The Tappan Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Tappan Company and Stove, Furnace & Allied Appliance Workers' International Union of North America, AFL-CIO. Cases 26-CA-6985, 26-CA-6992, 26-CA-7417, 26-CA-7430, 26- CA-7846, and 26-RC-5249 January 14, 1981 DECISION, ORDER, AND DIRECTION OF FIFTH ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 16, 1980, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Re- spondent filed a reply 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 briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge as modified below. In Objection 11-4, in the representation case, Case 26-RC-5249, the Union alleges that Respon- dent interfered with the election by offering antiun- ion T-shirts to employees. The Administrative Law Judge found that Foreman Hicks' possession of the shirts while inspecting employees' work did not constitute objectionable conduct. We find merit in the Union's exceptions to this finding and shall set aside the election. The record shows that Respondent made avail- able to its supervisors "vote no" buttons and T- shirts to give to its employees during the union campaign. Foreman Hicks let it be known to the employees that he had the T-shirts by walking around with them over his arm while inspecting the work of the 18 employees in the press depart- ment. Hicks admitted that he stopped at most of the machines while displaying the antiunion T- shirts. He also testified that at one point he gave out all the T-shirts he was carrying but maintained that he gave shirts only to employees who had re- quested them. Shortly before the election Hicks ap- ' No exceptions were taken to the Administrative aw Judge's dismiss- al of the 8(a)(1) allegations. 2 The Charging Party has excepted to certain credibility findings made by the Administrative Las Judge It is the Board's established policy not to overruled an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry 4Wall Prod- ucts, Inc. 91 NLRB 544 (1950). enfd 188 F 2d 362 13d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. 254 NLRB No. 80 proached employee Batey while she was operating a machine in the press department. Hicks, who had a number of T-shirts draped over his arm, stood si- lently next to Batey's machine. Batey observed Hicks holding the shirts, but did not speak to him and continued working until he had left. The Administrative Law Judge noted that Hicks was responsible for inspecting the work of press department employees and that he made no men- tion of the shirts while standing by Batey's ma- chine. Finding that Hicks did not request or pres- sure Batey to accept an antiunion T-shirt, the Ad- ministrative Law Judge concluded that in the cir- cumstances Hicks' mere possession of the shirts was not objectionable. We disagree. In Pillowtex Corporation3 we found that the em- ployer engaged in a form of interrogation by pass- ing a box of antiunion buttons in front of employ- ees and placing buttons on employees' machines. We based this finding on the fact that the employ- er's conduct placed the employees in a position of declaring their preference through the acceptance or rejection of the buttons. Similarly, Foreman Hicks required employees in the press department to make an open choice by standing next to their machines with an armful of antiunion T-shirts. That Hicks offered the shirts to press department em- ployees is clear as evidenced by his acknowledg- ment that he presented the shirts so as to suggest their immediate availability and by his testimony that on one occasion half of the press department employees accepted T-shirts after he approached them. Neither Hicks' duty to inspect employees' work nor his silent display of the shirts alleviated the pressure placed on employees to disclose their preference. In light of the foregoing, we find that Hicks' offer of antiunion shirts to the 18 employees in the press department was coercive and tended to re- strain the free choice of the employees. According- ly, we shall set aside the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as to Cases 26-CA-6985, 6992, 7417, 7430, and 7846, and hereby orders that the amended consolidated com- plaint be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the election held on May 25, 1979, in Case 26-RC-5249 be, and the same hereby is, set aside. :' 234 NLRH 560 (1978). 656 THE TAPPAN COMPANY [Direction of Fifth Election4 omitted from publi- cation.] MEMBER PENELLO, dissenting: I disagree with my colleagues that the Board is justified in directing a fifth election in this case solely on the basis of a single and, in my opinion, noncoercive incident of employer misconduct. In Caron International, Inc.,5 we announced the following standard: "In resolving the question whether certain employer misconduct is de minimis with respect to affecting the results of an election, the Board takes into consideration the number of violations, their severity, the extent of dissemina- tion, the size of the unit, and other relevant fac- tors." 6 Here, the record establishes that, several days before the election, Foreman Hicks made his customary work inspection of the 18 press depart- ment employees. On that particular occasion he carried T-shirts over his arm. The shirts were printed with the slogan "Vote No," and the "No" portion was visible to the employees. Hicks made no reference to the shirts, and witness Batey, ap- parently without discomfiture, ignored his presence altogether by turning her back and continuing her work. In my opinion, the incident was unlikely to have a coercive impact upon the employees. The mere availability of antiunion propaganda is not objec- tionable unless the employees are placed under some pressure to accept it. 7 Hicks made his rounds in his usual fashion, stayed only a moment at each work station, and did not either verbally or phys- ically proffer the shirts to employees who did not ask for them. Moreover, the incident occurred only once and was confined to 18 employees of a worker complement of 422. Under these circum- stances, I do not believe the Employer so far over- stepped the bounds of permissible preelection cam- paigning that it interfered substantially with em- ployee free choice in the election.8 Accordingly, I would uphold the election con- ducted on May 25, 1979, and would certify the re- sults. 4 [Excelsior ftnote omitted from publication 5 246 NLRRB 1120 (1979) * Id 7 I observe in this context that in Pillowicx Corporation, 234 NLRB 560 (1978). upon shich my colleagues rely, the employer made an overt and unequivocal offer of antiunion buttons to each of its employees I can find no equivalent offer here See Dal-Tex Optical Cornpanyv. Inc., 137 NL.RH 1782, 1787 (1962) DECISION STATEMENT OF THE CASF THOMAS D. JOHNSTON, Administrative Law Judge: These consolidated cases were heard at Nashville, Ten- nessee, on February 19 and 20, 1980, pursuant to a first amended charge filed by the Stove, Furnace & Allied Appliance Workers' International Union of North Amer- ica, AFL-CIO (herein referred to as the Union), in Case 26-CA-6985 on December 13, 1977;1 a first amended charge filed by the Union, in Case 26-CA-6992 on Janu- ary 16, 1978;2 a charge filed by the Union in Case 26- CA-7417 on September 20, 1978; a first amended charge filed by the Union in Case 26-CA-7430 on October 20, 1978; 3 and a charge filed by the Union in Case 26-CA- 7846 on June 4, 1979; and a consolidated complaint issued on August 8, 1979. The consolidated complaint, which was amended on August 15, 1979, and again at the hearing, alleges that The Tappan Company (herein referred to as Respon- dent), violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (herein referred to as the Act). On April 18, 1979, Administrative Law Judge Irwin Kaplan approved an informal settlement agreement ex- ecuted by all the parties in Cases 26-CA-6985, 26-CA 6992, 26-CA-7417, and 26-CA-7430. That settlement agreement covered all of the allegations now contained in the amended consolidated complaint except for certain allegations 4 relating to alleged conduct which occurred subsequent to the approval of the settlement agreement and upon which the Regional Director for Region 26 relied in vacating and setting aside that settlement agree- ment. These post-settlement agreement allegations allege that Respondent violated Section 8(a)(1) of the Act by interrogating its employees concerning its employees' union membership, activities, and desires, and coerced its employees by suggesting that the employees' support of the Union represented a threat to Respondent: threatened its employees with adverse changes in working condi- tions if Respondent's employees selected the Union to represent them; and threatened its employees with dis- charge because of its employees' union membership, ac- tivities, and desires. Respondent in its answers dated Auqust 16 and 21. 1979, which were amended at the hearing, denies having violated the Act as alleged. It further avers it has fully complied with all the provisions of the settlement agree- ment and asserts that the General Counsel is therefore precluded from litigating those allegations contained in the amended consolidated complaint which are covered by the settlement agreement. The issues involved are whether Respondent violated Section 8(a)(l) of the Act by unlawfully interrogating, coercing, and threatening its employees concerning the Union; and whether a valid basis exists to warrant setting aside the settlement agreementi and, if so, whether Re- I he original charge In Case 26-CA-6985 was filed on Dtcmbnlher . 1977. * Ihe original charqe in Case 26 CA-992 wasl filed on I)ecemnber 13, 1977 :' he riginal charge ill Case 26 CA 7430) as filed cn Septembcr 28. 1978 t hesc are the allegations conlilmed in pars I(hd), Ittc. Iit) ii, and 22 s After hearing all the evidence pertaining Il those aillleglatlns c.I tairled in thle a.mendecd consolitlated conlplaint relied n h tilhe Regional ( 'stitn i i'di 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent further violated Section 8(a)(l) and (3) of the Act as alleged. An additional issue is whether objections to the conduct of the election in Case 26-RC-5249, dis- cussed infra, have merit to warrant setting aside the elec- tion results. The Regional Director for Region 26, by order dated October 26, 1979, which was in accordance with the Board's Decision and Direction issued on October 3, 1979, adopting the Regional Director's findings and rec- ommendations in his Report on Objections to Fourth Election, consolidated for hearing with the issues in- volved in the amended consolidated complaint the reso- lution of certain objections filed by the Union concern- ing the election held in Case 26-RC-5249 which the Union lost. That election was conducted on May 25, 1979,6 pursuant to a Direction of Election issued by the Regional Director for Region 26 on April 26, 1979, based on a petition filed on April 2, 1976. These objections are as follows: 2. The employer threatened its employees with reprisals for engaging in union activities or selecting a Union to represent them, contrary to the obliga- tion undertaken in the Notice to Employees and in the Settlement agreement, by the following con- duct: (A) On May 24, 1979, Foreman Toby Nichols told employee Kathy Clinard that things would get rough if the Union should "come in," and on the same day, Foreman Gary Hicks made substantially the same statement to employee Sam King. 11-4 Tappan foremen and managerial employees Gary Hicks, Betty Yates, Diann Miller, Toby Ni- chols and Ann Wooden offered company anti-union buttons and tee shirts to employees under the pre- tense that such offers without verbalized requests did not constitute requests to employees to accept such propoganda materials and did not constitute pressure upon employees to make declarations, by their actions, of anti-union animus. Upon the entire record in these cases and from my ob- servations of the witnesses, and after due considerations of the briefs filed by all the parties, I make the follow- ing: 7 FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a corporation with an office and place of business located at Springfield, Tennessee, is engaged in the business of the manufacture, nonretail sale, and distri- bution of electric ranges and associated products. During Director for Region 26 in vacating and setting aside the settlement agree- ment, I precluded the parties from litigating those allegations covered by the settlement agreement until such time and inlly if it was determined a basis existed to warrant vacating and setting aside the settlement agree- ment. * The Report on Objections to Fourth Election reflects, out of ap- proximately 422 eligible voters, 155 cast valid votes for, and 202 cast valid votes against, the Union, with I challenged ballot. 7 Unless otherwise indicated the findings are based on the pleadinlgs, admissions, stipulations, and undisputed evidence contained i the record, which I credit. the course of its operations it annually sold and shipped products, goods, and materials valued in excess of $50,000 from its Springfield facility directly to points lo- cated outside the State of Tennessee and it also annually purchased and received products, goods, and materials valued in excess of $50,000 at its Springfield facility di- rectly from points located outside the State of Tennessee. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Stove, Furnace & Allied Appliance Workers' Interna- tional Union of North America, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR I.ABOR PRACTICES A. Background Respondent operates a plant at Springfield, Tennessee, where it manufactures, sells, and distributes electric ranges and associated products. Included among its su- pervisory personnel are Personnel Manager Robert Lips- comb, Fabrication Foreman Gary Hicks, and Weld De- partment Foreman Michael Phillips.8 Respondent employs approximately 422 employees who were eligible to vote in a Board-conducted election held on May 25, 1979. The Union lost the election but filed objections. These proceedings are based on certain alleged unlaw- ful and objectionable conduct. B. Alleged Interrogation, Coercion, and Threats The General Counsel presented two witnesses regard- ing alleged unlawful conduct engaged in by Foremen Hicks and Phillips.9 On May 25, 1979, the day of the election, Kathy Clin- ard had a conversation with Foreman Phillips. This con- versation occurred after Clinard had voted, but while the polls were still open. Clinard,' ° who did not know how the conversaton got started, testified that the election was brought up and Foreman Phillips said it was going to get rough on everybody, that they would have to be by their machines at 6:30 and they could not take an extra few minutes on breaks or anything like that. She and Phillips then made a bet that if the Union got in he would buy her a steak supper and if the Union lost she would buy him a steak supper. She further stated that Phillips said if the Union got in everybody was going to get --- " and it did not matter if the Union got in she would get ------and if he took her out she would get ---. She just shook her head and did not say any- thing. According to Clinard she reported the conversation to the Union's third vice president, Henry O'Donnell, and s Both icks and Phillips are supervisors under the Act and they pre- viousl sered as foremenlll ill the press department " The cnversation herein discussed inv(ll ilng o(~rema l Phillips, as re- flected by the Report on Ohjectiions to Fourth lecltion, was no founld to colsritute objectionable colnduclt ' Cnard hist worked fir Respondent the I;later part of June 1979 'I 'lhe precise wotrd has been iomitled 658 THE TAPPAN COMPANY to Judy England, who was identified only as being active in the Union. However, it was not established when this occurred. Foreman Phillips acknowledged making the bet with Clinard, stating this occurred after she told him she thought the Union would be voted in and first offered four or five times to bet him. However, he denied making any of the other statements attributed to him by Clinard. I credit the testimony of Foreman Phillips, who I find was a more credible witness than former employee Clin- ard. Besides my observations of the witnesses in not crediting Clinard, I did not find her testimony persua- sive. Having credited Foreman Phillips, I find he did not unlawfully threaten Clinard with adverse changes in working conditions as alleged. 12 Samuel King, who was active in the Union, testified concerning three alleged cnversations he stated he had with Foreman Hicks. During the first conversation which he placed as occurring a week before the election, Hicks asked him why they were out for the Union and said the Union was hurting the Company because the Company could not expand. Under examination by the Union, King further stated that Hicks told him if the Union came in they would have to tighten up on the working people. Although King claimed he was positive all of these statements were made in this conversation, upon being confronted under cross-examination with an affidavit he had given to a Board agent, he was unable to explain why he had stated in his affidavit these statements had occurred in different conversations. '3 According to King, whose job was driving a tow motor, about a day or two later, Hicks informed him he was going to have to tighten up in his work and said they were going to have more operators in the press shop and he was going to have to get better at his work or he was going to have to write him up and eventually he would have to fire him. Hicks also said he knew King would file charges with the Labor Board' 4 and told him to go ahead and file them if he wanted to but said he had never fired a man that had come back on him. While under cross-examination, King first stated this conversation occurred about a week before the election and then said he was not sure if it was before the elec- tion; upon being confronted with his affidavit given to the Board agent, he testified it occurred after the elec- tion. King stated that the third conversation with Hicks oc- curred in May before the election. On that occasion he 12 The bet between Phillips and Clinard was not alleged to be unlili- ful or to constitute objectionable conduct and therefore no finding will be made as urged by the Union in its brief " King's affidavit reflects in a conversation with Foreman Hicks about 3 days before the election, Hicks said 'You think its rough now, if the union comes in then we will tighten up." while in another conversation about a eek befolre the elccion Hlicks said, "Tbec nion is hurting the company. rhe union was cosling the conipans money. And the compan couldn't expand." at Although King had been named as te recipient of a threal n the charge filed by the Union against Respondetl on June 4. 1979, in Case 26-CA-7846, the only charge filed on his behalf. which insolsed ai sus- pension, did not occur until July 2. 197., aind that charge as subsc- quently dismissed had been talking to his brother' 5 and had mentioned they ought to put "home sweet home" on the mat in front of the press. Foreman Hicks then called him over without his brother being present and asked him what he had against the Company. Upon replying nothing and asking why, Hicks said he must have pointed to the "vote yes" button King was wearing. Under examination by the Union, King stated that when Foreman Hicks pointed to his button Hicks made a statement about King naming the game and saying they would play it any way he wanted to. According to King, Hicks had made this statement to him several times when he was wearing a union button. 6 Under cross-examination, King first stated he thought the conversation occurred after the election but was not sure and then said it occurred a little before the election. Foreman Hicks denied talking to King about the Union and specifically denied making the statements at- tributed to him by King in these alleged conversations. He did acknowledge on one occasion, which he believed occurred before the election, that he had a ccnversation with Kinq, who worked under his supervision, about his production. He explained to King it might help King do his job by keeping a mental picture in mind about what parts were being run and who was going to be out of parts or need parts but denied there was any discussion of possible disciplinary action. I credit the testimony of Foreman Hicks, who I find was a more credible witness than King. Apart from my observation of the witnesses in discrediting King, his tes- timony was contradictory. Accordingly, I do not find Foreman Hicks unlawfully interrogated, coerced, or threatened King as alleged in the amended consolidated complaint. C. Other Conduct Covered by the Objections The Union presented two witnesses in support of Ob- jection 11-4. Edna Batey testified that 2 or 3 days before the elec- tion while she was working at her machine Anne Wooden,'" who is employed as a bookkeeper by Re- spondent, came to her and said, "Edna, let's stop this thing." When Wooden then attempted to pin a "no union button" i somewhere on the front of Batey's clothing, Batey responded by saying, "No," adding, "it would just get knocked off." Upon turning around to do her work, Batey stated she felt Wooden pin the button on the clothes on her back. According to Batey, Foreman Hicks was standing beside Wooden when this incident oc- curred, although she acknowledged she did not know which one came to her machine first. She acknowledged that, at the time Wooden was pinning the button on and afterwards, neither Wooden, Hicks, or herself said any- thing. After Wooden pinned the button on, Wooden and Hicks left, although she did not know where they went. Lis l hrother did riot testify ' King testified e ore a union hutton throughout the period prior o ll tle.lioli ' Although Woodenl. who did nont estify, as not included in the ap- proprlatc lil hll. i s ltiat a1 superilsor under tIle Acl '" litc! des rlhed Ihe hlln al 1 bhtillg 3 lIo 4 inches in 7lle 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Batey said she wore the button 4 or 5 hours while at work that day and her daughter removed it when she re- turned home after work.'9 Wooden, who keeps time for employees in Batey's de- partment, on occasion goes to Batey's machine for such reasons as taking numbers off the machine. Samuel King also testified that prior to the election he observed Wooden pin a "vote no" button on the clothes on Batey's back at which time Batey, who was working, made no protest. King further stated that at the time this occurred one of the supervisors, either Foreman Hicks or John Bloodworth, was standing there. King estimated that at the time he was 15 to 20 feet from Batey and the presses were running and it was very noisy. Foreman Hicks denied seeing Wooden pin a "vote no" button on Batey or seeing a button pinned on the clothes on Batey's back. He did acknowledge that prior to the election he himself had some "vote no" buttons which he said he gave to employees if they asked him for them. While I credit the testimony of Batey, who impressed me as being a more credible witness than Foreman Hicks,2 0 I do not find this incident constitutes objection- able conduct. Batey's own credited version shows it was another employee, Wooden, rather than Foreman Hicks, who spoke to her and then pinned the button on her without her making any protest except that the button would get knocked off when Wooden first attempted to pin it on the front of Batey's clothing. Under these cir- cumstances, Foreman Hicks' mere presence in the area or his failure to intervene was not sufficient to hold Re- spondent responsible for the conduct of its employee Wooden or to constitute objectionable conduct. Samuel King testified that about a week or two before the election he heard Foreman Hicks say "here" to Eliz- abeth James 2 ' as she was walking away. When Hicks hollered again, James turned around and walked back to- wards Hicks at which time Hicks bent his shoulder down and James took a "vote no" T-shirt off Hicks' shoulder. King, who stated he was about 2 feet behind Hicks at the time with James being about 10 to 15 feet in front of Hicks, denied hearing James ask Hicks for a T-shirt al- though he acknowledged he did not know whether she had requested one. Foreman Hicks, while stating he did not believe James asked for a T-shirt nor did he recall giving her one, denied giving anyone a T-shirt who did not ask. For reasons previously stated I credit Hicks rather than King regarding this incident. Edna Batey testified that on another occasion, which she thought occurred prior to the button incident al- though she was not certain, she was at her machine working when, upon turning around to put a part in the basket, she glanced up and observed Foreman Hicks '~ Her daughter, Reba Cohea, corroborated Batey's testimony about removing the button 21 Besides my ohservations of the witnesses in crediting Batey rather than Hicks, Hicks' testimony regarding this incident and another incident involving Batey, discussed infja, does nrot appear plausible when consid- ered in light of his other testimony regarding his distribution of hbuttons and T-shirts. 2 ' James did not testify standing at the edge of her basket.22 He had an armful of T-shirts draped over his arm and just stood there. Nei- ther of them said anything, whereupon she turned around and resumed work. When she started to put an- other part in her basket, she saw Hicks had left. She also testified the next time she put a part in the basket she ob- served Hicks standing at the other machines holding the T-shirts out on his arm. However, she denied seeing anyone accept a T-shirt from Hicks. Batey described these T-shirts Hicks had as being white with a round circle and a "no" in red on the part she could see. She further stated she has observed other employees wearing similar T-shirts containing the words "vote no" on them. Under cross-examination, however, Batey denied she saw where Hicks went after he left her machine and ac- knowledged she did not pay any attention to where he went. Foreman Hicks, who returned to work for the Compa- ny on March 30, 1979, testified that prior to the election, in addition to having some "vote no" buttons, he also had some "vote no" T-shirts provided by Respondent which he gave to employees if they requested them.23 He let the employees know he had them by walking around with the T-shirts over his arm while making his rounds of the approximately 18 employees working in the department, stopping at most of their machines. Hicks was unable to give an approximate date when he obtained these T-shirts, but stated on that occasion he was at Batey's machine examining her work when Batey asked him for a T-shirt. He was out of them at the time but told her he would get her one which he did.2 4 I credit Batey rather than Hicks for reasons previously given. Having credited Batey's testimony, which establishes that while conducting her work she turned and observed Foreman Hicks, who is responsible for inspecting her work, standing by her machine with some T-shirts con- taining the word "no" on them draped over his arm, whereupon she continued working and he left without even saying anything to her or mentioning the T-shirts, I am persuaded and find no basis exists for finding this in- cident constitutes objectionable conduct. Batey was in no way solicited, requested, or pressured by Hicks to accept one of the T-shirts and the mere possession by Hicks of the T-shirts without more, as here, cannot arguably be held to be objectionable conduct. D. Analysis and Conclusions The General Counsel contends that Respondent violat- ed Section 8(a)(l) of the Act by unlawfully interrogating, coercing, and threatening its employees concerning the Union thereby warranting vacating and setting aside the settlement agreement in Cases 26-CA-6985, 26-CA- 22 Batey acknowledged that Foreman Hicks would come around to her machine and inspect her wstork, although she could not remember swhether he checked her work that day 2: Ihc supervisors had been gi'en written instructions dated April 23. 197), by Persoinnel Manager Robert I.ipscotnib regarding their campaign- ing, although Hicks denied receisltig a copy h2 ;ales denied asking flicks for I-shirt or escn receiving one 660 THE TAPPAN COMPANY 6992, 26-CA-7417, and 26-CA-7430 in which cases Re- spondent is alleged to have violated Section 8(a)(1) and (3) of the Act. Respondent denies having violated the Act and asserts it has complied with the settlement agreement and that the General Counsel is precluded from litigating these allegations covered by its terms. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Settlement agreements may be set aside where subse- quent events have demonstrated that efforts at adjust- ment have failed to accomplish their purpose. The Wal- lace Corporation v. N.L.R.B., 323 U.S. 248, 254 (1944). Having found supra that Respondent did not unlawful- ly interrogate, coerce, and threaten its employees as al- leged in the amended consolidated complaint following the approval of the settlement agreement, I find Respon- dent did not violate Section 8(a)(1) of the Act regarding these allegations. Further, I find, contrary to the conten- tion of the General Counsel, that no basis has been shown or exists to warrant setting aside the settlement agreement and those allegations contained in the amend- ed consolidated complaint covered by the terms of the settlement agreement are hereby' precluded from being litigated. 2 5 E. The Ohjections to the Election The Union's Objection 2(A) is based on the same con- duct alleged in paragraphs 10(d) and 10(e) of the amend- ed consolidated complaint. Having found Respondent did not unlawfully threaten its employees as alleged in those paragraphs, Objection 2(A) is without merit and is hereby overruled. Further, the Union's Objection 11-4, 2' Having found no basis exists for vacating and setting aside the et- tlement agreement the record is hereby closed for those reasons discussed supra, also lacks merit and is hereby overruled. CONCLUSIONS OF LAW i. The Tappan Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Stove, Furnace & Allied Appliance Workers' Inter- national Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(1) of the Act as alleged in the amended consolidated complaint. 26 4. No basis exists to warrant vacating and setting aside the settlement agreement in Cases 26-CA-6985. 26-CA- 6992, 26-CA-7417, and 26-CA-7430. 5. The Union's Objections 2(A) and 11-4 are without or lack merit and are overruled and Respondent has not interfered with or illegally affected the results of the Board election held on May 25, 1979. 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: ORDER 2 7 It is hereby ordered that the amended consolidated complaint be, and it hereby is, dismissed in its entirety. IT IS FURItHER ORDERED that Case 26-RC-5249 be re- manded to the Regional Director for Region 26 for the purpose of certifying the results of the election held on May 25, 1979. 2i This Conclusion of I aw does not cover those allegations cosered hy Ihe setllemenl agreement, nne of which was litigalted 27 In the cclt no exceptions are filed as pros idcd h Sec 12 46 of the R s anld Regulatl.rls of the Natallal l.ahor Relations Board, the firldlgs, coinclusios. and recommended Order herein shall, as prosided in Sec 102 48 lTf he Rules and Regulations. be adopted hb the Board and hecome its lindilgs. cnclusions, and Order. and all hlecions thereto shall he deemed aived for all purposes 661