KUX Mfg. Corp.

KUX MFG. CORP. Kux Manufacturing Corporation and Continental Marketing Corporation: A Joint Employer and International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW) and Employee Representative Committee, Party of Interest. Cases 7-CA-13157 and 7-RC-13565 November 8, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 27, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, to which Respon- dent filed an answer and cross-exceptions, as well as a motion to reopen the record ' and a brief in support thereof, and the General Counsel filed a brief answering Respondent's cross-exceptions and mo- tion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Charging Party has filed exceptions to the Administrative Law Judge's failure to find the Employee Representative Committee (hereafter the Committee) to be a dominated labor organization and to order that it be disestablished. For the following reasons we find these exceptions meritori- ous. Initially, we note that the Administrative Law Judge found that the undisputed evidence establish- ed that the Committee exists solely at the discretion of Respondent and was and is a construct of Respondent and not the employees. He further concluded that "the Committee exists as an instru- mentality of the Respondent with no independent i On the basis of our discussion hereinafter, Respondent's motion to reopen the record for the taking of additional evidence is hereby denied. 2 We affirm the Administrative Law Judge's finding that the vote taken among the employees on February 25 constitutes an independent violation of Sec. 8(aXl) inasmuch as, under the circumstances present here. it was an implementation of Respondent's efforts to unlawfully induce its employees to abandon the Union. However. we find it unnecessary to, and therefore do not, rule on the Administrative Law Judge's further finding that this same action, considered alone, constitutes an illegal polling of employees, since not all instances of preference polls are unlawful and because this finding would, in any event, be merely cumulative in that the absence of such a finding will not alter the remedy ordered. 233 NLRB No. 50 existence of its own, and its functions are totally controlled and financed by management." He nevertheless failed to find that the Committee was dominated by Respondent or to order its disestab- lishment as requested by the Charging Party in its posthearing brief, citing the fact that the General Counsel did not specifically allege domination in his complaint and did not seek disestablishment as a remedy. He finds instead that the General Counsel's failure specifically to allege or request a domination finding with its usual remedy of disestablishment means that Respondent was not on notice to defend against these allegations and hence that granting the Charging Party's request would constitute a denial of due process to Respondent. We disagree. As noted, the Administrative Law Judge concluded that Respondent established and controlled the Committee based on facts, fully litigated at the hearing, showing that Respondent: created the position of employee representative; conducts the election held annually by virtue of the edict in the employee manual prepared solely by Respondent; controls the time of Committee meetings and the attendance of employee representatives at these meetings which are held in management offices; pays the representatives for time spent in meetings; conducts and controls the content of the meetings; unilaterally prepares and issues minutes of the meetings; and responds favorably only to those complaints and suggestions brought by the represen- tatives which it finds beneficial to its own best interests. In these circumstances, where a material issue of unlawful conduct related to the subject matter of the complaint has been fully litigated and the facts necessary to decide the question have been adduced without objection by Respondent, the Administrative Law Judge, contrary to his conclusion, is not precluded from deciding the issue, regardless of whether it has been specifically pleaded. Fremont Manufacturing Company, Inc., 224 NLRB 597 (1976). We note further that Respondent had actual notice of the Charging Party's claim that the Committee was dominated by virtue of the specific allegation of domination in the underlying charge. Therefore we find that Respondent dominated the Committee in violation of Section 8(aX2) of the Act. 3 In adopting the Administrative Law Judge's findings that Respondent's June 3 speech contained threats of plant closure and exceeded permissible limits of preelection propaganda, thus violating Sec. 8(a)(l) of the Act, Member Murphy notes that the statements involved herein demonstrate that this speech differs greatly from those which she found not violative of the Act in such cases as The Lundy Packing Company. 223 NLRB 139, 140 (1976); Ludwig Motor Corp., 222 NLRB 635. 637-639 (1976); and Mt. Ida Footwear Companry, a Division of Munro Company, Inc., 217 NLRB 1011 (1975). 317 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall order that it cease and desist from such conduct and that it not only withdraw recognition from the Committee, as recommended by the Administrative Law Judge, but also complete- ly disestablish it as the representative of any of Respondent's employees for the purpose of dealing with Respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Kux Manufacturing Corporation and Conti- nental Marketing Corporation: A Joint Employer, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs l(a) and (b): "(a) Dominating or interfering with the administra- tion of the Employee Representative Committee, or with the formation or administration of any other labor organization of its employees, and contributing support to the Employee Representative Committee, or to any other organization of its employees. "(b) Recognizing or in any matter dealing with the Employee Representative Committee, or any reor- ganization or successor thereof, as a representative of any of its employees for the purpose of dealing with Kux Manufacturing Corporation and Continental Marketing Corporation: A Joint Employer, concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work." 2. Substitute the following for paragraph 2(a): "(a) Withdraw all recognition from the Employee Representative Committee as a representative of any of its employees for the purpose of dealing with Kux Manufacturing Corporation and Continental Mar- keting Corporation: A Joint Employer, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work and completely disestablish the Employee Representative Committee as such representative." 3. Substitute the attached notice for that of the Administrative Law Judge. [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT directly or indirectly threaten you with plant closure or move or loss of jobs in order to discourage you from joining or assisting the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organiza- tion. WE WILL NOT question you, directly or indirect- ly, regarding your union sympathies or activities, or those of other employees. WE WILL NOT give employees wage increases or other benefits in order to induce you to refrain from supporting any union. WE WILL NOT give any support or assistance, financial or otherwise, to the Employee Represen- tative Committee, or any other labor organiza- tion, nor will we recognize or bargain with International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), or any other labor organization, unless and until it is certified as your collective- bargaining representative by the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. We have notified the members of the Employee Representative Committee that they may no longer act as your representatives on grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work, and we have completely disestablished the Employee Representative Com- mittee as such representative. Kux MANUFACTURING CORPORATION AND CONTINENTAL MARKETING CORPORATION: A JOINT EMPLOYER 318 KUX MFG. CORP. FINDINGS AND CONCLUSIONS STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This consolidated proceeding was heard before me on Decem- ber 6 and 7, 1976., in Detroit, Michigan. Charges and amended charges were filed in Case 7-CA- 13157, on July 7 and 13, respectively, by International Union, United Automobile, Aerospace & Agricultural Implement Work- ers of America, hereafter referred to as the UAW. A consolidated complaint, which was amended at the hearing, issued on August 31. Kux Manufacturing Corpo- ration and Continental Marketing Corporation: A Joint Employer, herein variously called the Respondent, the Employer, and the Company, filed a timely answer denying the commission of any unfair labor practices. The consoli- dated complaint alleges that the Respondent violated Section 8(a)(1) and (2) of the Act by coercively interrogat- ing an employee concerning her union activities and those of other employees; by seeking to create an impression of surveillance of employee union activities: by granting wage increases to employees in order to dissuade them from union activities; by threatening employees with plant closure and/or removal should they select union represen- tation; by giving unlawful aid, assistance, and support to the Employee Representative Committee, herein called the Committee; and by recognizing and bargaining with the Committee concerning terms and conditions of employ- ment at a time when the Committee did not represent a majority of the employees and a question concerning representation had been raised by petition for an election filed by the UAW in Case 7-RC-13565. The UAW filed its petition in Case 7-RC 13565 on April 7. The Regional Director for Region 7 issued a Decision and Direction of Election on May 7, and an election pursuant thereto was held on June 4. The UAW filed timely objections to conduct affecting the results of the election, and the Regional Director, on August 31, issued an order and notice of hearing consolidating certain of the objections in Case 7-RC-13565 for hearing with the complaint in Case 7-CA-13157. The Committee, although originally an intervenor in Case 7-RC-13565, withdrew from the representation case proceeding on May 5 and therefore did not appear on the ballot in the June 4 election. Similarly, the Committee made no appearance or attempt to intervene at the hearing even though certain of its representatives were called as witness and it was served with a copy of the complaint and notice of hearing. Upon the entire record, including my observation of the witnesses as they testified, and after due consideration of the posthearing briefs filed by the parties, I make the following: I All dates herein are in 1976 unless otherwise specified. 2 The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses, the exhibits. and careful consideration of the logical consistency and inherent probability of the facts found. Although I may not, in the course ol this Decision. advert to all of I. RESPONDENT'S BUSINESS The complaint alleges, the Respondent admits, and I find that the Respondent is a joint employer composed of two Michigan corporations with its principal office and place of business at Detroit, Michigan, herein called the facility, where it is, and has been at all times material, engaged in the manufacture and processing of labels, decals, and silkscreen products, and that the Respondent annually purchases and receives at its facility goods and materials valued in excess of $50,000 which are shipped directly to its facility from points located outside the State of Michigan. I further find that the Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS The complaint alleges, the Respondent admits, and I find that the UAW and the Committee are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts2 I. The Committee The Committee has been in existence for more than 5 years. The record shows neither its date of origin nor the method by which it was established. Respondent's current employee manual, dated December 1975 with an introduc- tory foreword from Company Board Chairman Richard Kux, sets forth the following with respect to employee representatives: EMPLOYEE REPRESENTATIVES In order to foster good communications and under- standing between each employee and management, representatives of various departments meet on a regular basis with an officer of the Company to discuss problems, complaints, and suggestions, as brought to them by employees. The ideas and requests are presented anonomously, discussed and considered, and replied to by the Company officer. The representatives are selected periodically by the employees through the process of nomination and election. The content of the employee manual is unilaterally prepared by the Respondent; there has never been a bilateral written collective-bargaining agreement between the Respondent and the Committee; and the functions of the record testimony or documentary evidence, it has been carefully weighed and considered and to the extent that testimony or other evidence not mentioned herein might appear to contradict the findings of fact, that evidence has not been disregarded but has been rejected as incredible, lacking in probative worth, surplusage. or irrelevant. DECISION 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Committee are unilaterally prescribed by the Respon- dent. The employee representatives are elected each January by secret ballot. There are no preliminary nominations for the position by employees. When the time comes for the annual election, the Employer prepares and delivers a ballot to each employee with his or her paycheck. The ballot contains the names of all the employees in the voter's department. The voter checks off one name of his or her choice and deposits the ballot in a ballot box placed by the timeclock. The employee receiving the most votes then becomes the department or section employee representa- tive. I infer from the evidence proffered that the Respon- dent conducts the election, including preparing the ballot box, and employee participation in the election is limited to casting a ballot. The employee representatives so elected meet as a committee or group with a management representative, usually Respondent's vice president, Joseph Garson, on a periodic basis about every 2 months. The meetings are held in Garson's office during working time, last from an hour and a half to 2 hours, and the employee representatives are paid by the Employer for the time so spent in attendance. The Respondent may refuse to permit an employee representative to leave his work station and attend a committee meeting if it determines he is needed on the job. Garson is in charge of the meetings and conducts them by asking each representative in turn what complaints or suggestions they may have. Garson and the representatives then discuss employees' complaints and suggestions relat- ing to wages, hours, and working conditions including, inter alia, the cleaning of restrooms and work areas, the presence of unpleasant fumes in working areas, the timing of holidays, vandalism, shift-starting times, overtime, scheduling of breaks, work supplies, plant safety, parking facilities, minority discrimination in hiring temporary help, faulty equipment, maintenance of first aid facilities and supplies, extension of the lunch hour, and vending machine facilities. The Respondent adopts those suggestions and remedies those complaints, or does not do so, at its discretion with no enforceable recourse by the Committee. After conclusion of each meeting, the Employer prepares minutes of what transpired therein and distributes copies to the employees. All costs of the meeting and preparation and duplication of the minutes are borne by the Company. 2. UAW activity and contemporaneous events The UAW commenced its organizational efforts at the facility in late November 1975. From that time until January, when a UAW representative started passing out UAW literature to employees as they left the plant, which continued at least through February, employee Wilma Picha was the sole in-plant organizer for the UAW. She distributed literature and solicited and received employee signatures on about 100 UAW authorization cards.3 3 I found Picha an intelligent, thoughtful, and reliable witness whom I credit. On the other hand, I observed Supervisor Patricia Zander to be a witness of vague memory whom I do not credit where her testimony conflicts with that of Picha. 4 The parties stipulated that Ulnick is, and was at all times materinal a supervisor within the meaning of Sec. 2( Il) of the Act. Patricia Zander, Picha's supervisor, who the Respondent admits has been a statutory supervisor at all times material herein, testified she learned that the UAW was organizing at the facility at the beginning of the year when an employee told her that there was UAW literature in the ladies' bathroom Zander also testified that she saw a UAW representative passing out literature, that he gave her some when she left the plant premises, that this occurred prior to February 25, and that she promptly reported this UAW literature distribution to her supervisor, plant production manager, Jim Ulnick. 4 On February 19, Zander approached Picha at the end of the day and asked her if Picha knew of anyone passing out union cards. Picha replied that if she did know she would not tell Zander or anyone, whereupon Zander said, "Well, are you passing them out?" Picha's response was, "Pat, you better have proof of that," and Zander then terminated the conversation by stating she had to leave and would see Picha the next day. Picha credibly testified that, after the February 19 conversation with Zander, she saw Supervisors Ulnick and Kuhar 5 standing behind some shelves observing her. She does not say how long they were there, or whether this happened on more than one occasion. On February 24, all of the Respondent's employees were called to a meeting in the lunchroom which was presided over by Respondent's chairman of the board, Richard Kux.6 From a composite of the credible testimony of witnesses testifying regarding this meeting, which testimo- ny I find to be complementary rather than contradictory, I find that Richard Kux told the employees assembled that he had built the business up; thought he had given the employees good benefits; and he did not understand why there was unrest in the plant; but that he understood some employees were dissatisfied because they had been given no part in drawing up the employee manual. He then suggested that maybe the employees would like to form a "people's union," which had worked in other companies, and have their incumbent employee representatives draw up a contract between the employees and the Company. He also expressed his opinion that the employees did not need outside representation and should try the "people's union" method first. Kux told the employees that they could vote on whether or not they wanted the employee representatives to negotiate a contract for them, and that the vote could be held right then and there. I conclude from this latter remark and the testimony of Wina Morrow that the ballots for such an election were already prepared. After some employees expressed a desire to think it over and to take the ballots home, Employer President Harold Friedman 7 interposed that they could not take the ballots home and if they wanted to vote at all it would have to be held the first thing the next morning. It was then agreed that the employees would consider the question and vote the next day on whether or not they wanted the employee representatives to negotiate a contract with the Company. I The parties stipulated that Norm Kuhar is, and was at all times material, a supervisor within the meaning of Sec. 2(1 1) of the Act. 6 Kux did not testify at the heanng. I Although Friedman was called by General Counsel as an adverse witness and testified on other matters, he did not testify regarding this meeting. 320 KUX MFG. CORP. The following morning, about 7 a.m., the employees were advised by their supervisors that it was time to vote. In this connection, Wina Morrow testified that Zander told employee Ruth Williams, who had stated that she did not want to vote and did not have to, that she did have to vote and Zander did not care how she voted, but go vote. Zander states Ruth Williams said she did not want to go vote, and that she (Zander) told Williams she should vote but did not have to. Williams testified that she does not remember what was said on that occasion.s The vote was conducted by secret ballot. Vice President Garson gave each employee a ballot which read as follows: The Employee Representative Committee shall bargain with the management of Kux Manufacturing Co. and Continental Marketing Corp. with regard to wages and terms and conditions of employment. E - FOR E]- AGAINST The employees marked their ballots and placed them in a ballot box prepared by the Company and placed by the timeclock. Garson conducted the election, with two employees present to check off voters names, and kept custody of the box until the ballots were counted by employee representative Drake. According to Picha, whom I credit, the count was 30 for, 62 against, and 2 void ballots. Thereafter, specifically on April 13 and August 10, the Respondent met with the Committee, as it formerly had, to discuss employee suggestions or complaints, but there is no evidence that the question of a contract between the Committee and the Employer was ever again raised other than that the Employer told the Committee at the April 13 meeting it could not pursue the matter further while the UAW petition for election was pending before the Board. The UAW filed its petition in Case 7-RC-13565 on April 7, and the Regional Director directed an election in a unit of full-time and regular part-time production and mainte- nance employees, including shipping and receiving em- ployees, plant clerical employees and truckdrivers. The election was held on June 4 with the UAW losing. Prior to the election the Employer held a series of meetings with employees in April and May explaining why the employees should not select union representation. These meetings, estimated variously at about eight total and two to three a week, were held in the lunchroom where management officials spoke in front of a potpourri of postings on the wall relating information about companies that had ceased operations because of UAW organization. None of the foregoing meetings were described in any detail except one on June 3, the day before the election. There is no allegation or evidence that the June 3 meeting was held within 24 hours of the election. 9 This meeting was conducted by the Respondent's board chairman, Kux. Although the several employee witnesses called by the I I find no significance in Picha's testimony that Zander told her, on February 25. "go vote now," or. "You can go vote now." Neither version impresses me as either coercive or otherwise unlawful. 9 See Peerless Plywood Companty. 107 NLRB 427 (1953). l0 The employees say Kux used the word "marbles," one says "chips," and one says "papers." I conclude he used the word "marbles." but the use of any of the three words would not change the import of K ux's statement. General Counsel and the Respondent to describe this meeting do so in varying degrees of detail there are no substantial differences or contradictions between them. Some refer to statements by Kux that are not mentioned by others but stand uncontradicted. A careful examination of this testimony persuades me that the following recitation sets forth the material content of Kux's remarks with substantial accuracy. Kux opened his comments by relating how he had started the Company and how hard he had worked to build it up. He continued that he had always treated the employees well; that the Respondent had an open door policy whereby employees could bring their problem to him or other management members; that he did not feel the employees needed UAW representation because it would cause problems rather than solve them; and if the UAW came in it couldn't fulfill its promises to employees and would leave them stranded and out on strike. In this latter event, said Kux, the Company would continue to get its work done by having it done by other companies, or having management do it, and the Company could assure the employees that it would get the work done. Kux concluded his remarks with the statement that he had always enjoyed coming to work, but if he had to come in everyday and be harassed by screaming union stewards he would pick up his marbles '1 and leave. According to Picha, whom I credit, Kux also said that although he would like to stay until he was 85, he just couldn't take "screaming union stewards" and would have to move. 3. The wage increases of May II The employee manual states, "Your first ninety days in the company are on a probationary basis. After this time your performance is reviewed, and if we want to continue your services, you become a regular employee," but makes no reference to wage increases other than cost-of-living adjustments three times a year, in March, July, and November, based on the Consumers Price Index published by the U.S. Department of Labor. According to Employer President Friedman, about 60 to 70 percent of the employees hired by the Company get raises on completing 90 days employment, and of the remaining employees about half get raises before 90 days and the rest get raises sometime thereafter. Of the eight permanent employees hired in 1974 and 1975 by the Company, each received his or her first raise after different lengths of employment (78, 83, 90, 100, 118, 137, 225, and 237 days). The payroll cards of the two who received raises at 83 days and 118 days, respectively, bear the notation "90 days raise." I Friedman testified that the Respondent hired 14 or 15 employees on March 17, 1976, of whom 12 remained on the payroll on May 11, and that 10 of the remaining 12 were given wage increases on May 11.12 None of the 10 receiving wage increases were given prior notification and first received notice of the raise when it showed up on their I" Although the General Counsel placed these two payroll cards in evidence, there was no testimony or documentary evidence adduced as to what, if any. notation was on the other six. 12 According to Fnedman. two were denied raises due to their poor attendance records, and Kuhar made this decision. 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paycheck with a notice stamped thereon reading "Note your pay increase." Friedman avers that the Employer normally so stamps checks reflecting an increase. No reason for granting these 10 wage raises was given by Friedman, the sole witness on the subject, other than that he believes the decision on the raises was made by Plant Manager Kuhar. B. Discussion and Conclusions I am persuaded from the testimony of Picha and Zander, and the comments by Kux at the February 24 meeting to the effect that employees did not need representation by an outside union, that the Respondent was aware of the UAW organizational campaign at the facility for several weeks prior to the February 24 meeting and set out on a deliberate course of defeating that campaign by unlawful means. Prior to this meeting, on February 19, Zander had interrogated Picha about the union activities of other employees, and then interrogated Picha regarding her personal union activities. I find both of these interrogations by Zander to be violative of Section 8(a)(1) of the Act. I do not however conclude, as General Counsel urges, that Zander's questioning of Picha can be viewed as a conveyance to Picha of an impression of surveillance of her union activities, nor do I find that the mere fact Picha saw Supervisors Ulnick and Kuhar looking at her through some shelves on, so far as the record shows, one occasion gives rise to any reasonable inference or conclusion that they were engaging in unlawful surveillance on that occasion. Futhermore, the purported surveillance by Kuhar and Ulnick was neither alleged in the complaint nor fully litigated at the hearing. I will therefore recommend dismissal of the complaint allegation that Zander "sought to create the impression" that the Respondent was engaging in surveillance of union activities, and I reject General Counsel's contention in his brief of surveillance by Ulnick and Kuhar. It is clear from the substantially undisputed evidence that the Committee, although cognizable under the Act as a labor organization,' 3 exists solely at the discretion of the Respondent and was, and is, a construct of the Respon- dent, not the employees. The Respondent created the position of "employee representative"; conducts the election held annually by virtue of the Respondent's edict set forth in the employee manual prepared solely by the Respondent; controls the time of committee meetings and the attendance of employee representatives at these meetings which are held in management offices; pays the representatives for time spent in meetings; conducts and controls the content of the meetings; unilaterally prepares and issues minutes of the meetings; and responds favorably only to those complaints and suggestions brought by the representatives which it finds beneficial to its own best interests. From the foregoing, and the record as a whole, I conclude and find that the Committee exists as an "3 See N.L.R.B. v. Cabot Carbon (Company and Cabot Shops. Inc., 360 U.S. 203 (1959). 14 The General Counsel did not allege domination of the Committee in his complaint nor does he seek disestablishment as a remedy. The Respondent was not put on notice that any such allegation or remedy was instrumentality of the Respondent with no independent existence of its own, and its functions are totally controlled and financed by management. "The fact that all benefits sought by the Committee depended solely upon Respon- dent's magnanimity demonstrates the servile and ineffec- tive character of the labor organization as a bargaining mechanism." Hydraulic Accessories Company, 165 NLRB 864, 868-869 (1967). That this control, assistance, and support of the Commit- tee has been going on for years does not alter the fact that it continued without cessation until at least the date of the hearing herein, and that the Respondent conducted meetings with the Committee, in the same manner and on the same subjects as it had from its inception, on April 13 and August 10, well within the period encompassed by the charges filed herein. Furthermore, I consider the Respon- dent's efforts on February 24 and 25, with respect to the suggestion and conduct of an election to secure authority from the employees for the Committee to bargain a written collective-bargaining agreement, to be an effort not only to induce employees to withhold their support from the UAW, which in my view was the Respondent's primary motivation for this election, but also a clear attempt to enhance the prestige of the Committee in the eyes of the employees and assist it in securing employee support. I conclude that during the period encompassed by the charges until the date of the hearing, the Respondent assisted and supported the Committee in violation of Section 8(a)(2) and (1) of the Act.'4 In view of this finding, it is deemed unnecessary to pass on the question of whether or not the Respondent's actions also ran afoul of the doctrine set forth in Midwest Piping and Supply Co., Inc., 63 NLRB 1060 (1945), which would afford no greater remedy. Turning to the various incidents alleged as independent violations of Section 8(a)(1) of the Act, I find that Kux's statement to the employees on February 24 that they should try a "people's union" first and did not need outside (i.e., UAW) representation interfered with and restrained employees in violation of Section 8(a)(1) of the Act. I further find that Kux, on February 24, illegally induced employees to abandon the UAW by suggesting they have the Committee negotiate a contract for them; that the vote held on the matter on February 25 was an implementation of this illegal inducement; and that the February 25 vote was also illegal polling of employees because its inevitable result would be to reveal the number of employees favorably inclined toward "outside representation"; all individually and collectively in violation of Section 8(a)(l) of the Act. With respect to Zander's remarks to Ruth Williams on February 25, 1 am persuaded that Zander did not tell Williams that she had to vote in the Employer's election, for I observed no reason in Williams' demeanor to discredit her testimony that she did not remember what was said, and I am of the opinion that a mandatory direction contrary to her own expressed desire is not a matter likely to be forgotten. Although the matter is not entirely free contemplated by General Counsel, and it cannot fairly be said that. in these circumstances, these matters were fully litigated as the dictates of due process require. Thus, the Charging Party's request for a finding of domination and a remedy of disestablishment argued in its posthearing brief is rejected. 322 KUX MFG. CORP. from doubt, I find that Zander did not coercively pressure Williams to vote as the complaint alleges. The content of Kux's remarks to employees at the June 3 meeting must be examined in the context they occurred. The National Labor Relations Board election was to be held the next day. The Employer had already held several meetings against a backdrop of postings relating to companies that had gone out of business because of UAW presence. The meeting was the culmination of an anti- UAW campaign and followed previous unlawful efforts, detailed above, to deter employees from supporting the UAW. After expressing the Respondent's view that the employees did not need UAW representation, which in itself is a permissible comment, Kux went on to state that this was true because the UAW would cause problems rather than solve them and if the UAW came in it couldn't fulfill its promises to employees and would leave them stranded and out on strike, in which case the Respondent would continue to get its work done by shipping it out or management production. There is no evidence in the record that the UAW had made any promises to employ- ees, much less extravagant ones that it could not deliver on, or that any strike action had even been considered by the UAW or the employees, nor that the UAW would cause, rather than solve, problems. In my opinion, these gratui- tous assumptions and comments by Kux were designed to impress upon the employees the futility of union represen- tation and the inevitability of a strike with accompanying loss of work for those who engaged therein. This is something more than mere election propaganda, especially when uttered by the Respondent's chairman of the board whose very name is synonymous with that of the Company, and raises to the stature of a threat that the selection of the UAW would motivate the Respondent to so deal with it that it would be forced to strike and thereby cause employees to lose their jobs. I can perceive of few things more certainly calculated to dissuade employees from freely exercising their Section 7 rights than the fear of loss of jobs, and I am persuaded that Kux's remarks in this regard were designed to stimulate and give credence to such fear. Accordingly, I find that Kux by these remarks violated Section 8(a)(1) of the Act. I further find that Kux's statements to the employees on June 3 that if he had to come in everyday and be confronted by "screaming union stewards" he would pick up his marbles and leave, and that, although he would like to stay until age 85, he couldn't take "screaming union stewards" and would have to move, were violative of Section 8(a)(1) of the Act. Kux, and no one else, raised the spectre of "screaming union stewards" and such statements emanating from Respondent's chairman of the board, and its namesake, clearly stating his intention to withdraw his financial interest from the Respondent and leave its management if compelled to deal with union representa- tives of the employees, "were calculated to engender fear among the employees that if they voted for the Union, their employment future would be adversely affected by [Kux] withdrawing from the management and ownership of the lb Walton Manufacturnng Company, 124 NLRB 1331 (1959). 16 Performance Measuremenis Co. Inc.. 148 NLRB 1657, 1658(1964). 17 N.L.R.B. v. Exchange Parts Comnpan, 375 U.S. 405 (1964). Respondent," Audubon Cabinet Company, Inc. and Period Tables, Inc., 117 NLRB 861, 864 (1957), and the employees could reasonably understand Kux's adamant refusal to stay and contend with union stewards as the equivalent of a threat to close or move the plant rather than deal with the UAW.15 The wage increases given to 10 employees on May II were granted after the UAW's petition for election was filed and before the election. The Respondent's payroll records indicate two significant factors: (1) there is no set time period within the Respondent grants wages to new employees; and (2) although the 10 employees in question received raises within 55 days of their permanent employ- ment, no other employee hired in 1974, 1975, or 1976 had received a wage increase in less than 78 days of employ- ment. The raises granted on May 11 came but 4 days after the Regional Director issued his Decision and Direction of Election, and the Respondent offered no explanation for the grant. The Board has long held that when employee benefits are granted during the immediate preelection period they will be regarded as calculated to influence the employees in the election, and the burden of showing that the grant was due to factors other than the election falls on the Employer.' 6 The Respondent has not met that burden. I find and conclude that the May 11 raises were granted in order to induce employees to refrain from supporting or voting for the UAW in the upcoming election, and that this grant was therefore violative of Section 8(a)(X I) of the Act. 7 IV. THE OBJECTIONS TO ELECTION The specific objections to the election set for hearing in Case 7-RC-13565 read as follows: 1. The company representatives threatened to close the plant and move out if the Union won the election. * * * 3. The company made policy changes in regards to employee benefits between the filing of the petition and the election. The Board has consistently held that consideration of objectionable conduct uncovered by the Regional Director in his investigation may not be properly ignored, even though not specifically alleged in the formal objections. Therefore, inasmuch as I have found that the Respon- dent engaged in serious unfair labor practices between the date of the filing of the petition in Case 7-RC-13565 and the subsequent election held on May 7, including violations of Section 8(a)(1) and (2) of the Act, I find that these unfair labor practices interfered with the employees' free and uncoerced exercise of their right to vote as they chose in the election.19 I further find that the gravity of the unfair labor practices prior to the election may be considered insofar as 1' Thomas Products Co., Division of Thomas Industries. Inc.. 169 NLRB 706 (1968). 19 Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786(19621. 323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they lend "meaning and dimension to related post-petition conduct," 20 and intensified the impact of the Respondent's unlawful acts within the objectionable period. Accordingly, I will recommend that the objections to the election be sustained and the election set aside, and that a new election be held at a time found appropriate by the Regional Director for Region 7. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II1, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the following findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and the Employee Representative Committee are labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with the administration of the afore- said Committee and by contributing financial or other support to it, the Respondent has violated and is violating Section 8(a)(2) and (1) of the Act. 4. By its coercive interrogation of employees regarding their union activities and those of other employees, implied threats to move or close down made to its employees, coercing and inducing its employees to designate the Committee as their agent for purposes of negotiating a collective-bargaining agreement, threats of an inevitable strike and loss of jobs should its employees select the UAW, polling its employees regarding their preference of agents for purposes of collective bargaining, and granting wage increases or other benefits in order to induce its employees to refrain from supporting the UAW, the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby violated and is violating Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices have affected and are affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not committed any other unfair labor practices alleged in the complaint. 20 M & W Marine Ways. Inc.. 165 NLRB 191 (1967): Stevenson Equipment Company. 174 NLRB 865, 866. fn. 1 (1969): Warren W. Parke, d/b/a Parke Coal Company, 219 NLRB 546 (1975). 21 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, THE REMEDY Having found that the Respondent has unlawfully interfered with the administration of the Committee and has contributed financial and other support to it, I will recommend that the Respondent be required to cease and desist from giving financial or other support to the Committee, or any successor thereto, and cease and desist from recognizing or bargaining with the Committee as the exclusive collective-bargaining representative of Respon- dent's employees unless and until it is certified as such by the National Labor Relations Board. Having found that the Respondent engaged in other unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist from such conduct, or any other conduct which infringes upon employees' Section 7 rights, and that it take certain affirmative action to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 21 The Respondent, Kux Manufacturing Corporation and Continental Marketing Corporation: A Joint Employer, Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the administration of, or contributing financial or other support to, the Employee Representative Committee or any successor thereto, or any other labor organization. (b) Recognizing or bargaining with the Committee or any successor thereto as the exclusive collective-bargaining representative of Respondent's employees unless and until it is certified as such by the National Labor Relations Board. (c) Directly or indirectly threatening its employees with plant closure or move, or with causing a strike and/or loss of jobs should its employees select the UAW as their bargaining representative. (d) Coercively interrogating its employees regarding their union activities or those of others. (e) Directly or indirectly polling its employees regarding their preference of collective-bargaining agents. (f) Granting wage increases or other benefits in order to induce its employees to refrain from supporting the UAW, or any other labor organization. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find necessary to effectuate the purposes of the Act: 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. 324 KUX MFG. CORP. (a) Withdraw all recognition from the Committee as the collective-bargaining representative of its employees with respect to wages, hours, rates of pay, grievances, and other terms and conditions of employment. (b) Post at its place of business in Detroit, Michigan, copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to 22 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 ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. IT IS FURTHER ORDERED that Case 7-RC-13565 be, and it hereby is, transferred to and continued before the Board in Washington, D.C., and that the provisions of Section 102.46 and 102.69 of the Board's Rules and Regulations, Series 8, as amended, shall govern the filing of exceptions in said case. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 325