Lasco Industries, Inc.

LASCO INDUSTRIES, INC. 527 Lasco Industries, Inc. and Textile Workers Union of America, AFL-CIO-CLC and Alan Godsey. Cases 9--CA-8233, 9-RC-103 10, and 9-CA-8268 April 28, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS KENNEDY AND PENELLO On August 19, 1974, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief.` 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 brief and has decided to affirm the -rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt his recommemded- Order, with the following modifications. 1. We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by,engaging in- the following conduct during the period immediately preceding the election: (1) promis- ing one employee a favorable recommendation for a job he was seeking with another company in exchange for his promise to remain in Respondent's employ until after the election; (2) removing a supervisor from his position in response to employee complaints and noti- fying them of such action; and (3) - soliciting and promptly remedying the grievances, concerning Re- spondent's failure to grant merit increases and/or job classification changes involving certain employees, which were expressed during two meetings held by Respondent. The Administrative Law Judge further found that Respondent violated Section 8(a)(1)) of the Act by granting merit increases and/or job classification changes to employees Earl Bailey, Joel Chatman, Ger- ald Combs, Robert Klaiss, Richard Lawson, David Pemberton, Ted Ryder, and Thomas Thomas. Re- spondent excepts to the finding of these violations on the grounds that no issue with respect to any of these employees was raised or litigated at the hearing and 1 The Respondent's request for oral argument is hereby denied as the record and brief adequately present the issues and the positions of the parties. 2 In the absence of exceptions thereto, we adopt pro forma the Adminis- trative Law Judge's conclusion that the Respondent did not violate the Act by suspending Alan Godsey that, therefore, it was denied the opportunity to present any defenses to these charges it may have-had. We find merit in this exception. As noted by the Administrative Law Judge, the alle- gations of the complaint concerning wage increases and job classification changes, as they were developed at the hearing, were predicated solely on Respondent's ac- tions with respect to certain other employees who re- ceived such benefits as a result of complaints concern- ing them specifically made to Respondent's officials during two meetings at which the latter clearly implied that they would remedy such grievances. In his brief submitted to the Administrative Law Judge after the close of the hearing, however, the General Counsel, relying on payroll records received into evidence at the hearing, contended that Respondent additionally vi- olated the Act by granting such benefits to the above- named employees, among others. Based upon his own examination of these documents, the Administrative Law Judge found that each of the above-named em- ployees had been granted such benefits at times other than in accordance with Respondent's general policy of granting merit increases at 90-day intervals. Although he found no evidence that any of these employees had complained to Respondent's officials themselves, or had been referred to specifically by others during either of the two meetings, the Administrative Law Judge concluded that, in the absence of any explanation by Respondent for departing from this policy,' the infer- ence was warranted that Respondent's motivation in granting such benefits to them was unlawful. The record discloses that no evidence was adduced at the hearing by the General Counsel concerning the particular circumstances surrounding the granting of such benefits to these specific employees. It is clear, therefore, that the Administrative Law Judge's conclu- sion that Respondent violated the Act with respect to them was based solely upon a set of unlitigated facts which, as he himself found, were separate and distinct from those upon which the General Counsel premised the allegations of the complaint.' In these circum- 3 Although we do not specifically rely thereon, the record establishes that Respondent had not strictly adhered to such a policy, but rather frequently had granted merit increases and job classification changes to employees at other than 90-day intervals in the past 4 The Administrative Law Judge concluded, for similar reasons, that Respondent also violated the Act by granting a merit increase to employee Steve Shuster Respondent has also expected to this finding. The record shows that, on examination by Respondent's counsel, the Respondent's assistant plant manager, Donald Olberding, testified that dur- ing the period preceding the election he was approached by Shuster who claimed that he was entitled to a merit increase and that, thereafter, he in fact received such an increase. The General Counsel, however, did not attempt to establish, and the record does not show, that Shuster was present at either of the meetings held by Respondent, or that he was specifically referred to in the complaints expressed by other employees, or that Re- spondent otherwise granted him such an increase for unlawful purposes. We, therefore, do not adopt the Administrative Law Judge's findings of such a violation 217 NLRB No. 72 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, we conclude that the finding of these addi- tional violations is unwarranted5 and, accordingly, we do not adopt the Administrative Law Judge's Decision in this regard. 2. The Administrative Law Judge concluded that the violation of Section 8(a)(1) by Respondent's soliciting and promptly remedying employee grievances, stand- ing alone, was sufficiently serious to preclude the hold- ing of a fair rerun election and, therefore, warranted the issuance of a bargaining order based on the Union's showing of majority status. We do not agree with this conclusion.' The record establishes, and in view of our discussion above we find, that Respondent unlawfully 'granted merit increases and/or job classification changes to 10 of 70 employees in the unit. We agree with the Ad- ministrative Law Judge's findings that such miscon- duct requires the setting aside of the election . However, we conclude, contrary to the Administrative Law Judge, that all the unfair labor practices committed herein, even when considered in their totality,' are not of such magnitude as to warrant the issuance of a bar- gaining order under the guidelines set forth by the Supreme Court in Gissel Packing Co.' Accordingly, we shall modify the Administrative Law Judge's recommended Order and direct a second election. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Lasco Industries, Inc., Florence, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 2(a) and reletter the subsequent paragraphs accordingly. 2. Substitute the attached notice for the notice of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on November 8, 1973, in Case 9-RC-10320 be, and it hereby is, set aside. [Direction of Second Election and Excelsior footnote omitted from publication.] 5 Cf. Poray, Inc, 143 NLRB 617, 618 (1963). 6 In view of our decision herein, we find it unnecessary to pass upon the issues raised by Respondent concerning the validity of certain authorization cards procured by the Union and the showing of the Union's majority status which was based in part thereon 7 See, e g, Local Union No 707, Highway and Local Motor Freight Drivers, Dockmen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica (Claremont Polychemi- cal Corporation), 196 NLRB 613, 614 (1972). 8 NLR.B v Gissel Packing Co., Inc., '395 U.S 575 (1969). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found we violated the law and has ordered us to post this notice. WE WILL NOT Solicit complaints and grievances from you for the purpose of inducing you to with- draw your support from, or to cease giving assist- ance to, Textile Workers Union of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT grant you merit increases or clas- sification changes where our purpose in doing so is to induce you to withdraw your support from, or to cease giving assistance to, the above-named Union, WE WILL NOT correct your grievances about supervision by removing supervisors from their positions, nor notify you that we have taken such action, where such action has been taken to induce you to withdraw your assistance from , or to cease giving support to, the above-named Union. WE WILL NOT in any like or related manner inter- fere with,- restrain, or coerce employees in the ex- ercise of their right to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. You are free to become and remain members of Tex- tile Workers Union of America, AFL-CIO-CLC. LASCO INDUSTRIES, INC DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: These cases involve allegations that the above-named Respondent vi- olated Section 8(a)(1), (3), and (5) of the Act. The 8(a)(3) allegation consists of the suspension of Alan Godsey, the Charging Party in Case 9-CA-8268, and the 8(a)(5) allega- tion is predicated on Respondent's refusal to recognize the above-named Union on the basis of an asserted-card majority. The charge in Case 9-CA-8233 was filed by the Union on January 9, 1974, and the charge in Case 9-CA-8268 was filed by Godsey on January 25, 1974. The charges were con- solidated and complaint issued on March 7, 1974, and hear- LASCO INDUSTRIES, INC. ing thereon was held on April 22 through 24, 1974, in Cincin- nati, Ohio. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent , I make the following: FINDINGS OF FACT I THE FACTUAL SETTING Respondent is engaged in the manufacture of fiberglass panels at a plant in Florence, Kentucky, where it employed approximately 72 employees at the times relevant herein.' In early September 19731 Daniel Patterson, International representative of the Union, stopped at Respondent's plant and visited the lunchroom where he talked to employees about union representation and invited them to a nearby Holiday Inn to discuss the matter with him if they were interested. The next day, several employees met with Patter- son at the Holiday Inn to discuss an organizational attempt among Respondent's employees . Thereafter, several other meetings of employees were held at the motel at which union- ization was discussed and at which the employees executed authorization cards on behalf of the Union. On October 2, the Union sent Respondent a letter claiming to represent a majority of its employees in a production and maintenance unit and requesting that a conference be arranged to negotiate a contract. On the same day, the Union filed the petition in Case 9-RC-10310. On October 19, the parties entered into a Stipulation for Certification Upon Consent Election Agree- ment pursuant to which an election was conducted on November 8, in which 40 votes were cast against representa- tion by the Union and 28 votes in favor thereof, with 3 challenged ballots. On November 12, the Union filed timely objections to conduct affecting the results of the election. The objections were consolidated for hearing with the complaint and will be discussed hereinafter. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference, Restraint, and Coercion 1. Threats of loss of jobs The complaint alleges that on or about November 2, Re- spondent, by maintenance foreman George Disque, threat- ened employees with loss of jobs should the Union be success- ful in the forthcoming election. According to Alan Godsey, the Charging Party in Case 9-CA-8268, on or about November 22, he saw Disque in the lunchroom, asked him how he happened to be there, and Disque replied he had been out all night "talking against you," meaning the Union adherents and he said "As soon as this is all cleared up, you're going to be out on the street and the rest of you guys wearing the T-shirts, too." (This last remark was a reference to Union T-shirts being worn by some employees.) Employee Denver Hacker corroborated Godsey, ' Jurisdiction is not in issue The complaint alleges , the answer admits, and I find, that Respondent meets the Board's direct outflow standard for the assertion of jurisdiction 2 Unless otherwise indicated, all dates hereinafter are 1973. 529 but his testimony about Disque's remarks was less complete and explicit. Disque admitted he had a conversation in the lunchroom, but he denied saying employees would be fired if the Union got in. Instead, he gave a different version of the conversa- tion. Disque did not impress me, and I do not credit him. Nevertheless, I shall recommend dismissal of the allegation relating to his threat because I conclude that the evidence is insufficient to warrant a finding that Disque is a supervisor within the meaning of Section 2(11) of the Act. Disque described himself as maintenance leadman. He and four other maintenance employees maintain and build equip- ment in the plant. Disque receives the work orders from the plant or production manager, but he testified he does not assign the work to the other maintenance employees; rather, he discusses the work with them, and each employee under- takes to perform the jobs for which he is best qualified. Disque does not transfer employees from job to job. He does not recommend wage increases and there is no evidence that he reprimands or disciplines employees or has the authority to do so. Unlike other maintenance employees, he does not punch a timeclock, but he testified that the reason for this was unrelated to any supervisory functions. Although Disque did not impress me favorably as a witness, his testimony about his supervisory status was uncontradicted. While Disque receives a substantially higher rate of pay than the maintenance men he leads, that is insufficient basis, standing alone, to warrant a finding of supervisory status. In my judgment, in the ab- sence of any evidence that he possesses the supervisory crit- eria enumerated in Section 2(11) of the Act, a finding that he is a supervisor within the meaning of Section 2(11) is not warranted. 2. The preelection speech of November 7 Ervin Brandon is plant manager of the Florence, Ken- tucky, plant. On November 7, the day before the election in Case 9-RC-10310, he delivered a speech to the assembled employees. The complaint alleges that in the course of this speech Brandon expressed the futility of employees selecting the Union as their bargaining representative and told them their job security could be jeopardized if the Union were selected as their bargaining representative. In support of these allegations , General Counsel adduced testimony from employees Alan Godsey , Randy Paynter, and Dale Adams . In his brief, General Counsel repeated the alle- gations of the complaint and gave a record reference to God- sey's testimony, but he did not point out just what remarks of Brandon's supported the allegations of the complaint. In my judgment, the testimony of all his witnesses with respect to the speech, if credited, is insufficient to warrant a finding that Brandon made any remarks which were violative of Section 8(a)(1) of the Act. Like the General Counsel, I see no useful purpose in -repeating the testimony here. Apart from that consideration, if the testimony of General Counsel's wit- nesses supported the allegations of the complaint, I would be constrained to reject it, because Brandon testified that he read from a prepared speech which he delivered verbatim, and there is no testimony to contradict him. I credit him in this particular, and to the extent the employees' versions differ from the written speech, I reject their testimony . The written 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speech, in my judgment, contained no threats as alleged in the complaint, but rather contained expressions of opinion pro- tected by Section 8(c) of the Act. Accordingly, I shall recom- mend dismissal of paragraph 5(a)(ii) and (iii) of the com- plaint. 3. Promise of a good job recommendation At the hearing, General Counsel amended the complaint to allege that Respondent violated Section 8(a)(1) of the Act by offering an employee a more desirable position of employ- ment and-a higher rate of pay if he would assist Respondent in defeating the Union. This amendment was predicated on testimony of former employee Carlos Jump that about mid- October he told Brandon that he was planning to accept a job at another plant located in the Industrial Park where Re- spondent is located. Brandon asked Jump if he would stay long enough to help him because he needed all the help he -would get against the Union. (Jump was a known opponent of the Union, wearing a Vote No T-shirt.) Jump said he would if Brandon would help him get the new job. Brandon agreed, and Jump did not quit and he voted in the election. Brandon admitted talking with Jump about leaving the Company and admitted asking him to stay until after the election "so that we can have it as fair and representative as possible." Jump said he didn't mind staying if Brandon thought the other company would take him on, and Brandon told him he would give him a good recommendation. It appears to me that there is no essential difference be- tween Brandon's version of his conversation with Jump and Jump's version. Under Jump's version, the good recommen- dation was the quid pro quo for his agreement to stay until after the election; under Brandon's version, Jump's agree- ment to stay was given before anything was said about a recommendation, and the offer of a good recommendation was not a quid pro quo but an assurance based on Jump's merits as an employee. In either case, I find that Respondent violated Section 8(a)(1) of the Act. Because of Jump's understanding of a, gentleman's agree- ment among employers in the Industrial Park about the hir- ing of one another's employees, a good recommendation from Brandon was important to Jump. At the time of the conversa- tion, he had not been hired by the other employer and he could not risk incurring Brandon's displeasure by quitting before the election. At the time of the election, he still had no assurance of the new job. For all Jump knew then, he would continue to be employed by Respondent and when he voted he could not exercise a free choice because of this promise of a good recommendation. True, Jump was antiunion at the time of the conversation, but he could have changed his mind. Brandon's promise interfered with that possibility. I find that the promise-was unlawful. 4. The solicitation of grievances The complaint alleges that Respondent, by Plant Manager Brandon, Industrial Relations Manager Russell McMurphy, and Foreman Robert Hicks, solicited employee grievances in order to undermine the Union and thereby violated Section 8(a)(1) of the Act. These allegations are based on the follow- ing series of events. On October 2, Brandon assembled the employees of the -second shift in the cafeteria. -According to Alan Godsey, Brandon opened the meeting by saying that he knew the - employees had been going over to the Holiday Inn to see an organizer. Randy Paynter corroborates Godsey as to this remark and Dale Adams attributes a similar statement to Brandon in his testimony.. Godsey then asked Brandon if he knew they had petitioned for an election with cards from over 50 percent of the employees. Brandon did not reply directly to this; rather, he said that he couldn't understand why they needed a union because he had an open-door policy. Accord- ing to Paynter, Brandon's remark was that they didn't need a middle man to do their talking and he asked the employees what their grievances were. According to Adams, Brandon said he had an open-door policy and' he thought that they could settle any differences between themselves. Employee Alan Cornelius spoke out that he couldn't talk to Brandon, that he had been to the office three times before the union activity began about three merit increases due him with no success and that he had talked to two foremen about sick pay and had only received half of what he was entitled to. Both Godsey and Adams state that Brandon told Cor- nelius to be quiet and sit down. Other employees to complain were Nick Brossart, Adams, Paynter, and Bill Brown, all of whom complained about not being given the proper job clas- sification and the merit increases which went with them. Employee Georgejana Foltz complained that a foreman told her that women would never progress further than the pro- duction worker classification and into higher classifications. Brandon asked her what job she wanted and when she told him he said she could have it the next night. Godsey complained about the adequacy of maternity bene- fits and told Brandon that the employees wanted something done about Foreman Spiece with whom the employees had been having a lot of trouble. (Paynter attributes the foreman complaint to employee Oral Jones.) According to Godsey, Brandon made no reply, but the next day a notice was posted on the bulletin board notifying employees that Spiece was being relieved of his foreman position. The meeting ended with Brandon telling the employees that Industrial Relations Manager Russ McMurphy would come in and talk to them at a later date. McMurphy, who is corporate industrial relations manager with an office in California, came to the plant in mid-October and spoke to the assembled employees. According to Godsey, McMurphy began by explaining Respondent's progress and certain changes in its operations. When he had finished ex- plaining these matters, he remarked that now he had reached the union situation and he expressed the wish that he could have come to the plant at an earlier date, but explained that he had been delayed. He then asked what exactly were the employees' problems and gripes. According to employee Paynter, McMurphy said he felt they didn't need a union; they could talk with him freely about their complaints and he would try to iron them out. Paynter admitted, however, that McMurphy said he couldn't promise anything. Employee Adams confirmed that McMurphy asked the employees if they had any complaints. The employees who had earlier complained to Brandon at the October 2 meeting generally repeated the complaints that they had previously made As each complaint was voiced; McMurphy made a note of it. LASCO INDUSTRIES, INC About 1 week later, Foreman Hicks approached Paynter and asked him when he believed he should have been reclassi-' fled and for what job. Paynter told him and a week or two later he received a reclassification and a 21-cent-per-hour raise plus backpay of $75 retroactive to the date he should have been reclassified (this occurred 1 week before the elec- tion). Paynter had complained about reclassification to Fore- man Fortner in June, the second month that he was on the job for which he believed he was entitled to a reclassification. About the same time, Foreman Hicks called Adams into his office and reviewed with him the date when Adams had started on the job to which he believed he should have been reclassified. Thereafter, Adams was reclassified, given a wage increase and retroactive pay to the date he should have been reclassified. He received backpay in the amount of $57. His wage increase was 10 cents per hour. Employees Alan Cornelius and Bill Brown were similarly reclassified and given retroactive pay, but the record does not indicate whether they were similarly contacted by Hicks. The complaint alleges that in Brandon's meeting of Octo- ber 2, McMurphy's meeting in mid-October, and Hicks' in- quiries of Adams and Paynter, Respondent engaged in the solicitation of grievances in order to undermine the Union, and that it thereby violated Section 8(a)(1[) of the Act. As the foregoing indicates, Respondent not only asked employees what their grievances were, but it also corrected them. The corrective action is also alleged to constitute conduct viola- tive of the Act, and I will dispose of that issue below. At this point, I treat only of the solicitation of grievances as interfer- ence in violation of Section 8(a)(1) of the Act. The Board has long held that the solicitation of employee grievances during an organizational campaign is unlawful.' This is so even though the employer may not have promised to remedy the employees' grievances, and may even have expressly disclaimed making any promises.' The promise is implied from the circumstances of the case, includ- ing the timing of the solicitation and the announced purpose of the solicitation. Where the employer states, as did Bran- don, that he can't understand why the employees feel they need a union, that he has an open-door policy, and they don't need a middle man to do their talking, or as McMurphy stated "he felt they didn't need a union, they could talk with him freely about their complaints," a promise to remedy the complaints is rather clearly implied. Respondent contends that Brandon's and McMurphy's meetings with employees were not unlawful because they were in accord with longstanding company policy and prac- tice. It is true that an employer who has had a policy and practice of soliciting employee grievances may continue such policy and practice during an organizational campaign with- out violating the Act.' Whether his conduct during the or- ganizational campaign accords with his past policy and prac- tice, however, depends on an evaluation of all the 3 Eagle-Picher Industries, Inc., 171 NLRB 293 (1968). 4 Landis Tool Company, Division of Litton Industries, 190 NLRB 757 (1971), enfd. 460 F.2d 23 (CA 3, 1972). 5 The principle that an employer violates the Act when he solicits em- ployee grievances during an organizational campaign is not a principle of per se application; rather, it comes into play "where, as here, an employer . . has not previously had a practice of"soliciting employee grievances or complaints .. " Reliance Electric Company Madison Plant Mechanical Drivers Division, 191 NLRB 44, 46 (1971) 531 circumstances of the case. In this case, in my judgment, the evidence supports'a finding that Brandon's meeting of Octo- ber 2 and McMurphy's mid-October meeting were not based on past policy and practice but were precipitated by the or- ganizational activity of Respondent's employees and were designed to undermine such activities. According to Bran- don, the employees in the warehouse on the first shift had asked to meet with him on October 2 to discuss some com- plaints they had about insurance benefits. Brandon met with them and tried to answer their questions. According to Bran- don, at this meeting, he learned for the'first time that there was union activity among Respondent's employees and he learned it from the warehouse employees who intimated that the activity was confined to the second shift production em- ployees and that he should talk to them. It was as a result of this that Brandon asserts he called the meeting described above. I do not credit Brandon's testimony that he first learned of union activity at this first meeting. According to employee Denver Hacker, he was one of the employees to speak to Patterson the day he visited the plant. After Patterson left, Foreman Fortner asked him who that was and Hacker told him a guy from the Union. The day after Hacker met with Patterson at the Holiday Inn, he was called into the office by Brandon shortly after he arrived at the plant, and Brandon asked him who was involved with the Union. Hacker testified that he had previously given Brandon some information dur- ing a prior union organizational campaign and he told Bran- don that he didn't want to get involved this time. Brandon told him all right, there were other ways to find out. This testimony was undenied and I credit it and find that Brandon knew of the employees' union activity before October 2.6 Actually, whether Brandon learned of the union activity at the morning meeting on October 2, or earlier is not too criti- cal. It is abundantly clear that the reason for the meeting with the second shift employees was the fact of the union activity. Thus, at the very outset, according to Godsey's testimony, corroborated by Paynter and Adams, which I credit, the meeting opened with a reference to employee meetings at the Holiday Inn. This observation (which conveyed an impres- sion of surveillance of the employees ' union activities, .a possi- ble violation of the Act not alleged in the complaint) was followed by the remark that Brandon could not understand why the employees needed a union and that he had an open- door policy. Such remarks indicate clearly that the meeting was not planned, not based on company policy and practice.' 6 After close of hearing, Respondent filed a motion to reopen hearing to present evidence relative to amendments to the complaint made at the hearing and to new matters raised at the hearing. One of these matters was Hacker's testimony The motion was denied Insofar as Hacker's testimony is concerned, General Counsel did not amend his complaint to allege that either Fortner's or Brandon's interrogation was unlawful, rather, the tes- timony was proffered and received to support the allegation that the solicita- tion of employee grievances was for the purpose of undermining the Union. Brandon testified on behalf of Respondent and no valid excuse has been given for the failure to examine him on the subject matter of Hacker's testimony Nor has Respondent given any reason for not calling Fortner. 7 Brandon's description of the meeting was rather general and did not substantially differ from that of the employees except that he testified that any reference to meetings of the employees at the Holiday Inn was made after what he described as the positive portion of the presentation. However, he never did describe what that consisted of, only that after the presentation (Continued) 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the record indicates clearly that Respondent has no practice of soliciting employee grievances. True, the re= cord indicates that employee meetings have been held in the past, but they were not held with any degree of regularity. The last meeting of any kind was in December 1972, and it dealt with plant and production changes and problems associ- ated with the physical facilities. Brandon could not remember any discussion of individual employee problems. The only other meetings with employees are those con- ducted by Russ McMurphy, who conducted two in 1971, one in 1972, and the_meetings in mid-October which are here alleged to be unlawful. According to McMurphy's own tes- timony, it is clear that these meetings are to advise employees of developments in the operations of the Company generally and, in my judgment, they can be said to be meetings to solicit employee grievances only in the sense that after his presenta- tion he asks for any questions. As I have pointed out, Bran- don's meeting did not fit that mold. The meeting was not thrown open to questions about any matters presented by Brandon; rather, Brandon asked the question and that ques- tion was why do you want a union. I find that Brandon solicited employee grievances, related his solicitation to the Union's organizational campaign and clearly implied that he would correct employee grievances so that a union would not be necessary. Respondent thereby violated Section 8(a)(1) of the Act. The complaint also alleges that McMurphy unlawfully sol- icited employee grievances in his meeting with employees. The record supports the allegation. Apart from what I have said above about McMurphy's meetings of the past, I note that McMurphy, like Brandon, was the one to ask questions and not the employees. I note that in doing so he expressly adverted to the union situation. Finally, I note Brandon's admission that McMurphy came to the plant when he did because of a call from Brandon and Brandon's notification to him of the Union's campaign. Under these circumstances, it is clear that the purpose of the meeting was to undermine the Union and that the solicitation of grievances was unlawful. I so find. As I have described above, about 1 week after McMurphy's meeting with employees where they aired their grievances, Foreman Robert Hicks spoke to Adams and Paynter about their complaints about job reclassification and shortly there- after the job reclassifications were made and merit increases were granted. It is these inquiries of employees by Hicks which the complaint alleges as the solicitation of grievances. It is clear, however, that Hicks' inquiries were in implementa- tion of the solicitation of grievances by Brandon or McMur- phy described above and not independent inquiries. I fail to see how such inquiries could be deemed independent solicita- tions of grievances, and I shall recommend dismissal of the allegation respecting Hicks. In any event, any finding of a violation would merely duplicate the findings above and re- quire no additional remedy. he asked if there were any questions as is done in all such meetings I do not credit his version 5. The correction of employee grievances a. Merit increases, retroactive pay increases- and job classification changes As described above, after Respondent solicited employees about their grievances and after it learned that certain em- ployees were aggrieved about their job classifications and rates of pay, Respondent made job classification changes for several employees and granted them wage increases. Thus, Randy Paynter was reclassified from production worker to utilityman and given a 21-cent-per-hour wage increase effec- tive October 8, plus backpay of $75 to the date he should have been reclassified. Dale Adams was similarly reclassified and received a 10-cent-per-hour wage increase, plus $57 in back- pay. (His personnel record (G.C. Exh. 12-A) shows this ac- tion as effective October 1, but it is clear from Adams uncon- tradicted testimony that the action was taken sometime after October 17.) Bill Brown, another employee who complained, was also reclassified and given a 10-cent-per-hour wage in- crease plus retroactive pay. He did not testify, and according to his personnel record (G.C. Exh. 12-h) such action was taken on October 1, but it is evident that the action was taken after the October 2 meeting else he'would not have com- plained to Brandon at the meeting of that date as the uncon- tradicted testimony shows. Alan Cornelius, yet another em- ployee to complain at the October 2 meeting, received two wage increases of 10 cents per hour, plus retroactive pay. One increase is shown on his personnel record as being effective October 1, the other October 15. It is clear again that both increases were made after October 2. Nicholas Brossart, yet another employee to complain on October 2, received a merit increase of 14 cents per hour effective October 15 and a reclassification and 10 cents per hour on October 22. Robert Sturgeon, who is shown as having complained to McMurphy in mid-October, received a classification change and raise effective October 1. At the hearing, it appeared that the allegations of the com- plaint respecting wage increases and job classification changes were predicated only on the wage increases and clas- sification changes given to the employees who complained either to Brandon or McMurphy. In his brief, however, Gen- eral Counsel asserts that there were a total of 25 employees who received wage increases during the preelection period. No evidence was received respecting such increases except that referred to above about employees who complained at the October 2 meeting or the mid-October meeting; neverthe- less, General Counsel contends that all such increases were unlawfully motivated. According to Respondent, none of the personnel actions was unlawful; rather, they were consistent with past practice. That practice was to grant employees merit increases at 90- day intervals, with discretion to grant them earlier. If an employee received a classification change which raised his rate of pay, this did not interrupt his 90-day interval. In cases such as Paynter's, Adams', Brown's and Cornelius', Re- spondent asserts it was "simply giving effect to its long stand- ing policies on merit increases and classification changes, which policies had not been applied to these individuals be- cause of error." LASCO INDUSTRIES, INC. I cannot subscribe wholly to the position of either party. Of the 25 employees named by General Counsel in his brief, 7 received merit increases in accordance with the 90-day interval," and there is no evidence that Respondent did other than follow its past practice in granting these increases. I therefore find no violation insofar as these increases are concerned. As to all the other personnel actions, however, it appears that they were attributable to the fact that the employees had expressed an interest in union representation, and not to the fact that Respondent was simply correcting errors. This is abundantly clear from the uncontradicted testimony that at the October 2 meeting, Alan Cornelius complained to Bran- don that he had been to the office three times before union activity began about three merit increases due him with no success; the uncontradicted testimony of Godsey that he had complained about his classification before the union activity with no success and when he was reclassified after October 2, he told Foreman Hicks it wasn't right, that "I had put in for the job many times before and now the Union is coming to town I get it", the uncontradicted testimony of Randy Paynter that he had complained about reclassification before October 2, without success, and the uncontradicted tes- timony of Dale Adams that he had complained to two fore- men before October 2, without success. These complaints were evidently meritorious, but that is not the point. The point is they were not corrected until the employees expressed interest in Union representation. 01- berding testified about the changes involving Adams, Brown, Paynter, and Cornelius and that the changes came about because Foreman Hicks brought to his attention the fact these employees were improperly classified. Foreman Hicks corroborated Olberding about approaching Olberding with complaints from Adams, Cornelius, Brown, and Paynter, who had come to him about their classifications. I do not credit Olberding and Hicks insofar as their testimony sug- gests either'that their discussions antedated October 2, or were, unrelated to the October 2 meeting, and that-such dis- cussnons represented the normal handling of employee com- plain s. As pointed out above, Adams, Paynter, and Godsey testified without contradiction of complaints before October 2, which were ignored and Cornelius complained of that very fact at the October 2 meeting. Moreover, as will be shown below, it is clear that any consultations between Hicks and Olberding about improper classifications occurred after Oc- tober 2 and were attributable to Respondent's decision to remedy the grievances uncovered on October 2 and thereafter in order to forestall unionization. Respondent's assertion that it was simply correcting errors in the application of existing policy ignores the fact that this was the first time that classification changes had been made effective retroactively and employees given substantial back- pay. Other instances of retroactive pay represented correc- tions of clerical errors or delay in processing approved changes. Respondent's assertion that it was simply correcting errors also ignores the fact that the record shows more than the changes in classification affecting Adams, Brown, Paynter, 8 Kenneth Balthrop, Richard Dressman, Leroy Heggs, George Hope, Kenneth Johnson, William Potter, and Arthur Ullmer. 533 and Cornelius, and more than the award of merit increases in accordance with company policy. Of the 26 employees listed in General Counsel's brief, 17 received classification changes and wage increases.' This was a significantly high number for 1 month compared to other months. Of these, Adams, Brossart, Brown, Cornelius, Godsey, Paynter, and Strugeon are shown to have complained about incorrect clas- sifications at the October 2 meeting or the meeting with McMurphy. Assuming, arguendo, that these 7 classification changes all represented corrections of errors, what of the remaining 10? - Three of these 10 classification changes were clearly not the result of the correction of errors. In the case of George- janna Foltz, there is uncontradicted testimony that on Oc- tober 2 she complained of what was, in effect, sex discrirmna- tion, and Assistant Plant Manager Olberding's own testimony indicates that her complaint set in motion an inves- tigation that led not only to her reclassification, but also to the reclassification of Trudy French and Mona Richardson. Olberding took notes of the employees' complaints at the October 2 meeting and testified as follows respecting his ac- tions thereafter. Q. Let me ask you, when were these classifications made? After the meeting you attended and you wrote down? A. Well, this is when I, this was on second shift. I didn't get an opportunity between that meeting and our first shift meeting of the following day, which was the 3rd. After that meeting though, you know, we had some production problems. After the second meeting there were similar-not similar, there were other complaints in there and it seemed to me at this time like there was a problem. So at the conclusion of the second meeting, which was held on the 3rd with the first shift, yes, I did look at them. And then Bobbie Hicks came in also when his shift started on second shift. And we started getting into it then. One of those with whom Olberding got into it was Mona Richardson who, according to Olberding, approached 01- berding the day after the October 2 meeting about being reclassified. After discussions with supervisors, it was decided to reclassify Richardson, Foltz, and French. This action clearly resulted from the solicitation of grievances which be- gan on October 2. These reclassifications were not corrections of errors and were motivated with a purpose of undermining the Union. As to other classification changes and merit increases, there is no direct evidence of unlawful purpose. However, in light of the evidence that Respondent solicited employee grievances because the employees had expressed a desire for union representation, Olberding's admission concerning the course of conduct he adopted following the meetings with employees, the fact that employee grievances of the type thereafter corrected had not been corrected before the em- ployees sought union representation, and the fact that some of the classification changes were clearly shown not to have 9 The personnel records show Godsey as receiving a 7-cent-per-hour increase with his reclassification, but the parties stipulated this was incor- rect Godsey did not receive a raise on October 2 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been attributable to the correction of errors, absent some evidence by Respondent to explain the reason for such other reclassification changes and merit increases during the pre- election period, the inference is warranted, and I find, that with the exception of the seven merit increases which con- formed to Respondent's 90-day interval policy, the classifica- tion changes and merit increases to the other employees named in General Counsel's brief were unlawfully motivated. In addition to those already mentioned, that would consist of the classification changes and merit increases to the follow- ing: Earl Bailey, Joel Chatman, Gerald Combs, Robert Klaiss, Richard Lawson, David Pemberton, Ted Ryder, Steve Shuster, and Thomas Thomas. b. The posting of a notice of the removal of Foreman Spiece As noted earlier, one of thecomplaints of the employees at the October 2 meeting with Brandon was about foreman Doug Spiece who had been giving employees a lot of trouble. On October 4, Respondent posted the following notice: "At his request, Doug Spiece is being moved from his responsibil- ity as production foreman . He has asked for a permanent transfer and we have accepted. Doug is on leave of absence at this time due to the illness of his father."10 The complaint alleges that Respondent violated Section 8(a)(1) of the Act "in posting a notice advising employees that a certain fore- man had been removed from its Florence, Kentucky location in accordance with employee desires, in an attempt to under- mine the Union as the employees' representative for bargain- ing purposes." At first blush, it appeared to me that the gravamen of this complaint allegation was the fact of Spiece's removal from supervision and that the posting of the notice advising employees of that fact was part of General Counsel's proof that the action was taken to satisfy employee griev- ances. Upon further reflection, however, it appears that the gravamen of the complaint is the posting of the notice. Gen- eral Counsel's brief focuses on the posting of the notice as the conduct violative of Section 8(a)(1) because "of the mislead- ing aspect deceiving employees into believing that grievances could only be resolved by actions of the Respondent not by actions of their chosen collective bargaining representative." While I deem the posting of the notice to be unlawful, I would not articulate the basis of my conclusion in the way General Counsel does. The record indicates that Respondent has a practice of posting notices to employees of matters such as changes in supervision or other changes affecting employees, and Gen- 10 The foregoing is taken from a copy of the notice which was offered into evidence by Respondent as Resp Exh 11. Objection to receipt into evi- dence of the exhibit was made by Charging Party Godsey, and joined in by the General Counsel, on the grounds that the exhibit was a copy and not the original notice which had been posted, and according to Godsey's recol- lection the original notice had not contained the phrase "at his request " Counsel for Respondent conceded the exhibit being offered was a copy but made no effort to account for the absence of the original. Accordingly, the objection was sustained and Resp Exh 11 was rejected Thereafter, no further effort was made by any of the parties to account for the absence of the original notice, nor was any effort made to indicate precisely what the terms of the notice were. Upon reconsideration, as Resp. Exh. 11 is a Xerox copy of an original and was identified by Brandon as a copy of the notice that was posted, I have concluded that it should be received in evidence and Resp Exh 11 is hereby received into evidence. eral Counsel conceded as much at the hearing. On its face, the notice does not advert to employee complaints or the organizational campaign as the reason for relieving Spiece from his position as a foreman; rather the notice advises employees that the change in the supervisory status of Spiece has been effected "at his request." I nevertheless conclude that the notice was posted in violation of Section 8(a)(1) because I conclude the reason given in the notice for the removal of Spiece was false, that the reason for the removal was the employees' complaints on October 2, and that the notice was posted in the belief that the employees would inevitably link the removal with their complaints regardless of the language of the notice. According to Respondent, Spiece's removal from supervi- sion was wholly unrelated to employee complaints. Assistant Plant Manager Don Olberding testified that on September 28, Spiece had been granted leave of absence to visit his ailing father in Michigan. Prior thereto, Respondent had allegedly been dissatisfied with Spiece's performance but had not re- lieved him for lack of a replacement. When it became neces- sary to grant him leave of absence, Brandon decided to relieve him of his supervisory duties and Spiece was told this before he left for his leave of absence on September 28. According to Olberding, when the employees complained about Spiece at the October meeting, Brandon told them of Spiece's leave of absence and that, while no decision had been made as to what he would do on his return, he would not be supervisor. Olberding's testimony about Brandon's response was not directly contradicted except by Godsey, who testified that Brandon made no reply to the complainant. Unfortunately, neither Brandon nor any of the employees present at the meeting, other than Godsey, was examined on this point. I conclude that Godsey's testimony on this point is the more credible. My principal reason for so concluding is the fact that the terms of the notice are inconsistent with the explana- tion given by Olberding. According to Olberding, Respond- ent was dissatisfied with Spiece's work performance and it decided to remove him; yet, the notice stated he was removed "at his 'request." This contradiction in Respondent's own evidence is strong evidence that the reason given for Spiece's removal was a false one and that the real reason was the employees' complaints on October 2. Additional support for a conclusion to that effect is the fact that the decision was allegedly made on Friday, yet no notice to employees was issued on Monday, October 1, a logical time for such a notice, but rather the notice issued on Thursday. Whether or not Spiece was unsatisfactory as a foreman is, of course, not the issue. The issue is Respondent's motive. The timing of the action, the contradiction in Respondent's evidence, and the evidence that Respondent's response to its employees' union activities was to remedy their grievances, persuade me that Spiece was removed as a foreman to satisfy employee complaints and undermine the Union. Respondent thereby violated Section 8(a)(1) of the Act. B. The Alleged 8(a)(3) Conduct - Respondent manufactures fiberglass panels. They are made in various colors and the coloring is achieved by mixing resins with the material. In January 1974, Alan Godsey was working in the classification of mixer on the second shift. On LASCO INDUSTRIES, INC. January 16, Godsey ran a batch of material in which he admittedly used the wrong shade of green and Foreman Hicks suspended him for the remainder of the shift and the next work day. Godsey returned to work on Friday and during his shift met with Brandon, Olberding, and Hicks. According to God- sey, he complained that-it was wrong to suspend him when he had never been told whether his work was good or bad. Ollberding told him he had been warned and Godsey denied he had. Brandon told him the suspension was justified, that Godsey was the worst mixer they had ever had. When he said this, Godsey suggested they drop him back to another posi- tion. Brandon said they didn't work that way. He construed Godsey's remark as an admission he could not mix and told Olberding to suspend him until there was an opening. Godsey said if that was the way they were going to be he would mix and he started back to work. Brandon then told him that every time he made a mistake he would be suspended. The meeting ended. According to Godsey, when he returned to work he re- minded Foreman Hicks that he had not warned him before the suspension. Hicks confirmed he had not, but said that Olberding and two others had warned him. (Olberding had said at the meeting that he had warned him the day of the mistake prior to the start of the shift, but Godsey denied this.) That night Godsey ran panels calling for a color designated as white 4.5. The order was not completed by the end of the shift and it was completed by the first shift on Monday, January 21.On Wednesday, January 23, Foreman Hicks told Godsey that something had gone wrong, that the portion of the order completed Friday night did not match in color with the portion completed Monday morning. He told Godsey that they were going to run a 500-pound lot to determine who had made the error. This was done by Godsey while Hicks watched. The product matched the product which had been produced by the first shift. Hicks then suspended Godsey indefinitely. Godsey asked to meet with Brandon again and later a meeting was arranged for January 28. At that meeting, Godsey was removed from suspension and he returned to his mixer job on January 29. On February 1, Olberding offered Godsey a first shift job in maintenance which Godsey declined. Olberding also asked Godsey to sign a paper stating he would take any job in the plant with or without a pay cut and Godsey refused. A few days later Godsey was transferred to shipping on the first shift although he wanted a production job. General Counsel contends that the two suspensions of Godsey were discriminatorily motivated. In support of this contention, he adverts to Godsey's prominence in the organi- zational campaign, the absence of warnings prior to the sus- pensions, the circumstances surrounding the error on Janu- ary 18, the disparate treatment accorded Godsey, Respondent's reliance on unrelated shortcomings, and re- marks of Olberding in connection with the postsuspension transfer of Godsey. I have carefully weighed all these factors and am not pursuaded they are sufficient to warrant a finding that Godsey's suspensions were discriminatorily motivated. Insofar as Godsey's union activity is concerned, it is evi- dent that he was one of the leading supporters of the Union and that Respondent was aware, of than fact. Among other things, Godsey wore a Union T-shirt at work and he was the 535 one to tell Brandon at the October 2 meeting that the Union had filed a petition. It is true that the alleged discriminatory suspensions occurred more than 2 months after the election which the Union lost, but the Union filed objections to the election and Godsey testified credibly that he was active in soliciting employees to testify in support of the objections both by visiting their homes and talking to them at the plant. There is no direct evidence that Respondent had knowledge of this, but I believe an inference of knowledge can be drawn. The plant is not very large and it is clear that Respondent learns quickly of what is going on. Thus, it had learned early of the union meetings in late September, as shown by Bran- don's interrogation of Hacker, and employees were evidently prone to report on such matters as shown by the statements of first shift employees to Brandon on October 2. It is settled law, however, that union activities or member- ship do not insulate an employee from discharge, or, as here, suspension, for cause, and it is clear here that Godsey gave Respondent cause for the suspensions imposed on him. He admitted he made a mistake on January 16 and the record supports Respondent's conclusion that he was respon- sible for the January 18 off-color panels. The suggestion by General Counsel that the mistake was attributable to a faulty scale is, in my judgment, not deserving of consideration. Re- spondent had no reason to question the accuracy of the scale and General Counsel presented no evidence it was inaccurate. It is also settled law that although there may exist cause for suspension of an employee, suspension may nevertheless be found unlawful where the evidence indicates that the real reason for the suspension was the employee's union activity and not his poor work performance. General Counsel would have me apply this principle here and find the suspension unlawful for a variety of circumstances. Thus, he points to the evidence that the inspector graded the off-color panels Grade A on January 18, thereby causing Godsey`to continue run- ning the panels with the improper mixture. The record indi- cates the inspector also made a mistake in checking the color of the panels, but I fail to see how this avails Godsey. It was Godsey who made the initial mistake and the inspector's failure was in not catching the mistake. For this, he and others responsible for not catching the mistake were repri- manded. Godsey was suspended, but his mistake was the greater and had been preceded by a mistake 2 days earlier: General Counsel adverts to the fact that no employee had ever' been suspended before for poor work performance, in- cluding Paynter who had been replaced by Godsey because of his poor performance as a mixer. According to Foreman Hicks, Godsey's record was a lot worse than Paynter's. The record does not contain Paynter's personnel file for compari- son with Godsey's file, but Godsey's file contains several memoranda respecting his poor work performance. One memorandum dated August 28, 1973, reflects complaints by Hicks about a number of costly mistakes by Godsey. Accord- ing to a memorandum of September 7, 1973, Foreman Fort- ner spoke to Godsey about his work performance. On Sep- tember 19 and 26, and October 3, he failed to catalyze 500 pounds of resin. On October 30, he made two 500-pound pots of resin that were off color. On January 7, 1974, he did not mix enough resin to fill an order. In short, before Godsey was ever suspended, he gave proper and sufficient cause for sus- pension. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel contends the suspension came without a warning. Godsey so testified. I do not credit him. Foreman Hicks testified he spoke to Godsey on several. occasions and Foreman Trainee Regg, according to a memorandum of January 9, 1974, told Godsey that recurrenee of mistakes could result in further disciplinary action, including dis- charge. Regg did not testify and the memoranda in Godsey's file had not been shown to him, but Godsey was not examined about the memoranda at the hearing and did not therefore dispute the accuracy of their contents. The record indicates that Godsey last received a merit increase in December 1972. In my judgment, the record permits of no other conclusion than that Godsey had been warned about his work perform- ance, and the evidence. is insufficient to support a finding of disparate treatment. Finally, as to the postsuspension remarks by Olberding in connection with the transfer of Godsey, I deem them insuffi- cient to warrant a finding that the suspensions, were dis- criminatorily motivated. I note that there is no contention the transfer was unlawful. To conclude this issue, I would note that Godsey had given cause for suspension long before January 1974, including during the period preceding the election. No action was taken against him. As my findings above indicate, Respondent en- tertained sufficient animus against the Union that it commit- ted 8(a)(1) violations. However, Respondent's tactic was to use the carrot and not the stick. It appeared to have suc- ceeded as of January 1974 and I fail to understand why it would have decided to resort to the stick. I shall recommend dismissal of the allegations respecting Godsey. C. The Alleged 8(a)(5) Violation The complaint alleges that since on or about October 2, 1973, the Union has been designated by a majority of the employees in an appropriate unit" as their representative for purposes of collective bargaining; that on October 2, the Union demanded recognition as such representative; and that Respondent denied recognition. Respondent admits the de- mand and the denial. Based on the foregoing allegations, and the unfair labor practices of Respondent as set forth in the complaint, General Counsel asserts that a finding is warranted that Respondent violated Section 8(a)(5) of the Act and that a bargaining order is appropriate pursuant to the principle of N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. The assertion that in the context of this case Respondent's refusal to recognize and bargain with the Union is violative of Section 8(a)(5) of the Act may be disposed of summarily, because since issuance of the complaint and the filing of General Counsel's brief, the Board has held that in cases of this type a finding of a violation of Section 8(a)(5) is not warranted. Steel-Fab, Inc., 212 NLRB 363 (1974). Accord- ingly, I shall recommend dismissal of the 8(a)(5) allegation. 11 The complaint alleges, Respondent stipulated, and I find, that a unit of all production and maintenance employees, including shipping department and truckdnvers employed by Respondent at its Florence, Kentucky loca- tion, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act Although the Board has held that a finding of a violation of Section 8(a)(5) is not warranted in cases of this type, it continues to adhere to the proposition set forth in GisseL supra, that in appropriate cases involving employer miscon- duct a bargaining order may issue as part of the remedy for the misconduct. To give effect to this proposition, it is neces- sary to consider the Union's majority status and the serious- ness of the employer's misconduct. D. The Union's Majority Status The parties stipulated that as of October 2, the date of the demand for recognition, the unit consisted of at least 68 employees. According to Respondent, the unit should also include George Disque and James Mann. General Counsel would exclude Disque as a supervisor, but as I have found that Disque is not a supervisor, I shall include him in the unit. General Counsel would exclude Mann on the ground he works in the same job classification as James Herzog who Respondent agreed to exclude form the unit. Herzog is classi- fied as a production scheduler and so is Mann. However, in October he was a shipping clerk and a trainee for production scheduler. I conclude the evidence does not warrant a finding that at the time relevant herein; namely, October 2, Mann was either a supervisor or in a job classification excluded by the terms of the stipulated unit. Based on the foregoing, I find that the appropriate unit on October 2 consisted of 70 em- ployees. In order to establish a majority in the above unit, General Counsel introduced into evidence 40 cards, one of which had been signed by James Mann. General Counsel disclaimed reliance on Mann's card in view of his contention that Mann should be excluded from the unit. However, as I have found Mann to be in the unit and as the validity of his card has been fully litigated, I shall give consideration to it in determining the Union's-majority status. All 40 cards were properly authenticated either by the signers themselves or by a witness to its execution. Respond- ent asserts in brief that the card of Charley Sams should not be counted because his name is in printed rather than cursive style. That fact is insufficient basis for invalidating an other- wise validly authenticated card. C. A. Froedge Delivery and Trucking Service, Inc., 172 NLRB 46 (1968). Respondent asserts that the card of Mona Richardson is invalid because she testified she did not date it, and that of Alan Cornelius is invalid because he testified someone had changed the date. The alteration in date is immaterial as Cornelius admitted he signed the card before October 2, the date of the demand. In any event, his card and that of Rich- ardson bear the date stamp of Region 9 of the Board showing that they were submitted to the Board on- October 2. They may therefore be counted unless invalidated for some other reason. Yazoo Valley Electric Power Assn., 163 NLRB 777 (1967), (Card of Lee Lard). The card of William O'Reilly is challenged on the ground he was told that his job might be in jeopardy if he did not sign. Patterson admitted mention of the possibility of loss of jobs in talking to employees at a meeting. He testified that he told them that it was not improbable that employees active in the organizing campaign would be terminated and a signed union card would be proof of an employee's union acitivity. O'Reil- LASCO INDUSTRIES, INC. ly's testimony does not conflict with this explanation and I see no basis for invalidating the card by reason of such a comment. The comment was not a threat , but an argument in favor of signing." O'Reilly's testimony was no more than a statement of his subjective motivation , an unreliable factor in determining the validity of cards.13 Although Respondent does not advert to this in his brief, the record indicates that Mona Richardson and Dennis Knarr were told by the solicitor that no one would know they signed a card. Such statements do not invalidate their cards. Steele Apparel Company, Inc., 172 NLRB 903, 922 (1968). The principal attack of Respondent on the validity of the cards is based on assertions of more general application than the foregoing. Thus Respondent asserts, "This case is proba- bly an N.L.R.B. first. Herein, the General Counsel seeks a bargaining order on behalf of a union whose international representative and principal organizer used a sawed -off-shot- gun in connection with his solicitation of card signatures .... Such conduct is completely intolerable and totally incon- sistent with the purposes of the Act to promote industrial peace and free and reasonable choice in representation elec- tion." This assertion is based on testimony of Alan Cornelius that Patterson had brought a shotgun to a meeting at the Holiday Inn which he had laid down by the table he was sitting at, and at some point, whether after or during the meeting is not clear, he loaded it and stated this was for his protection, that he had been shot twice or something . Patter- son admitted he had a shotgun at the meeting place . Accord- ing to Patterson, the meeting was breaking up and he was about to check out (meetings were held in his': motel room) and he laid the shotgun by his brief case. He did not specifi- cally deny loading it in the presence of the employees or stating why he had the shotgun . I am very dubious about Cornelius' testimony . He was a thoroughly unreliable witness as shown by his testimony that he had not read the authoriza- tion card when it is undisputed he was a member of the organizing committee and solicited other employees to sign cards. I, therefore , credit Patterson's description of the inci- dent involving the shotgun . Apart from that, it is clear that the presence of the shotgun forms no basis for invalidating any cards. Cornelius admitted that Patterson did not threaten him, that he had no reason to. His testimony that the incident "was more or less a show of force to me" is an expression of opinion not entitled to any weight. Respondent's principal attack on the validity of the cards is that they were solicited "on the explicit or indirectly ex- pressed representation that they [union organizers] would use such cards only for an election . .. . The authorization card signed by the employees in this case reads as follows: - I hereby accept membership in the Textile Workers Union of America of my own free will and do hereby designate said Textile Workers Union of America as my representative for the purposes of collective bargaining in respect to rate of pay, wages, hours of employment or other conditions of employment. 72 According to Comehus , Godsey made a similar argument to him 13 N.L.R.B. v. Gissel, supra at 608 537 A card containing language such as this is generally re- ferred to as a single-purpose unambiguous card'as to which the rule of law has long been that it will be counted for purposes of proving majority status unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election . This rule of law is known as -the Cumberland Shoe doctrine,'4 and in Gissel, su- pra p. 606, after analysis of the conflict in the circuits with regard to this matter, the Supreme Court stated "In resolving the conflict among other circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly can- celed by a union adherent with words calculated to direct the signer to disregard and forget the language above his signa- ture. There is nothing inconsistent in handing an employee a card that says the signer authorizes the Union to represent him and then telling him that the card will probably be used first to get an election." It is this rationale which must be applied in evaluating the merits of Respondent's challenge to the validity of the cards. In support of this challenge , Respondent elicited testimony concerning the purpose of the cards from 16 employees. Of these, four employees, Walter Osborne, David Pemberton, George Arrowood, and Kenneth Johnson , can be said to have testified that they were told that the only purpose of the card was to obtain an election . Actually, neither Osborne nor Pem- berton described what they were told about the purpose of the card; rather, both gave an affirmative answer to a leading question by counsel for Respondent . The question to Osborne was as follows: "Mr. Osborne, when you signed this card or prior to your signing this card were you told that it would have only one purpose?" The question to Pemberton was essentially the same. The word "only" was also injected into the testimony of George Arrowood by leading questions, but in a somewhat different manner. Arrowood had solicited employee Charles White to sign a card and he was called by General Counsel to identify the card. On cross-examination , he was asked, without objection, what his understanding was of the purpose of the card. He replied that it was to be used to get an election. He testified this was what he told White , and answered affir- matively the leading question "And that would be its only purpose?" I can give no probative weight to testimony elicited in this fashion. In the cases of Osborne and Pemberton , the examina- tion and cross-examination were so cursory that little emerges from their testimony except the questions and an- swers described above. The examination of Arrowood, was more thorough and a review of his entire testimony indicates that no one told him the only purpose of the card was to get an election. As he testified when asked whether Patterson said that the only purpose of the card was an election, Arro- wood replied, "That's all he brought up and that's all he said about it." This is not testimony that Patterson said the only purpose of the card was an election . Insofar as Arrowood's representations to White are concerned, he testified he asked White to sign a card to get enough members to get enough majority to hold an election . He also explained to White what 14 Cumberland Shoe Corporation, 144 NLRB 1268, (1963) 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the card was and "that I thought at that time that we needed one." As I construe this, by "one" Arrowood meant they needed a union. He may have believed an election was neces- sary to get a union, but he wanted a union, and an examina- tion of his entire testimony indicates there were no represen- tations to him designed to direct him to ignore the language of the card, nor did he make any representations to White to nullify the language of the card. White also testified about being solicited by Arrowood and he did not indicate he was told the card was only for an election. He testified concerning his intent-in signing, but I regard such testimony as not worth consideration. Kenneth Johnson's testimony about the purpose of the card was not elicited by a leading question. He testified that Patterson told employees at a Holiday Inn meeting what the purpose of the card was and when asked what Patterson said, he replied "That the cards were only for like I said, the petition, and that they would be used for no other reason." No other witness who was not examined through leading questions attributed such a remark to Patterson, and I do not credit it. I am persuaded that what Johnson testified to was his understanding rather than what he was told. James Mann testified that he asked Patterson at one of the meetings what the significance of the card was and that Pat- terson replied, "The signing of the cards merely meant that they needed a majority of the people in the plant to sign the cards, which then they would present these cards to the NLRB and that would merely grant them time. I guess-or it would grant them approval by the NLRB to present their sides or whatever, you know." Respondent con- tends that by "merely" Patterson was representing that the card would "only" be used for an election. But Mann's "Merely" was not even associated with an election, it was associated with "they needed a majority of the people in the plant to sign cards." Mann did not use the word election at all; it was Respondent's counsel who did. I conclude that Mann's testimony is inaccurate to the extent that it suggests Patterson told him and other employees present that the cards would only be used for an election. According to most of the witnesses, the idea projected when they were asked to sign cards was their use to obtain an election. Thus, when Mona Richardson was asked what she had been told she replied she was told "that we needed some more cards signed to get an election. . . ." Bill Watts testified he was told "that they needed it for an election to see if they could get a count." Ora Holbrook, Floyd Delaney, Michael Butcher, Robert Klaiss, Dennis Knarr, William 0'- Reilly, and James Hamilton gave testimony which is essen- tially the same. According to all these witnesses, the only purpose of the cards which was mentioned by the solicitors was to .get an election. But there is a significant difference between telling employees of only one of the two purposes for which a card may be used and telling them it will only be used for such purpose. As I understand the signers' testimony, the former situation was the case here, rather than the latter. In other words, it's not that employees were told that the cards would only be used for an election, but that they were not told it would be used to demand recognition. Actually, it is not completely accurate to state that no mention of a demand for recognition was made. Patterson did mention to employees that a demand for recognition would be made. According to Patterson, at the employee meetings, I said that the card, we definitely had to have thirty percent to petition the Board for an election. And I told them at this time that I would not petition the Board with, unless we had well over fifty percent and preferably sixty percent, maybe even seventy. After saying this I mentioned the fact to the people that we, it was customary-that the reason I wanted over fifty percent it was customary for us to send a demand letter for recognition, and that ninety-nine point-nine percent of the time the employer would not sit down and agree to an unbiased party, you know, going over the cards and give us recognition. It just very seldom happens. And in that case we would like to, you know, we always give it a shot in that direction. And I mentioned the fact that we needed a definite clear majority to do this. I.credit Patterson's testimony. It is not in conflict with that of the witnesses last mentioned above. In addition, his tes- timony is supported by evidence that at one of the meetings, Patterson read to the employees the outline of a proposed letter demanding recognition. At a later meeting, after de- mand had been made, a copy of the demand letter was read as was Respondent's reply. There is no evidence that any employee ever protested that such action was inconsistent with representations made to them. It is evident in this case that the thrust of card solicitors was on use of the cards for an election, but the cards very clearly stated that the signer was designating the Union as his bargaining, representative and I am loath to disregard such clear language, absent equally clear evidence that statements were made to employees to ignore the language of the card. In concluding there is no such evidence here, I note that much of the testimony came from witnesses whose grievances were remedied or who received classification changes for the very purpose of preventing unionization. As the Court ob- served in Gissel, supra at 608, "We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company coun- sel, to give testimony damaging to the Union, particularly when company officials have previously threatened reprisals for union activity in violation of Section 8(a)(1)." (There were no threats here, but grievances were remedied.) A companion item of evidence on this idea is the testimony of Dennis Knarr that about 1 week before hearing in this case, Plant Manager Brandon posted a notice on the bulletin board that in his opinion the only reason cards were solicited was for the pur- pose of obtaining an election. Knarr's testimony on this point was elicited on cross-examination by a leading question and General Counsel did not really develop the point beyond such a question, but neither did Respondent explore the point. It is obvious to me that a notice such as described could well have planted a seed that produced the testimony before me. On the basis of the foregoing, I conclude that the record does not support a finding that card solicitors explicitly or indirectly represented to card signers that his card would be used for no purpose other than to help get an election, further I conclude that none of the cards in the case was invalidated, by improper representations, and I find that at all times relevant herein a majority of Respondent's employees in an LASCO INDUSTRIES, INC. appropriate unit had designated the Union to represent them for purposes of collective bargaining.15 E. The Employer's Misconduct Even though the Union had been validly designated by a majority of Respondent's employees, Respondent's refusal to recognize and bargain with it, without more, is insufficient basis for recommending an order that Respondent recognize and bargain with the Union. In order to justify such an order, it must be shown that Respondent engaged in unfair labor practices sufficiently serious or pervasive that the possibility of erasing the effects of such -practices and insuring a fair election by the use of traditional remedies, though present, is slight, and employee sentiment once expressed through cards, would, on balance, be better protected by a bargaining order.16 There is really only one significant unfair labor practice in this case, but it is one of substantial significance. I have in mind Respondent's solicitation of employee grievances and the correction of such grievances at the very outset of the organizational campaign. As was pointed out earlier, one of the major complaints of the employees was Respondent's failure to abide by its job classification and merit increase policy and several employees complained about this to Plant Manager Brandon on October 2. Their complaints were remedied forthwith, with four employees receiving retroac- tive pay and many employees being reclassified and given merit increases. The Board has recognized rightly that "there are few unfair labor practices so effective in cooling em- ployees' enthusiasm for a union than prompt remedy of the grievances which prompted the employees' union interest in the first place."" In my judgment, Respondent's prompt remedy of the grievances of the employees in this case effec- tively dissipated the Union's majority status and removed not only for the time, but for an indefinite period of time, any inclination employees might have to select union representa- tion. (Only one card was signed after October 2.) In the face of such conduct, I do not believe that a fair election could be conducted, and that the possibility of a fair election by the use of traditional remedies is slight. Accordingly, I shall recom- mend that the Board issue a bargaining order requiring Re- spondent to recognize and bargain with the Union as a remedy for its serious unfair labor practices. III THE OBJECTIONS Before the Board will issue a bargaining order based on authorization cards where there has been an election pursu- ant to representation petition, timely objections to conduct affecting the results of the election must have been filed and have been found meritorious so that the election results are set aside. Irving Air Chute Co., Inc., 149 NLRB 627 (1964). As noted earlier, a representation petition was filed in this case and an election was held. Thereafter, the Union filed 15 1 include in this majority the card of James Brown signed on October 4, after the demand for recognition, as it is clear the demand was a continu- ing one 16 Gissel, supra at 614, 615. 17 International Harvester Company, 179 NLRB 753 (1969). 539 timely objections to conduct affecting the results of the elec- tion asserting as objectionable conduct the following: 1. In the period preceding the election, the employer unilaterally gave wage increases to a large number of employees. 2. In the period preceding the election a large number of employees were promised wage increases. 3. During the period preceding the election, some em- ployees were promised promotions. 4. On the day of the election, the employer's assistant plant manager, Don Olberding, interrogated a number of employees in regard to their union position. Extensive discussion of the foregoing objections is not nec- essary. As to Objection 4, I shall recommend that it be over- ruled because no evidence was submitted to support it. As to Objections 2 and 3, no evidence was adduced of any express promises of either wage increases or promotions. However, as my findings above indicate, on October 2, Plant Manager Brandon, and again in mid-October, Industrial Re- lations Director McMurphy, solicited employee grievances under circumstances whereby wage increases and promotions (that is, change in job classifications) were implicitly pro- mised. Based on the analysis given above in connection with the complaint allegations concerning the solicitation of griev- ances, I conclude that Respondent implicitly promised wage increases and promotions and find merit to Objections 2 and 3 and shall recommend that they be sustained. As to Objection 1, it is clear that many employees were granted wage increases during the preelection period under the guise of classification changes and that such wage in- creases were unlawful for reasons given above. Accordingly, I shall recommend that Objection 1 be sustained. In accordance with the foregoing, I shall recommend that the election be set aside, and in view of the recommendation that bargaining order be issued, I shall recommend that the petition for election be dismissed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with its operations described herein, 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. V THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including, for reasons set forth above, a recommendation that Respondent be ordered to recognize and bargain with the Union as the representative of its em- ployees to remedy the serious unfair labor practices which it committed by which it has rendered the possibility of holding a fair election slight. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Lasco Industries, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping department and truckdrivers, employed by Re- spondent at its Florence, Kentucky, location, but excluding all office clerical employees , professional employees guards and supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Textile Workers Union of America, AFL-CIO-CLC, is the exclusive representative of the employees of Respondent in the unit described in paragraph 3 above within the meaning of Section 9(a) of the Act. 5. By soliciting employee grievances in a manner and under circumstances implying that employees did not need a union to redress their grievances and by granting merit increases and job classification changes, including retroactive pay, to employees, and by removing a supervisor from his position because of employee complaints and posting a notice of its action, for the purpose of inducing employees to withhold their support form, or to cease giving assistance to the Union, Respondent engaged, and is engaging, in unfair labor prac- tices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 6. The refusal of Respondent to recognize and bargain with the Union on the basis of authorization cards did not consti- tute a violation of Section 8(a)(1) and (5) of the Act. 7. General Counsel has not established by a preponderance of the evidence that Respondent violated Section 8(a)(1) and (3) of the Act by suspending Alan Godsey. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER1ff Respondent, Lasco Industries, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Soliciting employee complaints and grievances and im- pliedly promising to remedy such complaints and grievances in order to induce employees to withhold support from, and to cease giving assistance to, Textile Workers Union -of 18 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 America, AFL-CIO-MC, or any other labor organization. (b) Granting employees wage increases and classification changes in order to induce them to withhold their support from, and to ,cease giving assistance to, the above-named Union, or any other labor organization. (c) Correcting employee grievances by removing supervi- sors from their positions in response to employee complaints and notifying employees of such action in order to induce employees to withhold their support from, and to cease giving assistance to, the above-named labor organization, or any other labor organization. (d) In any like or related manner interfering with , restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist, the above-named labor organization, or any other labor organization, to bar- gain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act or to refrain from any or all such activities. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Upon request, bargain collectively with Textile Work- ers Union of America, AFL-CIO-CLC, as the exclusive rep- resentative of all employees in the unit described above, and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its Florence, Kentucky, plant copies of the attached notice marked "Appendix."19 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized represen- tative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from receipt of this Decision as to what steps have been taken to comply herewith. As to Case 9-RC-10310, it is recommended that Objection No. 4 be overruled, that Objections 1, 2, and 3 be sustained, and that the election be set aside and the petition be dis- missed. IT IS FURTHER RECOMMENDED that the allegations of the complaint not hereinabove found to have been supported by the evidence be and they hereby are dismissed. 19 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."