessary underwater laboratory-approved solvents for the paint shop; that another inspection was made in July by an engineer followed up by his supervisor that same month, resulting in follow-up recommendations on the water main and hydrants and as to the fire door, both of these being "urgent"; that the failure to take the needed steps by July despite their "urgency" was not unreasonable because they took time, and at least in respect to the fire door the delay was partly due to Respondent's having to wait until July to get information from the insurance com- pany as to where to purchase the door 20 201 sought to obtain for the record the underlying inspection reports Respondent was unable to locate in its files its copies of any relevant corre- spondence with the insurance company According to Helmburger , the insur- ance company's file for Respondent was in the possession of its engineer who was then on circuit and could not be contacted but was scheduled to rein- spect Respondent's premises the following week Respondent , to whom I issued an appropria te subpena , was unable to locate the engineer to effect service Counsel for the General Counsel was unwilling to agree to the posthearing introduction of the insurance company's file although not ques- tioning its authenticity She contended that responsibility for its production rested with Respondent who had called Heimburger as a witness and that in the absence of the reports ("the best evidence") an appropriate inference should be drawn against Respondent although Heimburger 's testimony could properly be considered While both parties were willing to continue the hearing until the reports became available and witnesses through whom they were offered could be subjected to cross-examination concerning them, I did not feel in all the circumstances that the matter warranted a delay in the e. Final preelection events About 2 days before the election, according to employee Wehrle, he was called into McKenzie's office where Mc- Kenzie asked him if he thought it would help to pay the Union to come in and talk for the men, and Wehrle replied that he did not know; that McKenzie said that if the Union came in it would take Wehrle 4 years under the contract to get journeyman status and Wehrle, with only 3 years, would be an apprentice; that McKenzie asked him to vote against the Union and said that if he did the Company would give him a raise, win or lose; and that McKenzie asked him to return the next afternoon and tell him what he decided to do, but that he did not return. McKenzie's testimony was that he called Wehrle to his office on that occasion to tell him that he owed McKenzie a favor and urged him to vote against the Union, and that Wehrle replied that he did not owe him a favor, ending the conversation. Also about that time McKenzie approached employee Shaffer, according to the latter, in the lunch area and asked what he thought would happen in a couple of days, and Shaffer replied that he did not know and that he had been on the Company's side at one time. McKenzie asked him what some of the Union's good points were, and Shaffer mentioned holidays and insurance. About noon on the day before the election 21 Campbell delivered the following speech on the inspection lane to all the employees: Men This last opportunity I'll have to talk with you as a group and I want to go over a few last minute things concerning your decision on this Union matter. I don't like to use these notes, but I have to have a record of what I say-I know that you are being told that the Union is going to get everyone a nice big raise and that if your satisfied with the l0¢ I gave you, OK. I have told you that I thought you would be satisfied with my management of the deal without the Union. If you don't believe me and want to believe the Union go ahead-I hear the Union is promising you that ev- eryone will be making a min. of $4.50 except appren- tices, and we'll begin raising from there in negotiations.-If you believe that, then you better vote for the Union. I also know you're being told that you will get the Teamsters pension fund by paying $5.50 more a month then the $9.00 dues you get $350.00 a month pension after 5 yrs. of paying into the plan. That may be true-I don't know, but what they are not tell- ing you is that before that can happen, I have to agree to put it in a contract here and pay money into it also.-I have told you before that if you vote this Union in I am going to deal hard and cold with the Union and I don't intend to give an inch on anything unreasonable The law gives me that right and I intend to use it. Before you get into any organization that charges you $50.000 initiation and $9.00 a month, you better think about closing of the hearing 21 The election was held about 3 30 p in H. A. KUHLE COMPANY what good they'll do you, and what can happen once negotiations start. A perfect example I know of about negotiations is here @ Huss & Schleiper they were on strike 260 some days and after settlement they voted the union out because it did them no good. Now I am telling youyou had better think about your vote be- fore you get the Teamsters in here and are stuck with them, and all the problems they could cause. If you believe the Union is going to get you everything they say they will-then go ahead and vote for them, but remember 4 or 5 months from now when there still may not be any contract or any raise and the union is telling you you have either got to take what Bob Campbell offers or strike-don't come to me for help saying we made a mistake, I am telling you today it could hap- pen-After Wednesday if you vote for the union, you'- ve chosen them to help you and you'll have to stick with them because I can't help you then.22 On the morning of the election McKenzie asked Harpner, leadman in the body shop, how things were going and Hap- ner replied it had been slow getting started because some employees had visited the shop to talk about the Union 23 McKenzie reported this to Campbell who testified that Mc- Kenzie named the three and that he was aware of their union leanings. Campbell thereupon called Skowronski, Mortland, and Sowers into his office and told them he had been getting complaints from the body shop about their campaigning for the Union, and that if they did not stop he would "raise hell." According to Sowers, Campbell stated that it had happened on company time. The bodymen par- ticipated in the conversation but were not reprimanded. Sowers and Skowronski testified there is no rule against talking on company time and that they received no com- plaints about neglecting their work. Sowers denied that Campbell said at this time that they were free to vote for and campaign for the Union. Skowronski was not asked. Mort- land did not testify about the incident. Campbell testified he read the following statement to the men in question, except that he substituted "raise hell" for "have to take disciplinary action" because he "was getting a little hot under the collar": Fellows- I have been getting a lot of complaints from people in the shop that you 3 have been bothering them about the union. Now I want to get 1 thing straight, you fellows are free to vote as you want and campaign for the union all you want, but you do it on your own time and quit bothering these other people and disrupting the shop-I am warning you that if I get one more com- plaint, I am going to have to take disciplinary action- is that clear. According to Campbell, "just plain visiting" is not al- lowed in the shop; nor may employees talk about subjects other than business on company time, and although there are no published rules to this effect, McKenzie "is supposed 22 Emphasis Respondent's 23 He did not mention names , he said, but he was referring to Skowronski and Sowers Evidently Mortland had been there too 97 to have told the men" about this at meetings. Employees Mortland and Sowers testified that they have never been told that they were not permitted to discuss matters other than business on company time, and that they in fact did so in the presence of supervisors without incident.24 Unlike Sowers, however, who said that in his 8 years with the Com- pany he had never heard of any employees being told he should be in his own work place and not talking to others,25 Mortland acknowledged that sometimes in his 4 years of employment if there were not enough people at the back parts window to get the needed parts they were told "there's too much conversation up here, stay in your stall, and if there's over two or three guys there, come up. That was all." f. The election and objections The Union lost the election by a vote of 15 to 11 on May 24, and on May 31 filed objections to conduct affecting the results of the election. The objections were fairly similar to the unfair labor practice allegations. On July 21, the Acting Regional Director issued his report and direction of hearing to be scheduled by the Officer-in-Charge of the Sub-Region. On October 27, the latter ordered the cases consolidated for purposes of hearing. g. Postelection events Mortland and Sowers testified that they were called to a meeting of all the employees presided over by McKenzie and also attended by Campbell sometime between 10 days and 3 weeks preceding the hearing, at which McKenzie read a statement informing them when the hearing would be held and advising them that if the Company lost it could take two or three appeals consuming perhaps months or a year; and that during this period the employees could get no wage raise or other benefits. Mortland added that McKenzie re- peated the substance of that meeting's message the follow- ing day on their coffeebreak in the presence of one or more others whom he could not remember. On the last day of the hearing Skowronski testified that 2 days earlier, while standing at the timeclock with Mc- Kenzie, Shaffer, and the bookkeeper, McKenzie was talking about the hearing (which was then in its second day) and said he was wondering if it would not have been better to do what another company did, to wit, as soon as it heard rumors of a union in the shop it fired all the employees.26 McKenzie returned to the stand as the final witness in the case immediately following the above testimony of Skow- ronski. He was not interrogated concerning that testimony. He did testify that about a week before the hearing he read the following statement to the employees, and that he said nothing else at the time: I want to mention something that I am sure you are all 24 Zimmerman likewise had no knowledge of any prohibition but could recall no occasion when he was observed in the act by a supervisor 25 Later he said employees were free to "goof off" but then qualified this, when pressed, to "you had to be goofing off quite a bit before they ever said anithmg to you " 6 Skowronski testified that he did not report the matter to counsel for the General Counsel until that morning because he did not appreciate its impor- tance 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tired of hearing about and thats this union situation. 4. Section 8(a)(3) -Massey's departure The hearing will be held on Nov. 14 and all of you who Massey was hired as a mechanic by Respondent in Au- gust 1971. In October 1971 he was transferred to the office have some statements also. job. Massey testified that shortly after he contacted the who nts il may prhave to obably have Union, his workload increased; that he was ordered by Bob & I will be there to give our side and it probably will be a couple of months before we get a decision. If we lose we have the right to appeal the decision. Our appeals may take as long as a year . Of course if we win the union can appeal also. Until this hearing is over we are not going to do any- thing about our wage Structure . Bob will consult with our Attorney at the time to determine if we are free to give wage increases. We have not done so until now because we are already charged with unfair labor practice for doing so. McKenzie also testified that the foregoing statement had been prepared by Campbell and that the latter had attended the meeting. In this connection, Campbell had testified pnor to the employee testimony concerning this meeting: Q. Did you have any meetings with your employees after the election? A. No. Q. Now, as a matter of fact, Mr. Campbell, didn't you have a meeting with your employees several weeks ago, where you told them that if the company lost this case they were going to take it all the way to the Su- preme Court, and it would take several years before anything would have been decided? A. I never had a meeting, ma'am, with any of the- since the election I haven't had all my people together for-all of them, at one time, or in groups, like I had before, at all. Q. You've never made any of these statements to your employees. In groups. A. Not in groups, no. Q. Okay. Now, Mr. Campbell- JUDGE HERMAN Did you ever tell that to any of your employees other than in groups? THE WITNESS In a place like ours the grapevine is stronger than the word of mouth, it seems like. But I've never told-I might have discussed it with one, or something like that. Or they asked me what was going on, and I said there was a hearing coming up, and that was all that had ever been said. JUDGE HERMAN Did you tell any of your employees that you'd fight the case to the Supreme Court, and so it would be many years before they could get any bene- fits out of this? THE WITNESS No. I never told any employees like that. Q. (By Mrs. Benassi) Did you ever discuss the case with your employees in a group? A. No. McKenzie to take incoming calls in the service department which had theretofore been handled by McKenzie or Ron Harris; that he had to go down himself to the new trucks being serviced to get the necessary warranty information which had theretofore been gathered for him by McKenzie and Harris; that he had to "run parts" (pickup needed parts away from the building) "more and more often" which was not among his duties when he was first assigned to the job the previous October; that he was required for the first time to put shipping receipts on all warranty parts that were to be returned to GMC; and that in the meanwhile the warran- ty work itself had increased so that he was unable to handle his work "very well"; that when he had been given the warranty job he explained to McKenzie that he lacked mathematical ability but McKenzie told him not to worry because that was why they had an adding machine, and that when he made mistakes McKenzie simply told him to care- ful; that after he contacted the Union McKenzie would lose his temper and "bawl [him] out" for his mistakes about every other day; that before the Union the girls in the office would correct his mistakes for the most part but that af- terwards they watched more closely and brought them to McKenzie's attention "and he would jump on [Massey] about it more and more often," 27 threatening on one occa- sion that if he could not do the work "then you ain' t going to be doing it"; that the work began to pile up on his desk; but that he protested the added burden only once and never received a response from McKenzie; and that it was be- cause of McKenzie's treatment of him that he found anoth- er job and quit on April 3. On cross-examination, Massey admitted that he told Campbell he was quitting because he had found a better job; that job, with Norfolk & Western Railway Company, paid $5.25 an hour as against $3 with Respondent; 28 that he applied for that job initially in July 1971 but lacked the necessary experience as a mechanic (by 3-1/2 to 4 months) so went to work for Respondent in August and then reap- plied at Norfolk on March 1, 1972, before signing the Union card.29 Recalled later by the General Counsel, Massey stat- 27 Massey conceded that the girls may "possibly" have called his mistakes to McKenzie's attention before, and in response to the question whether he may have been making more mistakes during this period , he said, "Possibly, yes, sir I don't know " 28 His request for a raise had been rejected 29 His testimony in this connection was somewhat less than frank Q Mr Massey, when did you apply for ajob at Norfolk & Western9 A It was in March that I applied Q Could it have been March 1st, 19729 A I don't remember the exact date Q Have you ever seen Mr Scott's signature on anything9 A Yes, I have Q Mr Massey, I'm going to show you a letter which is on the Norfolk & Western Railway Company head, and over the signature of J A Scott, H. A. KUHLE COMPANY ed that about a week before March 1, by which time he had gained more than the needed experience for Norfolk, an incident arose in which McKenzie called him a liar and that this upset him. McKenzie placed the incident in late March.3o Massey also admitted that the change in answering the telephone involved the introduction of a new system. Prior to the change the operator rang the shop area where Mc- Kenzie and Harris were working. After the change she no longer rang the shop area but the office where Massey was working, and he merely had to reach over his desk to Mc- Kenzie's to pick up the phone.31 He further admitted that prior to the assignment of the new duties he testified to, there were times when he completed his regular work before quitting time and had to report to McKenzie to be given other work. McKenzie testified that Massey's assignment to clerical duties in the fall of 1971 initially entailed his computing the mechanics' time and labor cost on the customers' work orders; that since this included the warranty tickets, it was decided around the beginning of January 1972 to transfer to Massey the control of the warranty parts; 32 and that later master mechanic And, I want you to just read the letter to yourself Q Does that refresh you recollection any, of when you applied at Norfolk & Western Railway Company? A As the letter states, Q When A. It says, March 1st Q Before you signed the Union card A According to that letter, yes Q Is it correct, or isn't u9 A To my recollection. I was sure it was afterwards Q You were sure what was afterwards) A That I went to see- JUDGE HERMAN How do you feel about it now) Was it before9 Was it March 1st, or wasn't 0 THE WrrNm According to the letter, it was March 1st JUDGE HERMAN Well, is that right, or not9 THE Wm,Ess Yes, it is Q (By Mr Lowry) So, you're now stating that you did apply for a position at Norfolk & Western Railway on March the Ist9 A Yes Q Had you ever applied for a position at Norfolk & Western before9 A I had talked to them, yes Q When A It was in, I believe, July Of '71 Q What did you talk to them about9 A Possibility of employment Q So, you actually talked to Norfolk & Western Railway in July of 19719 A Yes Q About employment A Yes Q And, what did they tell you, at that time? A Told me that I didn't have the required time Q And, what was the required time9 A Four years' experience as a mechanic Q So, what did you do then A I go the job with Mr Campbell Q As what9 A As a mechanic Massey also applied for another Job in November or December, accord- 30 mg to his testimony, but rejected that company's offer of what he "believe[dl" was $4 12 an hour He did not say why 31 Only if the call was for McKenzie or Harris did he have to leave the office to locate them No reason appears why Massey could not have had the operator buzz the shop in such a case 32 Transfer of this task to Massey involved a conversion of the filing system for work orders from numerical to alphabetical, the former system having 99 on, in March, he was asked to answer all phone calls for the service department because customers were complaining about not being able to get phone calls in the shop, and they could be answered quickly at the desk by Massey who could ascertain the nature of the calls, handle some himself, and refer the others. McKenzie also testified that about a week before Massey left he came to McKenzie and asked, "Would you be mad if I quit?" McKenzie asked why, and Massey answered that he had secured a job at Norfolk's diesel repair shop on the strength of an application reciting that he had obtained the required diesel training at H. A. Kuhle Company; 33 and McKenzie told Massey he had no objection to Massey's leaving. 5. Section 8(a)(5)-The authorization cards Massey, Mortland, Zimmerman, Skowronski, and Sowers all signed authorization cards at the union office on March 6 in each other's presence. According to Massey the cards had been given to them by President and Business Repre- sentative Clapper who stated they were membership appli- cations and that signing them would protect the men against being fired if the Company learned of their attempt to or- ganize. They all read the cards before signing. Wehrle and Shaffer read the cards that were given to them without explanation by one of the office girls at the union hall on March 7, and signed them. Meyer, Neeley, and Dickson read their cards at the union hall before signing them on March 7. They received the cards from one of the union men there. Meyer could not recall what the man had said, but Neeley testified that they were told the cards were mem- bership applications and to protect their jobs "and see how many wanted a union in," and that nothing was said about an election until later. Dickson's testimony was that they were told the cards were forjob protection "and if they were voted in, then, this was my application to become a member of the Teamsters." Zeeb signed at the union hall on March 7 after reading the card. Asked what the union man told him at the time, he replied: "He said it would be-it would protect my job. And, I wanted to join the Union." Good- bred, Kaufman and Smith signed at the union hall on March 8 after reading the cards and, according to Good- bred, after being told by the union representative that the cards were "to show that the Union was going to represent us." Smith did not remember what they had been told, and Kaufman said he did not remember being told anything by the union man. 4 Seibert signed his card on March 7 at the Company's place of business after reading "the top part" and just glancing at the remainder. He did not recall any- thing that was said to him at the time. Cravens and his become too cumbersome for speedy retrieval for discussion with the growing number of customers 33 He apparently had not since his mechanic's Job at Kuhle had lasted only from August to October, which was short of the 3-1/2 to 4 months needed 34 Kaufman said that despite his reading the card (bearing at the top, in large dark print, the words "Application for Membership") he did not under- stand it to be such an application because he had been told by other employ- ees, before going to the union office, that "it was mainly on job security", but he also testified that in the very same conversation those other employees "said they'd like for us to go over and listen to the Union, and just hear what they had to say " 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD step-father, Foshee, signed their cards at the union hall on March 8 after being told that they were for job protection and "a count to see how many people were really interested in the Union." He filled out both his card and Foshee's because the latter did not have his glasses, but he did not otherwise read the card except for the words, "Application for Membership." Bond and Tolly signed cards at the union hall immedi- ately following the meeting of March 11. Tolly filled out his card after reading the words, "Application for Member- ship." Bond said he could not do so, and at his request Charles Austin, secretary-treasurer of the Union, did it for him. Tolly testified that the explanation of the card's pur- pose given at the meeting was that it was an application for membership and would provide job protection in case of dismissal for contacting the Union, and "that there was no obligation." In response to the question , "During this expla- nation, was an election mentioned in this presentation at the Union hall?" Tolly stated, "Yes There would be an elec- tion." He admitted, however, that his recollection of what had been said at the meeting was poor . Bond's memory of what they had been told at the meeting was also vague. He did not remember whether anything had been said other than that signing the card would protect the job. Union President Clapper, who delivered the address at the March 11 meeting, credibly described the substance of his remarks as fairly paralleling those he had made to the five employees who had come to the union office on March 6, to wit, that he would first use the cards to seek voluntary recognition but that since this was rarely granted the proba- bility was that there would be an election; that the cards would also serve to protect them in the event of adverse action by the Company after it learned of their interest in the Union; that the cards also constituted regular member- ship applications involving a $50-initiation fee and monthly dues of $9, but that there would be no charges until such time as the Union had been granted voluntary recognition or had won an election and consummated a contract. This testimony was substantially corroborated by the Union's secretary-treasurer, Austin; and employee Hilligoss testified that Clapper had said he would send Campbell a certified letter, and he could recall nothing else that Clapper had said. Hilhgoss, however, who had signed his card on March 9 at the union hall, i.e., 2 days before the meeting with Clap- per, testified that he was told by the men who gave it to him that the card was for job protection and that if the Union were "voted in" the card was a membership application but that if it was not voted in he was under no obligation to it, so that he understood there would be an election before the Union became the employees' representative . Although de- nying that he read the card, even the words "Application for Membership" in large print at the top, he admitted that he "saw" them and that he read enough of the card to enable him to fill it out. He made no attempt to get his card back after the March 11 meeting. Younger signed his card at the union hall on March 7 after reading it . It was given to him by Massey who, he testified, told him that it was forjob protection and was an application for membership "if the Union was voted in." Massey testified that he explained to Younger at the time that Clapper would first seek voluntary recognition but that there would probably be an election because he did not think Campbell would grant recognition . Younger did not try to get his card back after attending the March I1 meet- ing where Clapper confirmed what Massey testified he had said were Clapper's plans Hapner read, filled out, and signed his card on March 7 in the body shop. The card was given to him by Sowers who told him that it was forjob security and that most of the men had already signed. No one else was present . On direct examination he could recall nothing else that Sowers had said at the time, but on voir dire, in response to the question whether Sowers had mentioned anything about an election, Hapner stated, "I think they (sic) said that they had to have so many cards before they could have an election , or some- thing like that." 35 B. Analysis 1. 8(a)(1) a. General It is clear from the foregoing that Respondent, faced with the organizing drive to which it was concededly hostile, and determined to defeat it, launched a counter campaign of speeches and other action directed to that end . Some of its conduct exceeded the bounds imposed by the Act; some of the conduct charged and found, however , was not unlawful; and some did not occur as charged. The incriminating evidence came from a substantial number of employees, most of whom impressed me as straightforward on the basis both of demeanor and general consistency.36 Indeed, some of these employees were, on the whole, favorably disposed towards Respondent. On the other hand, I have found Respondent's principal agents to whom the alleged misconduct had been attributed to be less reliable on the basis of their demeanor and of serious dis- crepancies and other weaknesses in their testimony , some of which has not yet been mentioned but is described infra. Accordingly , I have resolved actual testimonial conflicts against Respondent 37 except where otherwise noted on the strength of specific considerations indicating a contrary conclusion . At the same time it must be observed that some of the misconduct testified to was admitted and insufficient- ly explained away, and some was undenied save in the most general terms like McKenzie's testimony concluding his di- rect examination: Q (By Mr. Lowry) Mr. McKenzie, can you recall any other conversation with any employee regarding union activity? 15 Morr signed a card in the shop on April 20 after reading it Sowers, who gave it to him, said it was an application for membership and would protect his job 3 Noted also was their readiness (except for Goodbred and Massey) to bear witness against the employer for whom they are still working See Georgia Rug Mill, 131 NLRB 1304, 1305, The Coca Cola Company, Foods Division, 196 NLRB 892, fn 5 37 In some instances bolstered by additional grounds specifically set forth H. A. KUHLE COMPANY A. No. Q. Did you have any other conversation? A. No. Q. With any other employee, regarding the Union? A. No. I do not deem such testimony an adequate negation of specific accusations, particularly since McKenzie was not present to hear the adverse testimony which might well have served to remind him of certain forgotten events not con- templated in his overall denial. Even were I to assume (de- spite the absence of supporting evidence in the record) that in his preparation to testify all such matters were brought to his attention by Respondent's counsel, his demeanor in responding to questions concerning each incident alleged by General Counsel's witnesses was a fit subject for my observation the absence of which was not compensated for by the single denial. Of special significance in this connection was Respondent's facile denial, in its statement of position to the Regional Director upon the filing of the charge (G.C. Exh. 29), that McKenzie had engaged in any of the challenged behavior or had even been aware of Massey's union involve- ment prior to his separation. Either this was cavalierly done without having consulted McKenzie, as both he and Camp- bell testified, or else the information Respondent gave its attorney was knowingly false in at least some respects be- cause, as shown above, McKenzie admitted to some ques- tioning of Massey in March concerning the Union and admitted to knowing of Massey's interest in the Union in March. Further undermining McKenzie's credibility, in my opin- ion, was his denial that he had discussed the case with Respondent's attorney until the day prior to his taking the witness stand . Not only did such position inherently lack veracity, but Respondent's attorney admitted at the hearing that he had "had several conversations with Mr. McKenzie from the period from late March through yesterday." Counsel's attempt to explain McKenzie's lapse by contend- ing that all McKenzie had reference to was his "testimony in today's proceeding" ignores the breadth of his denial: Q. Mr. Lowry never talked to you about whether any of these things had happened after that election? A. No. Q. When was the first time you ever discussed your testimony with Mr. Lowry or gave him your side of what had happened? I have also noted McKenzie's self-contradictions in re- spect to his discussions with employees concerning the Union. After testifying on direct examination to certain conversations he had with Younger and Wehrle about the Union he flatly, repeatedly, and emphatically denied on cross that he had ever discussed the Union with any employ- ee but Massey. Of this he was "absolutely sure," beyond the possibility of faulty recollection. Yet when he was specifi- cally asked on cross about his attempt to persuade Wehrle to vote against the Union he repeated what he had said on direct. This peculiar behavior cannot be explained as a sim- ple misunderstanding because in the very midst of his firm 101 denials, Respondent's attorney interjected that "the witness on direct examination has already testified to other conver- sations." Nor has any other explanation been suggested by Respondent. Finally, I have taken note of Campbell's denial, supra, that he ever met with his employees as a group since the election, in light of his preparation of the statement (Resp. Exh. 7) read by McKenzie at the employee meeting called by him and attended by Campbell just a couple of weeks before the instant hearing. b. Prestipulation period Respondent's conceded strong hostility to the Union commenced to manifest itself in conduct inimical to the employees' Section 7 rights immediately after it appeared that the organizational activity had begun. On the very day following the signing up of the first five employees Mc- Kenzie admittedly asked Massey whether he knew anything about any union activity in the plant; when he replied in the negative McKenzie asked him, according to Massey, to as- certain what union the men were trying to get into the shop and Massey pretended to agree.38 That same day McKenzie asked Body Shop Foreman Hapner whether he had signed a union card. Upon learning the following day of Massey's prounion leanings, McKenzie became enraged and threatened Mas- sey against any further activity on the Union's behalf "or else," simultaneously displaying a clenched fist. Again I discredit McKenzie's version of this conversation. As Respondent's brief says, the disclosure of Massey's bent for the Union after the previous day's conversation " came as a surprise to McKenzie." Yet there was no reason for such "a surprise" on Respondent's theory. McKenzie's version of the entire previous day's conversation was that he asked Massey "if he knew of any union activity on the floor" and that Massey replied, "None." There was no inconsistency between such a lack of knowledge on Massey's part and a subsequent conversation about the Union, and hence no occasion for "a surprise." 39 Moreover, Respondent's brief assigns two reasons for the "surprise," one being that "[he had] believed Massey earlier." Again, on Respondent's theory the reason adds nothing to the "surprise" defense. On the other hand the "surprise and belief" make much sense given Massey's version of the earlier conversation because after agreeing to engage in surveillance for Mc- Kenzie, his prounion stance must have seemed a gross act of perfidy which could easily warrant an outburst like that described by Massey. Such a threat, of course, is a clear violation of Section 8(a)(1), and although its force was reduced by McKenzie's return within a half hour to tell Massey that nothing he had said meant that Massey was fired, the memory of the clenched fist and accompanying "or else" must be deemed to have survived. Moreover, the request that Massey ascer- 38 For the reasons above, I have credited Massey's version of this conversa- tion over McKenzie's 39 Indeed, if all Massey said was that he had heard nothing about union activity, McKenzie would have had no reason for surprise even if Massey had simultaneously proclaimed his preference for the Union 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tain the identity of the Union was a form of solicitation to engage in surveillance which, while not on its face perhaps as serious as a similar solicitation to identify union adher- ents and hence not strictly controlled by cases holding such solicitation to violate the Act, nevertheless sought to obtain through a unit member organizing information which Re- spondent evidently recognized it was not entitled to gather directly, and this also violated Section 8(a)(1). Cf. Lawler's Cafeteria & Catering Company, 138 NLRB 358, 360. In this context, moreover, and in view of the other violations found infra, I also find McKenzie's interrogation of Massey and Hapner coercive and violative of Section 8(a)(1). See N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302 (C.A. 5, 1973). A few days after the Union's recognition request was rejected, as we have seen, McKenzie told Massey he was glad because the Union's bargaining demands would have caused a strike.40 This statement, together with the repeated references to a strike in Campbell's speeches (considered in more detail, infra), amounts to an unlawful warning of the virtual inevitability of a strike. Cf. Clapper's Manufacturing, Inc., 186 NLRB 324, enforced, 458 F.2d 414 (C.A. 3, 1972). McKenzie's further statement that in the event of a strike Respondent "wouldjust close the gates" constitutes a sepa- rate violation, in my opinion. I see this statement not as a mere declaration of intention to keep the plant closed for the duration of the strike, but as an unmeant threat to go out of business, another in the chain of threats calculated to discourage support for the Union. When it became clear, following Campbell's rejection of the Union's request for recognition, that an election would resolve the issue, McKenzie assumed a more aggressive role. He threatened Massey and Younger that in the event of a union victory the employees would no longer be able to work on their own cars on the Company's premises, and he also told Massey that if the Union came in the employees would no longer get discounts on parts and that the existing laxity for tardiness and failing to return tools to the tool crib would be replaced by discipline. Such threats to harden working conditions were obvious additional violations of Section 8(a)(1). As indicated above, McKenzie's testimony touched only on the matter of the men working on their cars, and his sole explanation (fn. 7, supra), was that if the practice were permitted to continue grievances would be filed on the theory that Respondent was discriminating against those employees who chose not to use its facilities for this purpose. Evidently aware of the implausibility of this argument, Respondent modifies it in its brief to urge that the reason to anticipate grievances was that "not every employee could use the shop simultaneously and a question of fairness would always be present." One difficulty with this position is that, as has been stated, it is at odds with McKenzie's testimony on which it purports to rest. More- over, the brief, going quite beyond the scope of McKenzie's testimony, seeks to extend the argument as well to the dis- counts on parts. Just how the inability to "use the shop 40 As shown above, McKenzie's version was that the men might have struck over the grant of recognition In addition to the general reasons I have stated for resolving such conflicts against McKenzie, his position is particu- larly weak here because it suggests that the men did not want the Union As simultaneously" bears any relation to the parts discounts is nowhere explained, as indeed it could not be. McKenzie also continued his probing during this period, asking Hapner-who, on the basis of his earlier interroga- tion and the position he held, appeared likely to favor the Company-if he knew "what was going on about the Union." And he told several employees, as Neeley testified, that if the Union came in, the night shift would work later hours and that four men would have to move to the night shift, which consisted only of three at the time. As shown above, McKenzie's testimony made no mention of a change in hours but he did admit having said that four men would have to move to the night shift, although he geared it to a "strict seniority" system rather than to a union contract. However, not only did he not specifically deny that the conversation had involved specific reference to the Union but the very concept of "strict seniority" is virtually peculiar to the presence of a union. This supports the General Counsel's position in respect also to the work schedule revision Massey was ordered to prepare. Since that schedule (G.C. Exh. 7) reflects the change in hours testified to by Neeley as well as an increase in the size of the night shift it tends to corroborate Massey's testimony that McKenzie had told him that the new sched- ule would become effective if the Union came in. However, I do not find, as urged by the General Counsel, that Mc- Kenzie told Massey to notify Mortland that he was one of the four who would have to change shifts. I note the absence of any evidence that McKenzie resented Massey's dere- liction in failing to execute such an order or that McKenzie even inquired as to whether it had been executed. I also note that while Mortland's opposition to night shift work was clear, the record nowhere indicates that the other three men to be affected were not so opposed, yet neither does it appear that McKenzie took special pains to bring the matter to their attention. Finally, in view of the stress placed by the General Counsel on the frequency of mechanics' visits to the office where the schedule was clearly visible, a special message to any of them seems superfluous. Nor do I find merit to General Counsel' s contention re- garding the poster dealing with safety equipment. McKen- zie testified without contradiction that Respondent had never purchased safety equipment for its employees. And there is no evidence to rebut the inference that the men bought their own. General Counsel's reliance on Massey's testimony in this connection is misplaced. All he testified to was that he had not been required to purchase any prior to March 1, 1972, at which time he was not working as a mechanic; and he admitted that he did not know about the other employees. In these circumstances, I do not credit Massey's statement that McKenzie said the policy would become effective only if the Union came in, and General Counsel has failed to sustain the burden of proving that the policy was other than as described in McKenzie's testimony and as announced to the employees at a service meeting, i.e., that in replacing existing equipment at any time thereafter the men should follow OSHA requirements. c. Poststipulation period will appear below, the record indicated precisely the opposite Respondent's efforts intensified once the election date H. A. KUHLE COMPANY was set. Its principal concentration was on its meetings with the employees, but it also found other means to spread its message. Although the General Counsel questions Respondent's position that its affirmative case at the meet- ings was made entirely by reading the prepared remarks contained in its various exhibits 3-5 and relies primarily on the employees' testimony of what was said by Campbell, I do not share such doubt. Campbell's testimony in this re- gard is supported by substantial employee testimony that he was reading; furthermore the substantive remarks recalled in the employee testimony are sufficiently corroborative of the written documents, and variances may as readily be explained on the basis of the employees' imperfect memo- ries as on the self-serving nature of portions of the docu- ments; and finally, the documents as a whole, in my opinion, hurt more than help Respondent's case, as will now appear. (1) The speeches Campbell launched his series of employee meetings with one for the entire unit complement on April 21 , the day following execution of the stipulation for consent election. His speech left no doubt of his strong opposition to the union, but, although containing statements apparently care- fully skirting the fringes of legality ,41 was not unlawful in itself. Thus, he commenced by assering he "kn[e]w " (which, as far as the record shows, he did not) of "pressure" put on the men by some' employees to sign cards, but that their signing did not commit their votes in the upcoming election. He then went on to say that he had his ideas about running the place, and "Just because the election is coming up and you may choose to have the Teamsters represent you, I am not going to change my mind about what I want to do here," from which an inference could be drawn that if he had made up his mind to have certain working conditions he could not be induced to change it and bargaining therefor would be futile . I do not draw the inference at this point but note the matter for further consideration, infra, in a broader context. Campbell continued by indicating he would deal with the Union if it won the election but that "just because you vote a union in here the Company doesn 't have to do anything. Nothing will ever be done here Union or no Union without Company agreement." He added that if the Company did not agree to "something unreasonable" the men's only alter- native to yielding to the Company would be to strike. And he concluded by stating his opinion that the men would not benefit by paying money to an outside organization, and by expressing the hope that each would be "man enough to talk for yourself' (emphasis Respondent's). The suggestion that it is unmanly to accept the statutory policy favoring collec- tive bargaining seems a snide appeal to passion over reason but not in itself unlawful. Campbell continued his speechmaking in the group ses- 41 I say this advisedly because regardless of grammer, syntax, vocabulary, and spelling, the speech, purportedly written entirely by himself save for his bookkeeper's assistance in spelling, reflects a remarkable understanding of an employer's rights under the Act for one who admittedly "wasn't versed in union matters at all" when he received the recognition request In point of fact, Respondent's brief states that preparation of the speeches followed Campbell's receipt of advice from his attorney 103 sions he thereafter conducted, commencing each meeting with prepared remarks which uniformly reiterated his initial statement that signing a card did not bind an employee in any way and "set [the men] straight" as to any illusions they may have had that the Union was a guarantee to better conditions. On the contrary, a union victory irr the election "will only give you the right to sit down and begin talking with me. I don't have to agree to anything. I don't want to and you can be assured I won't agree to anything I feel is unreasonable. The law allows me the right to deal hard with the union-and you can be assured that I will." Of course it is true that an employer may be "hard" with a union and that he is not obliged to agree on anything in particular or to reach agreement at all. But Campbell did misstate the law in saying that the Union's certification would only give it the right "to sit down and begin talking." Implicit in his remarks was a rejection of his obligation to bargain in good faith in an attempt to reach agreement. Instead he "assured" the employees that he would not agree to anything he felt to be unreasonable, a jump from the statement in his earlier speech that he did not have to agree to anything objectively unreasonable. The obvious inference to be drawn by the employees from the conjunction of speeches thus far was that his "deal[ing] hard" would consist of his refusal even to listen to argument which might, in the words of the earlier speech, cause him to "change [his] mind." If that happened, he added, there was "no choice but to strike," and if they did strike they ran the risk of replacement. The natural inference from this was that the men stood an excellent chance of losing theirjobs even if they struck to protest an unlawful refusal to bargain, a further unlawful misrepresen- tation of the law. See Tommy's Spanish Foods, 187 NLRB 235, enforced as modified in other respects, 463 F.2d 116 (C.A. 9, 1972). Proceeding next to his point marked "4th," Campbell assumed for the first time, arguendo, that he would bargain seriously, stated that the negotiations would "start from scratch," 42 and cited "some union contract provisions around this area ."43 He noted a management rights clause, commenting "even with a contract we still would run the business as we see fit," thus leaving the false inference that bargaining was futile because first, a similar rights clause was inevitable, and second, under such a clause the employ- er had as much authority as if there were no contract or bargaining representative. He also pointed to a checkoff clause, commenting that the payroll deduction "includes assessments the union may authorize, also, and you pay whether you want to or not because you never get the mon- ey," again substantial misrepresentations, because first, the individual employee would have to "want to" in order to make any deduction legal, even assuming Campbell agreed to such a clause, which "hard" employers generally do not; 42 While such a statement is not itself a violation, as Respondent argues, it has been held a violation in a context of other coercive conduct. E.g, American Manufacturing Company, Inc 196 NLRB 248 fn. 2, The Coca Cola Company, Foods Division, 196 NLRB 892, N L R B v. Kaiser Agricultural Chemicals, 473 F 2d 374 (C A 5, 1973) 1 find it coercive here because of the contrast noted below between this threat and the promise to do more for the men if they forego the Union, and because of the overall coercive atmo- sphere 43 Although this sounds like more than one contract, it was only one, and not a Teamsters contract 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and second, because the failure to pay assessments-as dis- tinguished from dues and initiation fees-could not serve as a lawful basis for discharge in any event , and any attempt by the Union to compel Respondent to make such deduc- tion would have violated the Act. J-M Poultry Packing Com- pany, Inc. d/b/a Dixie Broiler Co., Inc ( United Packinghouse Food and Allied Workers, Local 673 AFL-CIO), 142 NLRB 768, 769. Then came the announcement of the wage increase 44 which, until then , had been contingent upon authorization from the Kuhle estate which was purportedly given now because Campbell was close to buying the place. 5 Indeed, he continued, he had "a lot of ideas" for improvements but could do nothing now for fear of having the Union charge him with "attempting to bribe you." 46 However, and de- spite the "closeness" of his "closing the deal," he noted the possibility that he might not buy the place and that nobody might, in which case the business would be "terminate[d]," and to "be honest" with the men, he announced, "I don't want to buy a dealership where the employees feel they need a union to represent them and where there will be possible labor trouble." He went on to "promise ... if you'll give me a chance to work directly with you . . . that I am going to be fair and reasonable," and he concluded by saying that until then he could not do anything "because of the election coming up" and "[his] hand tied because of it," but that if the men "g[a]ve [him] a chance," they could be "assure[d]" they would not need a union to talk for them. As between the carrot of fairness and reasonableness for giving him a chance and working directly with him and the stick of hard- ness (which in his terms necessarily translates into unfair- ness and unreasonableness) for feeling they need a union-if indeed against his better judgment he even bought the place-it is difficult to choose which had the greater impact on the employees ; but that both were coer- cive in the circumstances of this case can scarcely be doub- ted. Campbell's final speech , once again to all the employees, came the day before the election and was brief . On this occasion "hard" became "hard and cold" in describing how he would deal with the Union if it were voted in, and he would "not give an inch on anything unreasonable ." By this time, however, as indicated above, "unreasonable" had vir- tually became the descriptive adjective for any demand by the Union. And he again warned of a strike as the culmina- tion of lengthy negotiations , mentioning a local company as an example . As indicated supra, Respondent's constant and persistent efforts to impress upon the employees the futility of bargaining and the inevitability of a strike as the neces- sary consequence of a union victory in the election violated 44 Analyzed in detail in section (2), infra 45 He testified that they were "more or less agreed on price at that time And it looked like the banks were going to loan me the money And [Mrs Kuhle] said , being we're this close, if you want to go ahead and give the men the Ten Cent an hour raise , go ahead " 46 Even if this legal position were sound, which it is not (Sinclair & Rush, Inc, 185 NLRB 25, Dodson 's Market, Inc, d/b/a Dodson IGA Foodliner, 194 NLRB 192), surely the law is not such an ass as to condemn an employer's promises while tolerating his statement that but for such condemnation he would make the promises See McCormick Longmeadow Store Co, inc, 158 NLRB 1237, 1242 Section 8(a)(1). In making this finding I am fully cognizant not only of the protection afforded a charged party by Section 8(c) of the Act but also of the more basic First Amendment guarantee. But I find Campbell's three speeches, considered together, and in the context of Respondent's other unfair labor practices, to constitute not a mere expression of views to discourage union support but a part of a coldly calculated attempt to repress such support by deceit and intimidation on the one hand and by the announcement of the wage increase and implied promise of additional benefits on the other. At the very least the speeches reasonably tended to produce that effect, and "The question is not only what the employer intended to imply but also what the employees could reasonably have inferred." N. L. R. B. v. Kaiser Agricultural Chemicals, 473 F.2d 374 (C.A. 5, 1973). Neither the First Amendment nor Section 8(c) protects a statement which, "considered only as to the words it contains might seem a perfectly innocent statement, including neither a threat nor a promise," if when viewed under all the circumstances of the case it "form[s] a part of a general pattern or course of conduct which consti- tutes coercion. . .." N.L R.B. v. Kropp Forge Co., 178 F.2d 822, 828-829 (C.A. 7, 1949), certiorari denied 340 U.S. 810 (1950). (2) The wage increase As has been shown, Respondent, despite telling the em- ployees that it was unable to give them any new benefits until the labor dispute was settled, granted the employees a 10-cent increase across the board, effective May 5, about 3 weeks before the election. It attempted to justify it as the fulfillment of a promise made at a meeting in January at which time Campbell's desire to continue a company policy was frustrated by the Kuhle estate's refusal to permit it. The testimony adduced by Respondent failed to establish the existence of such a policy. Its witness Baker recalled the policy as starting "4 years" earlier which, it developed, meant only back to 1970 and involved a straight 10-cent raise each January. McKenzie, however, who testified he had coauthored the policy with Mr. Kuhle, had it starting in January 1971,47 in the amount of 25 cents. Moreover, six of the men were denied the benefit in 1971 for various reasons as to some of which McKenzie's testimony was conflicting, as shown above, and as to one of which consist- ency would have required disqualification of at least one present employee for the instant raise.48 In the final analysis, McKenzie admitted that prior to 1972 the determination was made on an individual merit basis.49 In contrast, as 47 Campbell agreed that all raises were on a merit basis prior to 1971 48 Thus, the principal reason assigned for denying the 1971 raise to Wehrle was that he was a new employee, having come aboard only 7 months earlier However, Morr received the raise in May 1972 after 18 days of service with the Company 49 His testimony was as follows JUDGE HERMAN And do you have any standard by which you decide who gets it and who doesn't? Or is it simply an arbitrary judgment you make that you like this man's work and he's going to get it and you don't like that man's work and he's not going to get it Even though he's still satisfactory enough to stay on the roster WITNESS He would be-the person that I would decide if his work was satisfactory that I could pay him more money, he would get more money if a person's work wasn't good enough for me to give him any more money, H. A. KUHLE COMPANY stated, the 1972 raise was across the board. Nevertheless, if the raise had been given in accordance with a promise antedating the advent of the Union, as urged by Respondent, it still would not have run afoul of the Act. The alleged promise, as testified by McKenzie, was that he would continue to seek it from the estate. And Campbell testified that he had tried unsuccessfully several times, suc- ceeding finally because he was "close" to consummating his purchase of the business. In view, however, of the many inconsistencies in Respondent's testimony concerning the wage policy as well as the general credibility considerations noted herein, and in light of the contemporaneous unfair labor practices and the fact that actual purchase was still almost 2 months away, I do not credit Campbell's testimony in this respect and find instead that, even assuming the promise testified to by McKenzie, the Kuhle estate would not have withdrawn its objection to the raise but for a purpose to defeat the Union in the election, a purpose Mrs. Kuhle concededly shared with Campbell. Accordingly, the wage increase violated Section 8(a)(1). (3) Promises at the meetings and their fulfillment Not only were Campbell's statements at the meetings concerning his inability to make promises belied by his prepared speech to the various groups, as shown in section (1), supra, but consistent with the speech were his promises to see what he could do to remedy many of the problems raised by the men at his invitation immediately following the speech.50 Indeed, to some extent he went beyond this, as by admittedly promising to attend shop meetings, and offering in response to one complaint about having to work any overtime at all, to hire an additional parts man so as to reduce the overtime work; and in telling the parts employ- ees, who visited him to inform him they were "on his side, and . . . didn't want to go for the Union," that they were entitled to premium pay for overtime and should get it if the Union lost the election but would have to bargain about it if the Union won.51 An employer's solicitation of employee grievances or complaints "as an instrument to defeat the union" violates the Act. N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302 (C.A. 5, 1973). In the entire context of the meetings and of Respondent's campaign conduct generally, I find that the solicitation here "amounted to implied promises of bene- fits," some of which were then in fact confirmed specifically, thus unlawfully interfering with the employees' Section 7 rights. Eagle-Picher Industries, Inc., 171 NLRB 293, 299- 300. The actual fulfillment of any such promise prior to the election constituted further independent violations of Sec- but I think he might be able to become good enough , I'd keep him at the starting salary 50 Even employees friendly to the Company so testified, including Kauf- man 51 Contrary to Respondent's contention, I do not discredit Tolly's testimo- ny in this connection simply because he gave it on cross after confrontation with his written statement to the General Counsel and retracted a stronger statement he had made on direct examination Campbell's admitted state- ment that if the Union lost he would "straighten everything out" with the men concerning this point is not substantially dissimilar 105 tion 8(a)(1), Id. at 293; Texaco Inc., 178 NLRB 434, 435.52 These included the extensive measures, credibly testified to by Goodbred, entailed in cleaning up the place and in im- proving the existing washup facilities. Also attended to was the handrail.53 Respondent offers no explanation of its improvements in the "bathroom." But it defends its action in respect to the cleanliness of the shop and the handrail on the ground that its correction of these conditions was not by way of response to the employees' complaints but was required under its insurance policy as well as state law and that the handrail was also required under OSHA standards. Although Camp- bell testified that he so indicated to the men when the hand- rail matter was raised, such testimony, contrary to Respondent's brief (p. 5), did not extend to the cleanness of the shop. While he testified that the insurance inspectors had called his attention to the dirty conditions, there is no evidence that this was communicated to the employees.54 Indeed Campbell himself testified that his reply to Sowers' complaint about the dirty conditions was that "I couldn't promise him or do too much about that, at this time." I do not credit Campbell's testimony that he even told the employees about any legal or insurance requirements for the handrail. As shown above, neither Tolly nor Cravens, Respondent's witness, testifying about this conversation, mentions it, and Seibert, also testifying for Respondent, could recall no such mention by Campbell. When an em- ployer undertakes to solicit complaints from its employees and then proceeds to remedy them while an election is pending it would seem that he should at least inform the employees of any legitimate motivation he has rather than the approaching election, as indeed Respondent did here in respect to the wage increase. For if the reasons for an employer's action are "known only to him" there is room for implication that the action is taken "for reasons unrelated to economic necessities." Cf. N.L.R B. v. Gissell Packing Co., 395 U.S. 575, 618 (1969). Moreover, if he has already started to correct this matter in question for a valid reason he should so inform the em- ployees, as Respondent did here in connection with the men's expressed interest in a pension plan. Yet Campbell's own testimony utterly fails to indicate that work had begun on the railing, and the testimony of Tolly and Cravens fails 52 I find no ment to General Counsel's position as to the immateriality of whether the correction of the conditions complained of occurred before the first or a possible second election On this record I believe that to the extent Respondent had meant to use the grant of such benefits as a weapon it would not have reserved such use for an occasion which may never have eventuated 53I am unable to find that the suggestion box was put up before the election Contrary to the General Counsel (br, p 30), the box was not "undeniably requested at the meeting" at which Zimmerman was present Zimmerman was the only one to testify that it had been mentioned at the meeting, and even he testified not that it had been requested but that Camp- bell had initiated the proposal to put it up in response to a complaint that the employees' complaints generally were not reaching him Nor, contrary to the General Counsel, did Younger (who could not recall its mention at the meeting) corroborate Zimmerman's "certainty" that the box was put up after the meeting On the other hand, Cravens testified that he made the box and put it up in March, well before the meeting, and, as stated above, described in some detail how he happened to remember the time I credit Cravens as to this 54 Nor had the conditions been corrected despite the "importance" at- tached to their correction by the insurance company in March 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to suggest that it had.55 In fact Tolly's testimony that there was a discussion at the meeting concerning what the dimen- sions should be suggests quite the opposite, and Seibert testified flatly that such construction had not yet started. The only contrary testimony is that of Shaffer. I am unable to accept his account, however. In the first place it is plainly in conflict with Seibert's direct testimony and with the infer- ences to be drawn from the other testimony mentioned, including Campbell's. In the second place, Shaffer referred to a March inspection purportedly precipitating commence- ment of the work around the latter part of March. But the only record evidence of a state inspection was that of the January one,56 and Heimburger's detailed summary of the results of the March inspection by the insurance company makes no reference whatever to the handrail. Finally, Shaffer's testimony was that only a small portion of the work remained to be done as of the time of the meeting where the matter was raised, so that even if it were assumed that work had started on the rail, the evidence noted above would militate most strongly against a contention that it had almost been completed. Even accepting Shaffer's testimony as to the quantum of work done would still leave open the question of motive for its completion prior to the election, for crediting him as to what he had physically accomplished would not require acceptance of the inference he drew as to Respondent's reason for ordering the job to be finished quickly, to wit, "they finally got tired of calling me back and forth." Since calling him back and forth had been the practice since March, a more likely explanation for the change would appear to have been the single new development in May, i.e., the employees' request. Heimburger's testimony shows the Company to have been remarkably slow in correcting the poor conditions noted by the inspectors including even some marked "urgent." McKenzie asked Shaffer how he thought it would turn out and what he liked about the Union;59 and called Wehrle to his office to interrogate him about his union views and offer him a raise to vote against the Union. 0 I find no violation in Campbell's calling in Skowronski, Sowers and Mortland on the morning of the election and threatening to "raise hell" if they did not cease their cam- paigning on company time in the body shop. In my opinion, not even a history of tolerance of movement and conversa- tion among its employees 61 precludes an employer from insisting that worktime is for work so long as such insistence is applied without discrimination. I do not find discrimina- tory the failure to extend an equal warning to those body shop employees who may have responded to the remarks of the three men here involved and who did no visiting them- selves.62 Respondent, however, did continue to violate the Act even after the election by McKenzie reading, in Campbell's presence a couple of weeks before the instant at a meeting of the employees convoked by him, a statement prepared by Campbell that appeals herein could delay a final decision for perhaps a year during which time the employees could get no raise or other benefits, a reiteration of earlier misre- presentations. And McKenzie repeated the message to sev- eral employees the following day. 63 Finally, while the instant hearing was in progress, Mc- Kenzie stated to several employees that it might have been better to follow the example of another company which fired all its employees when it heard rumors of a union in the shop. McKenzie did not deny this although called as a rebuttal witness immediately after this testimony was ad- duced. Instead Respondent's brief argues, with no record support, that McKenzie's statement was made "jokingly." 2. 8(a)(3) (4) Other conduct As recited above, Respondent paralleled the speeches with a continuation of its general campaign of unlawful interrogation and threats. Thus, McKenzie's inquiries of Zimmerman and Meyer as to what they thought about the Union; his as well as Campbell's confirmation to Younger of the rumor that Mrs. Kuhle had said she would close the place down if the Union came in; 57 and McKenzie's unde- nied warning to Mortland that if the Union won the shop would go on a 40-hour week.58 Two days before the election 55 I do not read Cravens' testimony that Campbell said he had discussed the matter with McKenzie and that McKenzie was already working on it to mean that construction had actually started 56 Both the dirty conditions and the absence of the railing were noted at least as far back as then. 57 Younger testified that McKenzie said nothing else on the subject, and that Campbell added on the occasion of his reference to the matter that he did not know whether she actually would do so But even McKenzie's testi- mony that he had added that he "didn't know whether she could do it or not" did not abate the fear that she would try it, and Campbell's testimony, that what he had said was that he had heard the rumor but added "I don't hardly believe it myself," was far short of dispelling it 58 I do not regard Parts Manager Stickle's related statement to Tolly as violative, however, because unlike McKenzie' s statement of what would hap- pen, which , because of the entire context I cannot find a mere prediction, Stickle stated what in his view the Company would rather do (and without ruling out bargaining over it) in order to avoid premium pay which the parts In my opinion the General Counsel has failed to sustain men were not receiving anyway 59 See Sinclair & Rush, Inc, 185 NLRB 25 60 In addition to the general reasons stated above for discrediting Mc- Kenzie's account of this incident (that he merely reminded Wehrle that he owed McKenzie a favor and urged him to vote against the Union), I am unable to believe that McKenzie went this far only to accept without further ado Wehrle's curt denial that he owed a favor Nor would a contrary credibil- ity determination lessen the seriousness of the violation Granting a benefit with a view to inducing favorable action would seem no worse than relying on the benefit after its grant for the same purpose 61 i do not in any event credit any testimony that Respondent knowingly tolerated "goofing off" on the part of employees paid by the hour 62 Although it is not crucial, General Counsel's brief errs in stating that none of the body shop employees complained about the visit, Hapner, who is a unit member despite his position as body shop foreman, complained to McKenzie about the delay in starting work because of the visit 63 1 have not overlooked the fact that McKenzie's speech as reflected in Resp Exh 7 makes no mention of any benefit but wages and limits the announcement that there would be no improvement to the duration of the hearing, adding that Respondent would consult with counsel " at that time" to determine if it could give increases However, in the face of the positive testimony of Mortland and Sowers that McKenzie said all improvements would have to await the outcome of the appeals, in view of the Company's position throughout that it could grant no benefits until "this thing was all settled," since the very reference to appeals had little significance save in terms of the effect on benefits, and in view of the incredible position of Campbell noted above in respect to this particular speech, I have concluded that McKenzie's remarks on this occasion were not confined to the language of the exhibit H. A. KUHLE COMPANY the burden of proving that Massey's departure from the Company's employ constituted a constructive discharge. I believe Respondent has presented reasonable and valid ex- planations for assigning additional duties which Massey claims to have found unduly burdensome, and I note that Massey's differences with McKenzie commenced before his union activity. Nor do I credit Massey's testimony that he quit because his working conditions had become intolera- ble. I find on the contrary that strong as his affection was for his job with Respondent it was insufficient to outweigh the 75-percent wage increase offered by Norfolk where he had applied for a job before coming to Respondent to ac- quire experience which Norfolk had said he lacked, and where he had reapplied before any union activity had start- ed, having applied to another company in the interim. I do not believe the case even comes close to establishing that Massey was "force[d] . . . to quit" (Action Wholesale, Inc., d/b/aA. L. French Co., 145 NLRB 627, 628). Cf. Southwest- ern Co., 111 NLRB 805, 824. 3. 8(a)(5) a. Majority status The recital, supra, of the circumstances surrounding each employee's card-signing necessarily leads to a finding that the Union represented a majority in the stipulated bargain- ing unit at all relevant times. Involved here are single-pur- pose cards which could be ignored only if the signers were "expressly told that their act of signing represent[ed] some- thing else." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 607 (1969). And that "something else" must exclude the purpose inferable from the signing itself, i.e., the purpose stated on the face of the card. "...employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature." Id. at 606. It follows, as the Court went on in Gissel (at 607-608), quoting approving- ly from the Board's reaffirmation of its Cumberland Shoe doctrine64 in Levi Strauss & Co., 172 NLRB 732, 733: Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiat- ing unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representa- tion that they will use such cards only for an election and subsequently seek to use them for a different pur- pose.... By no stretch of the imagination 65 can "the totality of cir- 64 Cumberland Shoe Corp, 144 NLRB 1268 65 Not even by stretching the facts, as in Respondent's brief I Union President Clapper did not admit telling any employees "that they would have to go through an election before they would finally become the bargaining representative of the employees " but said that this was the likely prospect only because he did not expect Respondent to grant the request for recogni- tion that he intended to make if he had enough cards 2 That "almost all of the employees . . sign[ed] cards which they did not read and did not 107 cumstances surrounding the card solicitationts]" here "add up to an assurance to the card signer[s] that [their] card[s would] be used for no purpose other than to help get an election" (Levi Strauss, supra, at fn . 7), or to protect their jobs, or for any other purpose negating the cards' face func- tion of designating the Union as bargaining representative. Respondent's characterization of Cumberland Shoe as "infamous" indicates the real nature of its defense which at this point in history amounts to nothing less than an attack on Gissel. Cf. J. P. Stevens & Company, Inc., Gulistan Divi- sion v. N. L. R. B., 441 F.2d 514, 524 (C.A. 5, 1971). b. Bargaining order Respondent's refusal to recognize the Union and its insis- tence upon an election despite the Union's majority status, though valid at the outset, lost its protected character and violated Section 8(a)(5) with Respondent's "engage[ment] in unfair labor practices disruptive of the Board's election ma- chinery." N.L.R B. v. Gissel Packing Co., 395 U.S. 575, 599- 600 (1969). Those unfair labor practices, moreover, were so "exten- sive . . . in terms of their past effect on election conditions and the likelihood of their recurrence in the future . . . that the possibility of erasing the effects of past practices and of ensuring . . . a fair rerun [election] by the use of traditional remedies is slight and that employee sentiment . . . would, on balance, be better protected by a bargaining order." Id. at 614-615.66 I make this finding for the reasons below and despite the fact that two of the unfair labor practices found above are incapable of accomplishment or repetition in the future, to wit, threats by Mrs. Kuhle and Campbell's threat not to buy the business. The employer conduct here involved included "the prompt remedy [or the promise thereof] of [many of] the grievances which prompted the employees' union interest in the first place" (International Harvester Co., 179 NLRB 753- 754; see also Texaco, Inc v. N.L.R.B., 436 F.2d 520, 525 (C.A. 7, 1971) ); the grant of a general wage increase C & G Electric, Inc, 180 NLRB 427; see also General Stencils, Inc., 195 NLRB 1109 (dissenting opinion of Chairman Mill- er, seemingly approved in denying enforcement on other grounds, 472 F.2d 170 (C.A. 2, 1972) ); top level threats to all employees at group meetings concerning the futility of bargaining and other misrepresentations of the law from the same source threatening various specific kinds of economic harm (id. at 17-20); and other threats and coercive interro- gation which, though from a lesser company source, were never disavowed by the Company (N L.R.B. v. Kaiser Agri- cultural Chemicals, 473 F.2d 374 (C.A. 5, 1973) ). While not quite as small as that in N.L.R.B. v. Kostel understand" (br p 48) misstates the employees' own testimony which shows, inter ada, that of the 22 card signers prior to the bargaining request 16 read the cards in entirety and at least 3 others read the words, "Application for Membership," at the top Any testimony as to what they understood "in- volv[es] an endless and unreliable inquiry " N L R B v Gissel Packing Co, supra at 608 66 Respondent's brief misstates the Gissel "test" as requiring for support of a bargaining order such serious unfair labor practices as to render a fair election "impossible " At the same time, in view of my finding, it is unneces- sary to reach the contention of the General Counsel that even such test is satisfied by the facts of this case 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation, 440 F.2d 374(C.A. 7, 1971), the bargaining unit here was a comparatively small one, consisting of only 26 employees, so that the effects of the unfair labor practices may well be expected to pervade the unit. That they did in fact is evidenced by the Union's loss of the election after having signed up approximately 85 percent of the unit mem- bers,6 "unsophisticated in the rights of labor." N.L.R.B. v. Copps Corp., 458 F.2d 1227, 1230 (C.A. 7, 1972). The coer- cive flavor of deliberate employer conduct as effective as this does not dissipate easily. And the likelihood of its dissi- pation is of course further minimized by the evidence that the unfair labor practices persisted beyond the election, continuing even into the period of the instant hearing. GIs- sel, supra at 612. In all these circumstances the special prob- lems attaching to a rerun election render a bargaining order peculiarly compelling. N.L.R.B. v. L. B. Foster Co., 418 F.2d 1, 5 (C.A. 9, 1969); N.L.R B. v. Kostel Corporation, supra at 353; see Gissel, supra at 611. IV THE ELECTION OBJECTIONS As noted, supra, the Union's objections to conduct affect- ing the results of the election were roughly equivalent to the unfair labor practice allegations. In view of my findings on the latter, it is clear that the election was neither fair nor free and hence should be set aside. Moreover, in view of my recommendation for a bargaining order, a new election is not warranted, and I recommend that the Union's petition in Case 38-RC-1153 be dismissed and all prior proceedings held thereunder be vacated. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act, by interrogating, threatening, and promising and granting ben- efits to its employees in connection with their union activi- ties. 4. Respondent has violated Section 8(a)(5) of the Act by refusing to bargain with the Union. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not constructively discharge Massey. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom and, in view of the nature and variety of the violations and their continuation indicating a danger of recurrence, to cease and desist from infringing upon the Section 7 rights of its employees in any other manner. More- over, in order to effectuate the policies of the Act, and more particularly for the reasons set forth in the section, supra, entitled "Bargaining Order," my recommended Order will 67 See Meehan Truck Sales, Inc, 201 NLRB No 107 require that the Company bargain collectively and in good faith with the Union in the stipulated unit upon the Union's request. Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER 68 Respondent, H. A. Kuhle Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Coercively interrogating any of its employees con- cerning their union activities, views, or sympathies. (b) Soliciting information from any of its employees con- cerning developments in any organizing campaign of the Union or any other labor organization. (c) Threatening any of its employees with loss of existing or prospective benefits in the event they choose or retain the Union or any other labor organization as their collective- bargaining representative. (d) Stating that any planned wage increase or other bene- fit would be withheld because of the pendency of a union campaign or that of any other labor organization. (e) Soliciting grievances from any of its employees with a promise, express or implied, of redress. (f) Remedying any grievance or granting a wage increase or any other benefit as an inducement to any employee to forego representation by the Union or any other labor orga- nization. (g) Conveying to any employee the impression that se- lecting the Union or any other labor organization as collec- tive-bargaining representative would be futile. (h) Misrepresenting the nature of its employees' rights under the Act. (i) Refusing to bargain collectively with Teamsters, Chauffeurs & Helpers Union, Local No. 279, as the exclu- sive representative of the employees in the following appro- priate unit: All employees employed at the Employer's Decatur, Illinois, facilities, including working foreman, mechan- ics, mechanics (warranty), mechanic's helpers, body repairmen, clean-up men, truckdrivers, and partsmen; but excluding salesmen, the receptionist, office clerical employees, guards, supervisors, and professional em- ployees as defined in the Act. In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively and in good faith with Teamsters, Chauffeurs & Helpers Union, Local No. 279, as the exclusive representative of all the employees in the above-described appropriate unit, and embody in a 68 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes H. A. KUHLE COMPANY signed agreement any understanding reached. (b) Post at its place of business in Decatur, Illinois, co- pies of the attached notice marked "Appendix." 69 Copies of said notice, on forms provided by the Officer-in-Charge of Sub-Region 38, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Officer-in-Charge in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 69 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain collectively with the Teamsters, Chauffeurs & Helpers Union, Local 279, as the exclu- sive representative of our employees in the bargaining unit we agreed was appropriate in April 1972. WE WILL NOT make any changes in any working con- ditions of our employees in the bargaining unit without giving notice to and consulting with their collective- bargaining representative. WE WILL NOT coercively question any of our employ- ees about their union activities, views, or sympathies. WE WILL NOT solicit information from any of our em- 109 ployees concerning developments in any organizing campaign of the Teamsters or any other union. WE WILL NOT threaten any of our employees with loss of existing or future benefits because they choose or keep the Teamsters or any other union as their collec- tive-bargaining representative. WE WILL NOT tell our employees that a wage raise or other benefit is barred or will be withheld because the Teamsters or any other union is seeking recognition as bargaining representative. WE WILL NOT solicit grievances from any of our em- ployees with a promise, either expressed or implied, to remedy such grievances. WE WILL NOT remedy any grievance or grant any other benefits as an inducement to any employee to forego representation by the Teamsters or any other union. WE WILL NOT give any employee the impression that selecting the Teamsters or any other labor organization as collective-bargaining representative would be use- less. WE WILL NOT misrepresent to our employees the na- ture of their rights under the National Labor Relations Act. WE WILL NOT, in any other manner, interfere with the right of our employees to engage in organizational ac- tivity or collective bargaining or to refrain from such activities. Dated By H. A. KUHLE COMPANY (Employer) (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 compliance with its provisions may be direct- ed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061, Ext. 282.