Federal Alarm

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federal Alarm and Communications Workers of America, AFGCIO and Federal Alarm Employees Committee, Party in Interest. Case 31-CA-6145 June 27, 1977 DECISION AND ORDER On January 31, 1977, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Counsel for the General Counsel filed cross-exceptions and a brief in support thereof, and an answering brief to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Federal Alarm, Rialto, California, its oficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Sfanhrd Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In the absence of excepting thereto, we adopt pro forma the Administrative Law Judge's conclusion that Respondent dominated the Federal Alarm Employees Committee. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at San Bernardino, California, on November 16 and 17, 1976.1 The complaint, issued July 29, A:: &.,A i~rrc~naf~er are withffl I976 unless stated to be otherwise. General Counsel filed a motion dated December IS to correct the transcript herein. The motion was not opposed, and hereby is granted. was based on an original charge filed May 19 and a first amended charge filed May 26 by Communications Work- ers of America, AFL-CIO, hereinafter referred to as the Union. The complaint alleged that Federal Alann, herein- after referred to as Respondent, violated Section 8(a)(l). (2), (3), and (5) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. The amended complaint, issued November 1, alleges that Respondent violated Section 8(a)(l), (2), (3), and (5) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record of the case,2 and from my observation of the witnesses and their demeanor, I make the following: Respondent is now, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in Rialto, Califor- nia, where it is engaged in the installation and maintenance of monitor alarm systems. In the course and conduct of its business operations, Respondent annually sells goods or services valued in excess of $50,000 to customers and business enterprises within the State of California, which customers and business enterprises themselves meet one of the National Labor Relations Board's jurisdictional stan- dards. I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Communications Workers of America, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Federal Alann Employees Committee, hereinafter re- ferred to as Committee, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent, whose vice president and general manager is Ralph Buchwalter (Buchwalter), installs and maintains burglar and other alarm systems in residences and businesses. The systems are monitored at Respondent's principal business location, in a high security area 230 NLRB No. 78 FEDERAL nstructed within that location, commonly the central station. Employees use keys3 to entrance to the main building, and they gain entrance a1 station by being "buzzed in" after identifying to an operator within the central station. cany "code cards," in addition to keys, used a method of identification. Employees total and consist' primarily of system installers, en. and central station televhone operators. The first'organizational activity 'involvirig Respondent's business occurred on Mav 12. when Daniel O'Brien (an installer and serviceman) ind David Gillem (a servicem&) viaited Armine Rochford, executive vice president of the Union, and asked for assistance in organizing Respondent. Rochford and Dennis Adams, president of the Union, talked with O'Brien and Gillem about the Union, and the two employees were given union authorization cards to sign. They signed the cards and then were given blank cards for distribution and solicitation of signatures. During the evening of May 12 and the following day O'Brien and Gillem solicited signatures, and on May 13 they returned 17 signed cards, including their own, to the union ofice. On the following Saturday (May 15) O'Brien turned in another card to Adams, making a total of 18 signed cards. On May 13 Adams wrote a letter to Buchwalter, who received the letter May 14, reading as follows: This letter is to inform you that the Communications Workers of America, Local 11573, has been and is anizing your employees u are aware, the Nationa1,Labor Relations Act e Labor-Management Relations Act he entire enforcement power of the es government behind the right of your organize. Section 7 of the Act states in loyees shall have the right to self form, join, or assist labor organiza- erefore, please be informed that Mr. Daniel en and Mr. David Gillem are actively exercising rights as previous1 stated and are members of an ant committee for 2 e Communications Workers of e Communications Workers of America, Local 11573, presently represent the majority of all hourly- paid employees of Federal Alarm in the City of Rialto, California. Therefore, it is desirous for the Communica- tions Workers of America to meet with you at your earliest convenience for the purpose of bargaining a contract covering the wages and other working condi- tions of these employees. On the afternoon of May 14 Rochford called Buchwalter d they agreed to meet on May 19. proximately 15 employees met in a park with a union representative in attendance. organizational efforts were discussed, after as taken to determine union interest. The eys, as required by their jobs, for opening alarm Olncy testified the date was May 19, but that is found to have been an lordvuccnt error. ALARM 519 tally was eight in favor of the Union and seven opposed. Approximately six unit employees did not attend the meeting in the park. The identi meeting was not established at Union filed with the Board a peti AU inspectors, installers, senior installers, serviceman, senior servicemen, operators and shopmen employed by Federal Alarm at 300 South Sycamore Street, Rialto, California, excluding office clerical, plant clerical, sales, professional, accounting, confidential, guards, and supervisors as defined in the Act. During the morning of May 17 O'Brien met with Buchwalter at a coffeeshop, with Wqam Dunn, Respon- dent's director of sales, also present. Tkey talked about O'Brien's union activity and about organizational efforts at the plant and, after the conversation, O'Brien rode back to the plant with Buchwalter, in the latter's car. From about 10 a.m. until about 2 p.m. on May 17, with some time out for lunch, a meeting of employees was held by Buchwalter in his office at the plant. Union activities, organizational efforts, grievances, and other matters were discussed. At one point in the meeting employees held a vote, with Buchwalter out of the room, and decided, by a vote of 18 to 3, to represent themselves through their own fellow-employee representatives, rather than to have a union representative. Later in the meeting employees voted for their employee-representatives, again with Buchwalter out of the room during the voting. Representatives so selected were Grant DriskiU for installers, Linda Gibson for operators, Gillem for servicem secretary of the group. On May 18 a letter signed by delivered to Adarns, requesting union membership cards." The employees were told the cards had been sent to NLRB. On May 184 Stephen Olney, a union national representa- tive who worked with Rochford on the organizational effort at Respondent's plant, tel honed Buchwalter and T canceled the meeting scheduled etween the Union and Respondent for May 19, because "as a result of your meeting yesterday, I feel as though there is no reason for us to meet." cel our involvement and every one of us has reached this decision of our own choice and without any coercion or influence of either the employer, C.W.A., or the elected representa- 5-22-76 a d Bradley /s/ 5-22-76 3: Grmt ThiskiU /s/ q-77-76 Received by NLRB on June 3. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Leslie Duff /s/ 5-22-76 5. Mary Bessermin /s/ 5-26-76 6. James Garton /s/ 5-25-76 7. David Gillem /s/ 5-22-76 8. Esther James Is/ 5-25-76 9. Paul Kane /s/ 5-22-76 10. Linda Gibson /s/ 5-25-76 I I. Marvin Lucas /s/ 5-22-76 12.- Ted Lust /s/ 5-23-76 13. Grace Marsteller /s/ 5-22-76 14. Earla D. McCourt /s/5-25-76 15. Jerry Owen /s/ None 16. Joe Roach /s/ None 17. Daniel O'Brien /s/ None 18. Normand Rush /s/ 5-22-76 19. David Stokes /s/ 5-21-76 20. Michael Wehr /s/ 5-21-76 21. Sally Clover /s/ 5-27-76 The four employees selected as unit representatives established with Buchwalter a schedule for meetings during work hours each Monday morning, at the plant, starting at 8:30 a.m. Meetings were held, with Buchwalter present at all of them, as scheduled except when date changes were necessary. Dates of such meetings were established at the hearing as May 21, 24, and 27 and June 3.6 Subjects discussed at the meetings consisted mostly of complaints and possible improvement of working conditions. On August 18 Rochford wrote the following letter to Buchwalter: I would like to request a meeting with you at your earliest convenience for the purpose of discussing contract negotiations for your employees. I realize you intend to appeal the bargaining recommendation of the N.L.R.B. However, if we can avoid litigation in the mutual interest of your employees, it would be to everyone's benefit. I will be out of town August 23-25. Any other time I will make available to you- You may contact me through our office secretary at 883-9990, between the hours of 1 :00 and 5:30 p.m. Rochford testified that, in her opinion, Respondent's employees did not want union representation as of August 18. She stated: Q. So you did not poll the employees on August 18, and you did not know on that date whether or not they actually intended or desired to have the union represent their interest in contractual relationships on that date; is that correct? A. I want to answer you truthfully. You have got to understand that. At that date I understood our majority had been destroyed and that a majority of the employees there at Federal Alam felt that if CWA went away, they would be relieved of an awful burden. There was a brief, informal meeting after the general group meeting of May 17 at which representatives were elected. ' As shown by G.C. Exh. 9. Lucas' card was admitted by stipulation. So, it's kind of difficult. I am going to have to say to you that at that particular time the employees did not want a union, the majority of the employees did not want a union. I have to be truthful. No meeting was held as proposed by Rochford, the Committee continued to represent the employees, and Respondent and the Union have not negotiated to date. Issues The principal issues are whether Respondent dominated, interfered with, and assisted the Committee in violation of Section 8(a)(2) and (5) of the Act; whether Respondent thereby and through other means destroyed the majority status theretofore enjoyed by the Union; whether Respon- dent has failed and refused to bargain with the Union in violation of Section 8(a)(5) of the Act; and whether Respondent committed independent violations of Section 8(a)(1) and (3) of the Act as alleged in the complaint. A. Union Status Prior to May 17 There is no dispute about the fact that 18 union authorization cards were filled out, signed, and delivered to the Union on May 13 and 15, or the fact that there were 2 1 employees in the unit as of those two dates. Respondent's argument on this issue is that the cards are not valid because of misrepresentations and misunder- standings on the part of employees at the time they signed the cards. Testimony of witnesses shows that the following five cards were signed properly in every respect, and are valid for the purpose of determining whether the Union enjoyed majority status as of the dates the cards were signed: O'Bnen, Gillem, Kane, Rush, and Lust. The following four cards were signed and delivered to the Union,7 but the signers were not called as witnesses and subjected to cross-examination relative to their signatures: Duff, Garton, Gibson, and Lucas. Those cards are excluded from wnsideration.8 Bessermin testified that she read the card given to her by Gillem, filled it out, dated it, and signed it. She said she remembered no conversation at the time other than being told "that it was to learn more of the pros and cons of the union." In view of her having read and signed the card, the statement she remembers does not invalidate her signature, nor does it change the import of the card language, which clearly shows the purpose of signing. There is no way in which the entire conversation between Bessermin and Gillem can be reconstructed, but the card signature prima facie is valid, and Respondent did not show otherwise. Bessermin's card thus is found valid.9 McCourt testified that she read, filled out, and dated her card, then signed it. She said O'Brien told her at the time she signed "it was to hear the pros and cons of the union and it was to vote on it." As in the case of Bessermin's card, Cumberland Shoe Cor;.nr?;n-, 114 NLSP 1?5S :*""";, mf:. FJJ 917 (C.A. 6 1%5), approved in N.LRB. v. Gissel Packing Co., Inc., 3% U.S. sa (1969). FEDERAL ALARM 52 1 there is no indication that McCourt did not understand the card language or was misled as to its purpose, or did not know what she was doing. Clearly no misrepresentation was shown. Under such circumstances the Cumberland Shoe rule applies. McCourt's card is found to be a valid one. Clover testified that she read the card handed to her by Mrs. Gillem and Mrs. O'Brien, filled it out, dated it, and signed it. She said she understood that, by signing, she was going to find out more about the Union. Her card reads as follows: 10 Name Sally Ellzabetb Clover ( P l e a s e Print) Plr8t Hlddle Laet . - - - Mdres8 10620 N. L m n Clrcle Apt. J Street ~ i r a ~ c m n Cdif. 91792 U f y State Zip Code T e l . No. 685-6783 Job T i t l e Operator I sm 81 Employee of Federal Alarm - - Deparlmenf sectlrm and I hereby designate the Comunlcatione UorLera of America. a. my collective bargaining representative. Date 5-12-76 signature /s/ Sally Cbver Form 0-100 2/72 REPRESENTAXION AUTHORIZATION As in the case of Bessennin and McComt, there is nothing in the record to show that Clover did not understand the language of the card, or that the card was misrepresented to her. The card is found to be a *slid one.]' Stokes testified that he did not read the card given to him, but that he had an opportunity to read it, he filled it out, and he signed it. He said there was some conversation at the time he signed, but all he remembers is that the employees were "asked if we would sign the cards so that we could have the opportunity to discuss with a union representative regarding what they could do for us." He said he remembers seeing "CWA" or "Communications Workers of America" on the card. On cross-examination Stokes testified that he understood the card was solely for the purpose of talking with the Union. Stokes' testimony about his understanding of the card is not credible under the circumstances of the signing. First, Stokes said James was present at the time of the signing and the conversation with Gillem and O'Brien, yet James testified and did not list Stokes as among those present when she signed, and, further, James' version of the conversation diffim in many respects from that of Stokes. Second, Stokes said Wehr also was present, yet Wehr did not corroborate Stokes' testimony about the latter's alleged conversation with Gillem and O'Brien. Third, the act of filling in the card, and dating and signing it, is not consistent with Stokes' allegedly not reading the card. Finally, Stokes is a former member of two unions, and the likelihood that he would not recognize an authorization card for what it was is remote. It is found that Stokes knew what he was signing, that he signed freely and voluntarily, and that his card is valid. Marsteller testified that she read the card, "studied it quite a bit," and told Gillem "I would have to think it over." A couple of nights later Gillem "kept telling me the benefits of the company and also the union's" and she then filled in the card and signed it. MarsteUer stated: Well, I was just against it right along and I kept telling him that, as I said, and we discussed the pros and cons about it and more or less on those arrange- ments, and I told him I was still against it and was doing this against my betterjudgement. Q. Then you signed the card? A. This was after I had signed the card, and also before I signed it I told him that too. Q. What did Mr. Gillem tell you, if anything at the time you got the card? A. Well, he just indicated and outlined the benefits of the union coming in and what they could do for us, and I finally asked him, I said, "Well, has everybody joined," and he said, "Yes" - I mean, I said, "Has everybody signed the cards" and he said "Yes!' So, I thought, well I will just go along with them against my better judgement. As argued by General Counsel, although Marsteller was told that the Union may be able to offer better wages, hospital, and insurance plans, such representations do not invalidate a card.12 The representation to Marsteller that a vote would be taken later is insufficient to invalidate her card.13 Marsteller's testimony that she finally signed against her betterjudgement is insufficient to invalidate her card, since subjective motivation of the signer at the time of signing is irrelevant.14 With respect to Marsteller's having been assured at the time of signing that everyone else had signed, the Board has found this not to be sufficient to invalidate a card if, in fact, as here, practically everyone else had signed at the time of the card signing in questionJ5 There is no evidence that Marsteller signed because of the statement about others having signed. Finally, in view of her caution in signing, and her taking 2 days to think it over, it is highly unlikely that Marsteller was ignorant of the card, or its implications, or the consequences of her signature. Driskill testified that he "danced over it briefly," filled in the card, and simed it. fie said he asked Gillem and O'Brien "who di&'t sign cards," and the answer was "I believe they told me who had not signed cards at that time."'e Driskill's testimony was equivocal, there is no indication whether the alleged question and answer were lo All signed cards have the same blank forms. 14 Red Barn Sysrey Inc., 224 NLRB 1586 (1976). citing N.LR.B. v. I' Bradley testified that he, Gibson, and Clover asked Gillem why he had GisselPacking Co., Inc., supra. lied about the cards not being binding, and that Gillem replied he had been 15 B~~~~ B , ~ , ~ ~ k i ~ ~ co,, lnc., d/b/a ~~~~i~~~ ~ ~ , , l ~ ~ ~ k ; ~ ~ co., 198 misinformed. Gillem denied having the conversation. Gibson did not testify. NLRB 3.7, 328, 329 (1972); see G a A ~~~k L ~ ~ ~ , J,,~., 168 NLRB 846 Clover did nct corroborate Bradley's testimony. G;l!em is credited l2 Diamond Motors, Inc., 2 12 NLRB 820,830 ( 1 974). ( t m.7). l3 Shulmon's Inc. of Norfolk, 208 NLRB 772 (1974). ' 6 This differs somewhat from Driskill's testimony on cross-examination. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before or after his signature, and there is no evidence that he signed the card because of the alleged statement by Gillem or O'Brien. Under such circumstances, the alleged statement does not affect the validity of the card. Driskill also testified that, when he signed, he was told that the card would not be turned in to the Union until after he received a raise, and that he thought, when he signed, that the card was not going to be turned in immediately, whereas it was. However, there is no evidence that he would not have signed in the absence of such facts" and, further, there is no evidence that such a delay was a condition of his signing. Owen testified that he was given one card by O'Brien, but "didn't feel like reading it or anythmg. . . ." O'Brien gave him a second card on May 15, which he then read, dated, and signed. Owen stated: Q. Well, you just indicated that you signed, but nothing was said as to what the card was for, other than what it read? A. Mr. O'Brien didn't say anything. I drew my own conclusions from what the union members had told us at the meeting. On cross-examination Owen stated that he signed the card "so that the union could talk to Ralph [Buchwalter]," and he "was under the impression that there would be a vote." The Cumberland rule controls this issue, and requires a finding that Owen's card is valid. There is no evidence of misrepresentation, the election "impression" is speculative and of no probative value, and the statement that the card was signed to assist the Union in talking with Buchwalter is a statement of the possible sequence of events in such a situation. In summary, the language of General Steel Productsls is pertinent and applicable to this case. The Board there stated: As the court emphasized in Joy Silk Mills, Znc. v. N.L.R.B., 185 F.2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914, it has long been held that "an employee's thoughts (or afterthoughts) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card designating a union as bargaining agent." Accord: N. L. R. B. v. Greenfield Components Corporation, 3 17 F.2d 85, 89 (C.A. 1); N.L.R.B. v. Gorbea, Perez & Morell, S. en C., 300 F.2d 886 (C.A. 1); N.L.R.B. v. Whitelight Products Division of White Rolling & Stamp- ing Corporation, 298 F.2d 12 (C.A. I), cert. denied U.S. 82 1 ; N. L. R. B. v. Stow Manufacturing Co., 2 17 F.2d 900 (C.A. 2), cert. denied 348 U.S. 964; Dan River Milk, Incorporate4 Alabama Division, 121 NLRB 645, 648, enforcement denied on other grounds 274 F.2d 381 (C.A. 5). This rule is but another application of the principle expressed in AIIied Steel & Conveyers, Zm. v. Ford Motor Company, 277 F.2d 907, 913, that "[iln the absence of fraud or wilful deceit, one who signs a contract which he has had an opportunity to read and understand, is bound by its provisions." Such a rule is particularly applicable here, since almost all the employees who were asked, testified that they read the authorization card or that it was read to them before they signed it or authorized it to be signed in their behalf. Sound policy supports the application of the rule to union authorization cards. It has long been settled that such cards are an acceptable means of proving a union's majority (United Mine Workers of America v. Arkansas Oak Flooring Co., 351 US. 62, 71- 72), and they could hardly serve that ofice if they were subject to repudiation by testimony as to mental reservations. - At first dance, the distinction between representa- tions that an election is the sole purpose of the cards, and representation that an election is a purpose may seem a fine one, but the distinction goes to the very basis for the rule. Thus, by stating that the card may or will be used to secure an election, the solicitor neither contradicts the plain statement on the card nor misstates the Union's actual intention. As the Board observed in Cumberland Shoe Corporation, 144 NLRB 1268, "the failure of the Union's solicitors to affirma- tively restate [the authorization contained in the card] does not indicate that it was abandoned or ignored." Based on the foregoing, it is found that the 12 cards discussed above, that is, those of O'Brien, Gillem, Kane, Rush, Lust, Bessemin, McCourt, Clover, Stokes, Driskill, Owen, and Marsteller, are valid and constitute a majority of the unit employees as of May 16. Gillem testified that he told some employees "to listen to the pros and wns for going union," but that 'The majority, I told them was to have a union represent them in collective bargaining." This testimony is contrary to his earlier affidavit given to a Board agent, wherein he stated that he and O'Brien told employees they were not obligated ' to be represented by the Union if they signed the cards. Gillem was an unimpressive witness, but it is clear that there was some disregard for the truth on both sides of this controversy. It has been necessary to base some findings on facts apparent from the record as a whole, rather than on testimony of particular witnesses. In analyzing the 12 cards found valid above, it is clear that all 12 signers read the cards before signing, and that they did not sign because of any statement contrary to the language of the cards or because of any conditions they themselves imposed. There is nothing in the record to show that they signed involuntarily. To the contrary, it is clear that the union situation was common talk among employees prior to the dates the cards were signed and that employees signed because they wanted to. Perhaps some signers later regretted their actions, or were talked into changing their minds, but that is a separate problem, discussed infra, and does not affect the validity of the cards as of the date of signing. Consideration has been given to the meeting in the park on May 15, and the vote taken there, but the testimony relative to that meeting is far from complete and further, all employees did not vote at that time. Most of Buchwalter's actions to defeat the Union's majority of May l7 1.T.T. Semi-Conductors, Im., 165 NLRB 716 (1%7). Is General Steel Producrs, Inc., and Crown Flex of NorIh Caroliq Inc., 157 NLRB 636,644-645 (1966). FEDERAL ALARM 523 13 took place May 17; however, in view of the close vote on May I5 it is obvious, and it is inferred, that at least part of the reason for some employees' change of mind can be attributed to Respondent's words and actions after its receipt on May 14 of the Union's demand letter. This inference is of sufficient persuasion to overcome the lack of real evidence that Buchwalter talked to employees about the Union between his receipt of the Union's demand letter and the meeting in the park on May 15. General Counsel does no: argue that the remaining 6 of the 18 cards should be counted, hence those cards are not discussed. B. Alleged 8(a)(l) Violation of May 17 Paragraph 19 of the complaint alleges in substance that, on or about May 17, Buchwalter (a) interrogated an employee (O'Brien) concerning his union activities, and (b) threatened that employee with reprisals if the employee continued to support the Union. O'Brien testified that he talked with Buchwalter, while Dunn was present, in a coffeeshop about 9 a.m. on May 17. O'Brien stated: Mr. Buckwalter asked me if it would not be better to go to him instead of a third party and 1 said, well, under ideal conditions that would be true, but we don't -we aren't in ideal conditions. He asked me if it would be better if a truck, if a truck broke down, for me to come to him - I mean for me to come to him and ask him about it instead of a union steward and he stated that he would not be willing to talk to a third party orba union representative as he would if I would come mvself and ask him. THE WITNESS: He asced me what exactly was my complaint and I told him that management didn't seem or wasn't aware of the problems that the employees were having, that the pay was poor, not adequate, the benefits were not adequate and he suggested to me that would it not be better for me to come to him instead of going through a third party. A. He felt that - he said that he felt that the union would tend to mess things up and that the employees would be better off without the union and things would continue to run smoothly. O'Brien further testified that, while he was riding back to the plant with Buchwalter in the latter's car after the foregoing conversation, Buchwalter said: Q. What was said back and forth? A. That if I would support and talk for him things would go better for me. Dunn testified that he was present during the conversa- tion at the coffeeshop, but that he did not participate. He stated: A. They both sat down and immediately Mr. Buckwalter asked Mr. O'Brien what he wanted and Mr. O'Brien stated that he wanted benefits, that he wanted high salaries for the employees and that he wanted other obtainable assets which he thought he might personally be responsible for. Q. Did Mr. Buckwalter respond to that? A. He asked Danny O'Brien why he was doing all of this and Danny related that he enjoyed the personal satisfaction of stirring up things. That if he had choice he would like to organize unions full time. Q. Did Mr. Buckwalter respond to that? A. He responded that, "I'm sorry you feel that way. My door has always been open and I have always had the best interest of my employees at heart." Q. During the course of this conversation did Mr. Buckwalter in any way question Mr. O'Brien about his Union activities? A. No, sir. Q. Did Mr. O'Brien in any way relate any of his Union activities [sic] except the desires which you just related to us? A. No, sir. Dunn stated on cross-examination: Mr. Buchwalter I believe at that point said, "Why are you doing this?'And he said, "I get personal satisfaction out of this." He said, "I enjoy stirring up thngs and if I had my choice I would like to have a full time job organizing unions." Mr. Buchwalter said that he was disappointed, that he had always had an open door policy and had the best interest of his employees at heart. One other point that I didn't mention before is that Mr. O'Brien said, "Well, it's too late now." Buchwalter did not testify concerning the conversation in the coffeeshop, but he denied telling O'Brien in the car while driving back to the plant, that if O'Brien supported him things would go better for him. Discussion The record does not show who arranged the conversation at the coffeeshop or the initial reason given therefor. However, it is clear from the credited testimony of O'Brien and Dunn that Buchwalter: (1) knew that O'Brien was active in the organizational effort, (2) asked O'Brien what he was trying to obtain for the employees, (3) asked O'Brien why he was engaged in such acf vity. Under such circumstances there can only be one reasonable conclusion: that is, Buchwalter interrogated O'Brien about his union activities, as alleged. The statements attributed to Buchwalter in the automo- bile clearly carry the implied threat that things would not go smoothly if O'Brien continued his union activities and did not support Buchwalter. Buchwalter denied the alleged statements. O'Brien is credited. It is found that the allegations of paragraph 19 of the complaint are supported by the record.19 - - l9 Whether or not O'Brien felt threatened by Buchwalter's statements is immaterial. 524 DECISIONS OF NATIONAL LABOR RELATlONS BOARD C. Alleged Suggestion and Encouragement to Form an Employee Committee Paragraph 1 I of the complaint alleges in substance that, on or about May 17, Buchwalter suggested to Respon- dent's employees that they could represent themselves through a committee, and that Buchwalter encouraged those employees to form such a committee. Buchwalter did not testify relative to this issue. Respon- dent's testimony on this subject was limited to that of Bradley (who testified very briefly), Wehr, and Boldt. O'Brien testified at length, as did other General Counsel witnesses, concerning the meeting held in Buchwalter's ofice starting about 10 a.m. on May 17.20 The date, time, and place (Buchwalter's office) of the meeting are not in dispute. O'Brien stated that, at the meeting, Buchwalter repeatedly said it would be better for the Company and the employees to deal directly with him rather than through the Union, and that "the Union was in the way now," precluding such direct dealing. O'Brien said some of the employees actively supported Respondent during discus- sions at the meeting, and that Buchwalter indicated he would negotiate with the Union, but "it would be a slow laborious~rocess." Buchwalter stated that, whichever way the employees chose to go, he would abide by their wishes, but he preferred to deal directly with the employees. O'Brien testified that Buchwalter suggested the employees take a vote among themselves. There is no dispute about the fact that, after lunch, a vote was taken with Buchwalter and all other management personnel out of the room, and the tally was 18 to 3 against representation by the Uni0n.~1 Gillem testified concerning the meeting of May 17, and said Buchwalter stated that he preferred to negotiate directly with the employees rather than negotiate through a third party. Gillem testified that there was no discussion among employees prior to the vote of May 17, concerning an employees' committee, but that there was such a discussion after the vote was taken. Gillem testified: A. Well, the vote was 18 to three against the Union at that time. Mr. Buckwalter came back into the room and we told him that we had decided to negotiate with him directly and he said that that was fine, he would like to see it that way and that we should form at least one person to talk for the employees or have a committee of one person from each goup to talk for the employees in an employees' represented group. So, at that time, he was asked to leave the room again. He left the room and there was a vote of employee representatives. Grant Driskill was voted for installa- tion representative. Linda Gibson for the operators and myself for the servicemen and Belinda Boldt for the secretary for the committee. At that time the meeting ended. - -- 'O There is some dispute about how the meeting was called. It is found that it was a manduto~y meeting called by Buchwailer, attended by m t employees and management personnel. There is some dispute about who first suggested that a vote be taken, Gillem said Buchwalter told the employees during the meeting that it was their right to deal with him directly, or through the Union, according to their own desires, and that he was not trying to "sway the employeesw one way or the other. John Driskill, an installer who has been employed by Respondent approximately 9 years, testified that Buchwal- ter told the employees on May 17 that he would negotiate with the employees or with the Union, that "It made no difference to him," and "That was the main point of the meeting." Driskill said he "believes" he was the one who suggested that a vote be taken, that he "believes" Buchwalter thought a vote would be a good idea, and that he asked Buchwalter to leave the room during the voting. Driskdl testified that the employees decided among themselves to form a committee, after which Buchwalter was called back into the room; that Buchwalter said it did not matter who he negotiated with, but that he was "glad that the employees felt that they could still talk to him." Esther James, a telephone operator, testified that she attended the meeting of May 17. She said: A. He thanked us for coming and stated that there had been some problems come to his attention that he hadn't previously known about and there was some discuss& And, he said that he didn't understand why we hadn't come to him, because he had always had an open-door policy. And, about an hour or so after he spoke to us, he opened it for questions and suggestions, and that type of thing. Mr. Buchwalter stated that he was sorry that the problems had come up to where we felt we had to have &bitration. And, he stated that he would not give the union any concessions that he would not give us as a group personally. James said a representation vote was taken after lunch with Buchwalter out of the room, and, before Buchwalter was called back into the room, the employees decided on their representatives who would act as a committee in negotiat- ing with Buchwalter. James then stated: A. He didn't feel - he didn't seem to feel that any problem was so bad that we had to have a third party. He said that we had always been a close-knit group, that he had always tried to speak to those who had come to him, and that his door was always open. And, that we didn't need a third party to arbitrate for us. . . . Mr. Buckwalter said that he could not discuss specifics, say, for this group he is going to pay them so much and so on, but that if we decided to deal with him instead of the Union, then he would discuss it. and Gillern's testimony is not reliable in that it dilfers substantially from his earlier allidavif but that dispute is irrelevant in view of Buchwalter's iater actions, discussed infa Clearly, Buchwalter availed himself of the results of the vote. FEDER Q. Did Mr. Buckwalter indicate that he doesn't see any reason why the employees cannot settle their problems they had with management without any outside interference? A. Yes. sir. Michael Bradley, a serviceman for Respondent, testified that he attended the meeting of May 17, that ~uch4alter said he would negotiate with either the employees or the Union, and that Buchwalter did not suggest an employee representative group. Michael Wehr, a serviceman for Respondent, testified that he attended the meeting of May 17, that Buchwalter said he was disappointed with the employees going to a third party for assistance, that he always had been available for discussions, and that he would negotiate with either the employees or the Union Wehr also stated that Buchwalter "threw the meeting open for debate on some of the problems that we felt was relevant and some of the problems that caused us to go the extreme of signing these cards. . . ." Boldt testified that, at the meeting of May 17, Buchwal- ter said he was disappointed because the employees had not come to him first with their problems, and that he always had, and then had, "an open door policy-" Discussion It may be, as argued by Respondent, that Buchwalter did not, in so many words, suggest that the employees organize a committee to negotiate with him. However, his actions and words made that suggestion and encouraged the idea,, as clearly as though he had written a mqnorandum to that effect. Buchwalter attempted to show that, from the outset of the meeting of May 17, he was neuttal. However, that attempt failed because (I) had be been neutral, there would have been no need for the meeting, and it would not have been called, (2) his alleged neutrality was between union representation and employee representation, with a clear line of demarcation between the two, (3) he complained to the employees that their flirting with the Union was a sharp (extreme, in the words of employee Wehr) break with past practice, (4) he said his door was always "open" to employees for discussion and settlement of complaints and problems, and (5) he said it would be much better for the Compan and the employees to deal directly with each other raJer than though a third party. In order to nudge the employees toward his own preference, Buchwalter held out in clear and unmistakable terms the prospect of better wages and working conditions, as discussed below. His statement that he could promise nothing at that time because of union considerations effectively was negated, and implicitly wntradicted, by his further statement that he could, however, discuss wm- plaints and suggestions. Having thus established his desire to deal directly, and having thus tempted the employees with prospects of better wages and working conditions, including a close and friendly relationship with the "boss," the idea of an employee committee was inevitable. If Buchwalter did not overtly suggest the committee, he caused its creation through implied suggestion and encouraged its creation. The fact that Buchwalter was out of the room when the employees decided on a committee is immaterial. When he did return to the room he expressed relief that the employees had so decided, and he immediately accepted the Respondent-Committee relationship by holding the first of several meetings, without even mentioning the creation of the relationship or the roles the parties were to play therein. Based on the foregoing, it is found that the record supports this allegation. D. Alleged Petitions To Revoke Car& Paragraph 15 of the complaint alleges, in substance, that during the month of May Buchwalter instigated prepara- tion &d circulation of peiitions to revoke G o n authoriza- tion cards and to discontinue union activity. As found above, Buchwalter met with the employees because of their having signed union authorization cards resulting in a union request to bargain. At that meeting Buchwalter implicitly promised benefits and action on complaints and enwuraged the employees to abandon the Union in favor of self-representation. Buchwalter ex- plained at the meeting of May 17 that he wuld not take afTumative action to grant benefits and settle complaints at that time, because the Union then was a party in interest. Whether or not Buchwalter told the employees they should take action to remove the Union's interest,22 it was apparent that some such action was necessary if the employees were to be their own representative. O'Brien testified that, after the employees voted on May 17, he was asked to get the cards back from the Union. He called the Union on the telephone and was told the cards had been sent to NLRB and were not available from the union. Gillem testified that, on May 18, Buchwalter asked him to get a roster of the employe& and wme to Buchwaltefs house. which Gillem did. Gillem stated: sometimes things needed to be done to get the Union out of our hair. He suggested that we type up a Petition and get it signed by the employees and send it or hand carry it to the CWA for the return of our representation cards. Q. Did he suggest it? A. He actually typed it. Q. Did you comply with his request? A. Yes, I did. Gillem said he did as Buchwalta requested; 23 be obtained the signatures and presented the letter to Adam, who said the cards had been sent to the NLRB. Gillem testified: 22 Gillem testified on cross-examination rhat an employee, whose name he does not remember, suggested "that we write a petition to see if we can get our cards back from the union." 'Ihe letter is G.C. MI. 8. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So, I told that information to Mr. Buckwalter and he suggested that we write another one and send it to the NLRB with a copy to the Union. Q. When did he suggest this? A. I believe it was on the 19th or 20th of May. Q. Who else was present, if anyone? A. This was at one of the employee representative meetings. Driskill was present. Linda Gibson was present. Belinda Boldt was present and myself, I believe. Q. What did you do as a result of the suggestion, if anything? A. I typed up the Petition and posted it in the Central Station for everybody's signature. Gillem said the wording of the second letter*' was "suggested by Mr. Buchwalter." The letter was received by the NLRB June 6. Driskill testified that an employee raised the question during the meeting of May 17, while Buchwalter was present, about getting the cards back from the Union, and there was a discussion about how to get the cards back. Driskill said a handwritten rough draft of the letter to the Union was prepared. He said he did not remember who prepared it, but it was not Buchwalter. He said he did not know whether Buchwalter typed the letter. Driskill also testified that he did not remember who drew up the second letter, addressed to NLRB, but that it was not Buchwalter; it was "one of the employee representatives." James testified that she gave an employee roster to Gillem at his request, sometime after the meeting of May 17. Bradley said he was not certain, but he believes Buchwalter was not present in the room on May 17 when employees were talking about getting their cards back from the Union. Boldt testified that she does not know who prepared the letter to the Union, but that, relative to the letter to NLRB: A. In a meeting of Linda Gibson, Grant Driskill, Dave Gillem and myself we together decided on the wording of it. Linda Gibson wrote it down and I then typed it. Q. Was Mr. Buckwalter present during this meet- ing? A. Not to the best of my recollection. Q. Who principally came forth with the language that was used in this exhibit? A. I would have to say it was Grant Driskill and Dave Gillem, principally. Boldt said that, after she typed the letter, she took it to a park meeting the following Saturday, May 22, for signa- tures. Thereafter she posted the letter at the central station for signatures. Discussion Buchwalter did not testify on this subject. 2' G.C. Exh. 9. 25 including undermining the Union's majority status, and other unfair labor practices. Testimony of the employees is not consistent, and it is clear that all the facts were not spread on the record by witnesses for either side. However, there is no doubt but that Buchwalter's efforts were heavily influential in the actions surrounding the two group letters. Buchwalter called the meeting of May 17 only because of the Union's organizational campaign, and he succeeded in reversing the Union's earlier success. Buchwalter's reversal efforts could succeed only if the Union's interest was eliminated. It is found that Buchwal- ter at least was present when the fust group letter was suggested or talked about, and that he was an active participant in discussions about the letter before it was mailed. Driskill credibly testified that Buchwalter "thought it would be a good idea, but he did not know what the procedure was." The second letter was necessary only because the first letter was sent to the wrong custodian of the cards; the second was an outgrowth of the first. Buchwalter was not ignorant of the second letter, and it is certain that he fully supported it as an extension of his efforts relative to the fust one. Finally, there is no controversy about the fact that the letter to NLRB was posted for signatures approximately 1 week, near the timeclock in the central station. There could have been no such posting without Buchwalter's knowledge and consent. Buchwalter's direct participation in actions relative to the two letters, under the circumstances involved herein,25 constitutes a violation of Section 8(a)(1), (2),2'3 and (927 of the Act. E. Alleged Promise of Benefits Paragraph 19(c) of the complaint alleges that, on or about May 17, Respondent promised its employees economic benefits if they ceased to support the Union. Driskill testified that, at the group meeting on May 17, "some of the things that the employees had brought up before were brought up . . . such as pay differential and sick leave . . . ." He also said, "But, we were informed that we couldn't discuss anything at that time due to the union problems." Driskill further testified that Buchwalter brought with him to the meeting three or four wage scales of competitors and compared them with Respondent's wage scale. Buchwalter said "something to the effect that, with respect to the differential, it was not so great that it could not be overcome." James testified that employees at the meeting of May 17 made many complaints to Buchwalter about poor pay, benefits, and working conditions. Buchwalter refused to discuss specific complaints and said "with the union as a third party he could not negotiate." Buchwalter also said "he would not give the union any concessions that he would not give us as a group personally." Wages were mentioned several times and comparisons were made, but Buchwalter said "he could not discuss specifics." Bradley testified: A. He indicated after stating that he couldn't make any promises about any of this that he was willing to 1. T~ppan Kniffing Ind~ufries, lm., 201 NLRB 3 (1973); Lenope Manufacturing Co., 1% NLRB 931 (1972). 27 Trading Post, Inc., 219 NLRB 298 (1975). FEDERAL ALARM 527 discuss them, that we can talk about them, you know, but he couldn't make any promises at this time because of this being bound up by the Union. Discussion hat alled partially to discuss wages and working conditions, the fact that he solicited complaints and grievances, and the fact that he told the employees he would rather deal with them directly rather than through a third party are not in dispute. The only question is whether he promised to remedy the complaints and grievances, expressly or implicitly.28 In view of (a) the reason for the meeting, (b) Buchwal- ter's questioning the employees as to why they took the "extreme" measure of going to the Union and (c) Buchwalter's expressed desire to keep negotiations in the "family," certain testimony appears quite logical and is credited. Such testimony includes that of Driskill, who said Buchwalter told the employees that existing wage differen- tials were not so great that they could not be overcome; that of several employees who said Buchwalter stated that the Union's presence prevented free discussions; James' testimony that Buchwalter stated several times that "he could not give us specific details on the problems, but that the problems could be worked out; and James' testimony that Buchwalter 'said "if we decided to deal with him instead of the Union, then he would discuss it [wages]." The statements by Buchwalter unmistakably cany the message, "deal with me rather than through the Union, and I11 solve your problems." That is atromi violation of Section 8(a)(1) of the Act as a F. Alleged Removal of Keys and Posting of Notice Paragraph 17 of the complaint alleges that (a) on or about May 21, Respondent took from O'Brien his keys and code card and (b) on or about May 27 Respondent posted a notice near the timeclock, stating that O'Brien was not permitted on Respondent's property except during O'Brien's work hours, because of O'Brien's union activity. General Counsel's Exhibit 2, a letter from Adam to Buchwalter, establishes Buchwalter's knowledge on May 14 that O'Brien was a leading union advocate and plant union committee member. Buchwalter's opposition to O'Brien's union activity and his dislike of that activity are shown above, particularly in section B. The facts that O'Brien's kevs and code card were taken from him on or about May 51, no other employee's keys and code card were so taken, and the notice was posted as alleged31 are shown by testimony and are not in dispute. The fact that the keys and code card facilitated O'Brien's work, both as a serviceman and as an installer, is established by the credited testimony of O'Brien and Driskill. as Uarco lnror;--:*~.' 216 NLIUZ : :'Vf;. zs The various "benefits" are discussed below. Although some arc of little economic value, an of them contribute to a better work climate, or improve work eflkiency, or make work more wnvemient or safe. Some of the benefits are of direct economic value, such as a wage increase. O'Brien and Driskill given for removal of O'B Buchwalter did not trust In Resp testlfy on this subject, and Respondent introduced no testimony or evidence in support of that argument. O'Brien credibly testified that his honesty never had been ques- tioned by Respondent prior to this incident In view of the foregoing it is quite clear, and it is found, that Buchwalter removed O'Brien's keys and code card, and posted the notice described above, disparately and solely in retaliation for O'Brien's @on activity. The record supports this allegation. G. Alleged Committee Participation by Buchwalter on Company's Premiser t alleges in' substance that, since on or about May 17, Respondent has recognized and bargained with the Committee as representative of unit and does no morethan previously was accomplishe'd on an individual basis. /. Respondent admits in its answer to the amended complaint that the Committee is a labor organization within the meaning of Section 2(5) of the Act, and that the unit described above is an appropriate one. There is no dispute about the fact that the Committee came into existence May 17, as a result of the meeting held by Buchwalter earlier that day, attended by almost all unit employees. Credited testimony shows that, in the past, there have been meetings between Respondent's management and individual as well as group employees. However, those meetings were irregular, informal, and never with any person or persons acting for all unit employees. That situation is in sharp contrast to events after May 17. 4 C q ~ b e : I S a g Company, M N L I U 22.2 (19ioj; Ine., 221 NLRB 899 (1 975). 31 Admission in pleadings, G.C. Exh. l(k) and (m). 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Starting on that date, Buchwalter personally met with the unit's elected representatives on a regular schedule,32 discussed working conditions of a broad nature, took action on some complaints, deferred some and took some under advisement.33 The record shows no instance of individual bargaining or discussion after May 17. The general employee meeting of May 17 was called by Buchwalter solely because of employee complaints and employee union activity; there is nothing to show, and it appears most unlikely, that a meeting of that nature would have been held at any time, but for such complaints and activity. Buchwalter persuaded the employees to abandon the Union; he encouraged (and possibly instigated) letters showing such abandonment; and subsequently he refused to bargain with the Union as the representative of unit employees. Buchwalter recognized that the employees had been stirred to action as a group, and his answer was to recognize them and deal with them as a unit, but only upon his own terms, without interference by the Union. The record supports this allegation. I . Alleged Granting of Benefirs Paragraph 16 of the complaint alleges in substance that, during late May, Respondent (a) informed the Committee that it would give these employees benefits and improve ments, and @) granted benefits and improved working conditions. Benefits and working conditions are at the center of the controversy, as evidenced by majority employee interest in unionization on May 12 and 13 in order to improve those conditions; by Buchwalter's asking for complaints and grievances at the meeting of May 17; and by the employees' rejection of unionization after Buchwalter's promises to deal with the problems if they would negotiate directly with him. The fact that employees in the past had complained about poor working conditions and low wages is not in controversy. Included are complaints and suggestions about wages, office carpets and paint, identification cards for installers, safety hats, a telephone in the women's restroom, alarm systems for employees' houses, and the emergency call system. Respondent defends by asserting that the complaints and suggestions were without foundation, or were under consideration prior to any union activity, or were being acted on independently of any union activity. That defense is not convincing for several reasons. First, Buchwalter did not testify on this subject, nor did Respondent offer any proof of past or pending action on the items complained of. Second, those items, among others, precipitated this controversy. Third, those items were discussed in detail by Buchwalter and committee representatives at the several committee meetings after May 17. Respondent contends that no promise was made to settle the complaints or to provide benefits, but Buchwalter did not testify to support that contention, and the testimony of 32 Not rigidly adhered to, however. JJ These matters are discussed in detail infa 34 Respondent's contention that tbe grievances and complaints were Gillem, Driskill, and James credibly shows that the complaints and suggestions were discussed at length in committee meetings and that Buchwalter either stated what was being done about them, or that something could and would be done. Finally, Buchwalter's pretrial affidavit, partially read into the record by stipulation, constitutes an admission that the complaints and suggestions were discussed at commit- tee meetings; that action was taken by Respondent pursuant to those complaints and suggestions; and that some benefits were given that previously were not given, including new hardhats, new carpets, new paint, new identification badges, emergency call system, and restroom telephone. The affidavit states that carpeting and painting previously had been considered, but no proof of that was offered, and the fact remains that something definite was done only after committee meetings.% In view of the foregoing it is clear, and it is found that these allegations of the complaint were proved. J. Alleged Interrogation of June I Paragaph 19(d) of the complaint alleges that, on or about June 1, Respondent interrogated employees about their union activities and the union activities of fellow employees. DriskiU testified that he talked with Buchwalter on June 1 at a coffeeshop, at the latter's request He said, "Mr. Buchwalter asked me what my feelings were toward Mr. O'Brien." Driskill told Buchwalter that he thought O'Brien "was taking a lot of abuse" because of his union activity. Driskiu asked why Buchwalter was so upset with O'Brien and Buchwalter said it was because of the pressures "of the union situation" on his mother, who is Respondent's president. Discussion Buchwalter did not testif) on this subject. Driskill is credited. Buchwalter's questioning of Driskill must be placed in context in order to assess this allegation. Driskill's testimony following Buchwalter's first question shows that Buchwalter was questioning DriskiU about O'Brien's union activity. That questioning occurred after Buchwalter invited Driskill to talk with him, thus it was not a chance remark. The setting, Buchwalter's management position, and the nature of the questioning clearly establish an 8(a)(1) violation as alleged. K. Alleged 8(a)(5) Violations As discussed above, the Union had a majority on May 13, and thereafter requested that Respondent bargain with it. After that request was made, Respondent dissipated the Union's majority through various violations of the Act. minor or already taken &re of cfkctively is negated by the fact that those grievances and complainrs precipitated this controversy, an4 further, all of them were outstanding as of May 17. FEDERAL ALARM 529 Such actions clearly constitute the 8(a)(5) violation alleged in the complaint.35 Further, Respondent violated Section 8(a)(5) of the Act by its refusal to bargain with the Union upon request. Respondent argues that the Union negated the duty to bargain when it canceled the meeting scheduled for May 19. That argument has no merit, in view of Respondent's dissipation of the Union's majority on and before May 17, thereby making futile any bargaining thereafter. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section 111, above, occumng in connection with the operations of Respondent described in section I, 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(l), (2), (3), and (5) 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. General Counsel seeks a bargaining order, and Respon- dent argues that such an order is not appropriate. Among other contentions, Respondent argues that the union authorization cards were s i w d for the purpose of holding an election or otherwise were defective, and that Roch- ford's testimony shows the cards were distributed solely for the purpose of holding an election. Thus, Respondent contends, the Union never had a majority to dissipate. Extending this argument, Respondent contends that the employees rejected the Union of their own free will. Those arguments are not persuasive. The record shows beyond any reasonable doubt that Buchwalter held a meeting for the purpose of dissuading, and did dissuade, the employees from their union desires; that he then encouraged two attempts by employees to withdraw their signed cards; that he thereafter assisted in the organization of the Committee, provided it with company encouragement and support, met and negotiated with it, and dominated it; and that he committed several other violations of the Act in his efforts to keep the Union out of the plant. His violations were pervasive and successful. A bargaining order is appropriate under such circumstances,36 and will be recommended. Upon the basis of the foregoing fmdings of fact, and upon the entire record, I hereby make the following: I. Federal Alarm is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Federal Alarm Employees Committee and Comrnu- nications Workers of America, AFGCIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By coercively interrogating and threatening its employees, by promising its employees economic and other benefits if they ceased to support the Union, by encourag- ing its employees to deal with it through a committee rather than through the Union, and by soliciting grievances and promising to correct the same, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By encouraging the formation of, and by dominat- ing, assisting, interfering with, and contributing to the support of Federal Alarm Employees Committee and by encouraging and supporting preparation and circulation of group letters among its employees seeking return of their signed union authorization cards, Respondent has engaged in unfair labor practices in violation of Section 8(a)(2) and (1) of the Act. 5. By granting benefits and more favorable working conditions to its employees in order to discourage union activity, by removing an employee's keys and code card, and by notifying all its employees that one employee was not permitted on its premises except during his work hours, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 6. The following constitutes the appropriate bargaining unit at Respondent's place of business: AU inspectors, installers, senior installers, servicemen, senior servicemen, operators and shopmen employed by Federal Alann at 300 South Sycamore Street, Rialto, California, excluding office clerical, plant clerical, sales, professional, accounting, confidential, guards, and supervisors as defined in the Act. 7. By recognizing and bargaining with the Federal Alarm Employees' Committee; by encouraging and s u p porting preparation and circulation of group letters among its employees, seeking return of their signed union authorization cards; by dissipating through unfair labor practices the majority support of its employees previously held by the Union; and by refusing to bargain, upon request, with the Union as exclusive bargaining representa- tive of the employees in the above-described unit, Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 1qc) of the Act, I hereby issue the following recommended: 35 N.L.R.B. V. Gissel Packing Co., Inc., 395 US. 575 (1969). Trading Part, supra. 36 Gissel,supm. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent, Federal Alarm, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating and threatening its employ- ees; promising its employees economic and other benefits if they cease to support the Union; encouraging its employ- ees to deal with it through a committee of employees rather than through a union; and soliciting grievances and promising to correct the same in violation of Section 8(a)(l) of the Act. @) Dominating, assisting, contributing to the support of, and interfering with, Federal Alarm Employees Committee in violation of Section 8(a)(2) and (1) of the Act. Provided, however, that nothing in this Order shall require or authorize Respondent to vary or abandon any wage, hour, seniority or other benefit it has established for its employees as a result of negotiations with Federal Alarm Employees Committee. Provided, further, that nothing herein shall be construed as prohibiting its employees from forming, joining, or assisting any labor organization. (c) Discriminating against its employees in violation of Section 8(a)(3) and (1) of the Act by granting benefits and more favorable working conditions to its employees in order to discourage union activity; by removing employees' keys and code cards; and by notifying its employees that fellow employees are not permitted on its premises except during their work hours. (d) Recognizing and bargaining with the Federal Alarm Employees Committee as the representative of its employ- ees concerning wages, rates of pay, hours of employment, or any other terms and conditions of employment; encouraging and supporting preparation and ci6ulation of group letters among its employees, seeking return of employees' signed union authorization cards; dissipating through unfair labor practices the majority support of its employees held by the Union; and failing and refusing to bargain with Communications Workers of America, A F G CIO, as the exclusive bargaining representative of the employees in the following appropriate unit, in violation of Section 8(a)(5) and (1) of the Act: All inspectors, installers, senior installers, servicemen, senior servicemen, operators and shopmen employed by Federal Alarm at 300 South Sycamore Street, Rialto, California, excluding ofice clerical, plant clerical, sales, professional, accounting, confidential, guards, and supervisors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing its employees in exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action, which will effectuate the policies of the Act: (a) Withdraw and withhold recognition from, and completely disestablish, Federal Alarm Employees Com- mlttee, or any successor thereto, as the representative of its employees in the above-described unit, for the purpose of collective bargaining, including settlement of grievances. (b) Remove from its records, all copies of and references to any group letters signed by employees requesting return of their signed union authorization cards. (c) Upon request, meet and bargain with Communica- tions Workers of America, AFLXIO, as the exclusive bargaining representative of employees in the aforesaid appropriate unit, and after agreement is reached, reduce said agreement to writing for signature of the parties. (d) Post at its Rialto, California, place of business copies of the attached notice marked "Appendix."38 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or wvered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3' In the event no exceptions are filed as provided by Scc. 102.46 of the Rules and Regulations of the National Labor Relatiom Board, the fmdiings, conclusions, and recommended Order herein shall as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and bccome its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. a In the event that the Board's Order is enforced by a Judgment of a United States Court of AppeaL, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor ReIations Board." APPENDIX N o n a To EMPLOYEES ~ 0 s r e ~ BY ORDER OF 'IHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for wllective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE \NILL NOT interfere with, restrain, or Coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act by intervgating or threate~-g them; by proniirisg ccc- nomic and other benefits if they cease to support a union; by encouraging them to deal with us through a committee of employees rather than through a union; FEDERAL ALARM or by soliciting grievances and promising to correct the same. WE WILL NOT assist or contribute to the support of, dominate, or interfere with Federal Alarm Employees Committee. WE WILL NOT vary or abandon any wage, hour, seniority, or other benefits established for our employ- ees as a result of negotiations with Federal Alarm Employees Committee. WE WILL NOT recognize Federal Alam Employees Committee, or any successor thereto, as the representa- tive of our employees concerning wages, rates of pay, hours of employment, or any other terms and condi- tions of employment. WE WILL NOT discriminate against our employees in violation of Section S(aX3) and (1) of the National Labor Relations Act by granting benefits and more favorable working conditions to our employees in order to discourage union activity; by removing employees' keys and code cards; and by notifying our employees that fellow employees are not permitted on its premises except during their work hours. WE WILL NOT encourage and support preparation and circulation of group letters among our employees, seeking return of employees' signed union authoriza- tion cards; dissipate through unfair labor practices the majority support of our employees held by a union; or fail and refuse to bargain with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of our employees in the iollowing appropriate unit: All inspectors, installers, senior installers, servicemen, senior servicemen, operators and shopmen employed by Federal Alarm at 300 South Sycamore Street, Rialto, California, ex- cluding office clerical, plant clerical, sales, profes- sional, accounting, confidential, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the Act. WE WILL withdraw and withhold recognition from, and completely disestablish, Federal Alarm Employees Committee or any successor thereto, as the representa- tive of its employees in the above-described unit, for the purpose of collective bargaining, including settlement of grievances. WE WILL remove from our records all copies of and references to any group letters signed by employees requesting return of their signed union authorization cards. WE WILL, upon request, meet and bargain with Communications Workers of America AFL-CIO. as the exclusive bargaining representative bf employe& in the aforesaid appropriate unit, and after agreement is reached, reduce said agreement to writing for signature of the parties. FEDERAL ALARM