Wisconsin Porcelain Company, Inc.

WISCONSIN PROCELAIN CO. 349 NLRB No. 17 151 Wisconsin Porcelain Company, Inc.1 and District Lodge No. 121, International Association of Ma- chinists & Aerospace Workers, AFL–CIO. Case 30–CA–14582 January 31, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On April 9, 2001, Administrative Law Judge Robert M. Schwarzbart issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions in part, to reverse them in part, and to adopt the recom- mended Order as modified below.3 This case involves allegations that the Respondent vio- lated Section 8(a)(1) of the Act by polling employees in January 1999 concerning their support for the incumbent Union, by making statements about conducting similar polls in the future, and by interrogating employees in February 2000 without affording the safeguards estab- lished in Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). The judge found merit in all the complaint allegations. For the rea- sons set forth below, we affirm several of the judge’s unfair labor practice findings, reverse one, and find it unnecessary to pass on certain others. The Union has represented the Respondent’s produc- tion and maintenance employees since the 1950s. The Respondent and the Union were parties to a series of collective-bargaining agreements, including an agree- ment that was signed on January 30, 1998, and was ret- roactively effective from October 1, 1997, to March 31, 1999. At the time of the poll, the unit consisted of 117 employees. 1 The Respondent has requested that the Board amend the caption to reflect the Respondent’s March 2001 name change to “WP Liquidating Company.” We leave that issue to compliance. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We shall modify the judge’s conclusions of law and recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language. I. THE JANUARY 1999 POLL We agree with the judge’s conclusion that the Respon- dent violated Section 8(a)(1) by announcing and con- ducting a poll among its employees in January 1999 con- cerning whether the employees wanted the Union to con- tinue representing them. An employer may poll its employees concerning their support for the incumbent union only if the employer has a good-faith doubt, based on objective considerations, as to the Union’s majority status. Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). In Allentown Mack, the Court clarified that the Board must interpret “doubt” to mean uncertainty, rather than disbelief. Id. at 367.4 The burden is on the employer to prove good-faith reasonable uncertainty. See generally id. As explained below, even assuming we were to con- sider all of the evidence proffered by the Respondent— including evidence the judge declined to admit or con- sider—we would find the evidence as a whole insuffi- cient to show a good-faith reasonable uncertainty as to the Union’s majority status. First, the Respondent introduced evidence that about nine individual employees had expressed dissatisfaction with the Union. The Respondent also introduced evi- dence that an employee had claimed in early 1998 that the Union had coerced three Spanish-speaking employ- ees into joining the Union and lied to one of them about his right to withdraw from the Union under a contractual “escape” clause. The judge found that the above evi- dence, which the Respondent never mentioned at the time of the poll or during the investigation of the charge, was a “rationalization after the fact.”5 The judge also analyzed the evidence on its merits and found it to be insufficient to satisfy the Respondent’s burden. Even assuming that the above evidence was not a “ra- tionalization after the fact,” we agree with the judge that it does not support a finding of a good-faith reasonable uncertainty as to the Union’s continuing majority status. The reports of alleged union coercion and the employee statements of disaffection, when combined, covered only about 11 percent of the unit, and the employees making the statements did not purport to speak for larger groups of employees. Contrast, Allentown Mack, supra at 362 4 We observe that in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), which addressed the standard for withdrawing recognition from a union, the Board “le[ft] to a later case whether the current good- faith doubt (uncertainty) standard for polling should be changed.” Id. at 723. No party here argues that the polling standard should be changed. 5 At the time of the poll, the only justification the Respondent gave to the Union and employees for conducting the poll was the “small number” of employees who were union members. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152 (an employee told management that the entire night shift did not support the union, and a shop steward told man- agement that the union would lose if a vote was taken).6 Second, the Respondent contends that the judge erred by failing to give any weight to evidence that only a mi- nority of the unit employees were union members and that dues checkoff had declined from 43 percent in the fall of 1997 to 28 percent at the time of the poll. Re- cently, two courts have stated that, in light of Allentown Mack, union membership and dues-checkoff evidence can, “in some circumstances,” be probative “to some degree” of good-faith reasonable uncertainty. Tri-State Health Service, Inc. v. NLRB, 374 F.3d 347, 354–355 (5th Cir. 2004) (internal citations omitted); McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1005–1007 (D.C. Cir. 2003). Both courts emphasized that the weight to be given to such evidence is dependent on the circumstances of each case. Tri-State Health Service, 374 F.3d at 355; McDonald Partners, 331 F.3d at 1007. In Tri-State, dues checkoff fell from 11 to 0 in a unit of 30–40 employees. In McDonald, dues checkoff fell from nearly all the em- ployees to 0 in a unit of 100 employees. By contrast, the decline in dues checkoff here, taken in context, was not as drastic or acute as in the above-cited cases. At the time of the poll, a substantial percentage of the unit (28 percent) still authorized dues checkoff. Fur- ther, the number of union members and dues payers had been less than 50 percent for many years, but the parties still enjoyed a long and stable collective-bargaining his- tory that included successive contracts dating back to at least the 1970s. As the court acknowledged in McDon- ald Partners, “[A] union may enjoy majority support even if less than a majority of employees maintain union membership or authorize their employer to deduct union dues from their paychecks.” 331 F.3d at 1006. Indeed, the Respondent and the Union entered into a collective- bargaining agreement in January 1998. Assuming that a drastic dropoff in dues-checkoff authorizations between that date and the Respondent’s poll would be “probative 6 Moreover, the Respondent’s president, Scott Rose, who made the decision to conduct the poll, testified that he did not believe the reports of coercion. Rose testified that “I hardly believed that” and that “I discount a lot of things that are told to me that are second or third- hand.” Rose’s testimony undercuts the Respondent’s argument that the reports of coercion led the Respondent to be uncertain of the Union’s majority status. Cf. RTP Co., 334 NLRB 466 (2001) (“In analyzing the adequacy of an employer’s defense to a withdrawal of recognition allegation, the Board will only examine factors ‘actually relied on’ by the employer. Conduct of which the employer may have been aware, but on which the employer ‘did not base’ its decision to withdraw rec- ognition from the Union, is of ‘no legal significance.’”) (internal cita- tions omitted), enfd. 315 F.3d 951 (8th Cir. 2003), cert. denied 540 U.S. 811 (2003). to some degree” of good-faith uncertainty,7 the dropoff here—about 15 percent—was not sufficiently drastic.8 Thus, under these circumstances, we find that the union membership and dues-checkoff evidence cited by the Respondent is entitled to relatively little weight. Third, the Respondent argues that the judge erred in refusing to admit evidence that was known to the Re- spondent before the January 1998 execution of the 1997– 1999 collective-bargaining agreement. However, even if we were to consider evidence that predated the agree- ment, it would not affect our conclusion that the Respon- dent failed to establish good-faith reasonable uncertainty. Based on the Respondent’s offers of proof, most of the rejected evidence involved reports from employees that union representatives told employees that they should join the Union, because without a union the Respondent could cut benefits. This testimony, even if true, does not establish that the employees who allegedly reported those statements no longer wanted the Union to represent them. The Respondent also sought to introduce evidence that only a minority of employees were union members from 1978–1997. However, this evidence would be cu- mulative because there is no dispute that only a minority of the unit employees were union members at the time of the poll. In sum, having considered all of the Respondent’s proffered evidence, we agree with the judge’s conclusion that the Respondent failed to show a good-faith reason- able uncertainty as to the Union’s majority status. Ac- cordingly, the Respondent violated Section 8(a)(1) by announcing and conducting the January 1999 poll. II. THE RESPONDENT’S ALLEGED STATEMENTS ABOUT FUTURE POLLING We agree with the judge, for the reasons stated in his decision, that the Respondent, through President and CEO Scott Rose, violated Section 8(a)(1) by indicating to employees on March 11, 1999, that the Respondent would conduct future polls at will.9 7 See Tri-State, supra at 354; McDonald, supra at 1007. 8 Moreover, during the same time period, the size of the unit de- clined from 151 to 117. The record reveals no basis for assuming that the entire decline in dues checkoff was attributable to disaffection from the Union, rather than some portion being attributable to the departure of employees who had authorized dues checkoff. See Tri-State, supra at 355 (“In considering the weight accorded this evidence, we are mind- ful that some of the decline in dues checkoffs is the product of em- ployee terminations.”). 9 Our dissenting colleague erroneously finds that Rose simply de- fended his past actions and expressed his personal belief that the Janu- ary 1999 poll was lawful. In fact, the record clearly shows that Rose went further and stated that because “he represented the employees,” he preferred to have the employees “take those types of votes in the fu- ture” to see if they still supported the Union. When the Union ex- pressed its objection to the poll, Rose replied that he would take it again WISCONSIN PROCELAIN CO. 153 However, we reverse the judge’s finding that the Re- spondent violated Section 8(a)(1) by making similar statements on March 5, 1999. The judge found that on March 5, Rose told the Union that he had not done any- thing wrong by conducting the poll; that if he had to do it if he felt he had to. As the judge recognized, Rose stated in effect that he was free to conduct future polls at will. However, as set forth above, the law permits an employer to poll its union-represented employees only if the employer has a good-faith reasonable uncertainty as to the union’s majority status. Thus, Rose’s statements amounted to a threat to poll employees under circumstances not permitted by the law. Be- cause threats are expressly excluded from the scope of Sec. 8(c), our dissenting colleague’s reliance on that section of the Act is misplaced. We also disagree with our colleague’s finding that any interference with employee rights resulting from Rose’s statements was isolated and de minimis. Our colleague notes that the statements were made during a bargaining session. However, the statements were not bargaining proposals, but declarations that Rose would take polls in the future if, in his view, it was necessary. Otherwise unlawful statements are not immune from the proscriptions of the Act simply because they were made during a bargaining session. Contrary to our colleague’s suggestion, we do not “lightly infer” a threat here. We agree that an important policy of the Act is to foster uninhibited debate in negotiations. As explained above, however, when the Respondent’s statements are considered in context, it is clear that the Respondent went well beyond “debate” by threatening to take addi- tional polls at will, without the good-faith doubt required by law. Ac- cordingly, we disagree with our colleague’s characterization of the Respondent’s statements as part of the “usual give-and-take” of bar- gaining. Accordingly, we agree with the judge that the Respondent violated Sec. 8(a)(1) on March 11 by threatening to conduct employee polls at will in the future. Member Schaumber finds that, under the circumstances of this case, any interference with employee rights arising from Rose’s March 11 statements was isolated and de minimis. He notes that Rose made the statements in the context of bargaining, in response to the Union’s proposal to withdraw the unfair labor practice charge regarding the January 1999 poll in exchange for a union-security clause. Moreover, Member Schaumber finds that the context of the conversation makes clear that Rose was merely defending his actions in conducting the poll, at a time when the judge had not yet concluded that any of the Respon- dent’s actions were unlawful; in fact, the General Counsel did not issue the original complaint until more than 3 months after the March 11 bargaining session. In expressing his personal belief that his conduct was lawful, without making any threats or promises to employees, Rose did not transgress the free speech boundaries of Sec. 8(c) of the Act. Contrary to his colleagues’ description, Member Schaumber is not suggesting that unlawful statements are “immune from the proscrip- tions of the Act simply because they were made during a bargaining session.” Rather, Member Schaumber emphasizes the Board’s duty to consider the entire context of events before labeling certain statements as unlawful threats. The Board and the Supreme Court have recognized that Federal labor policy favors “uninhibited, robust, and wide-open debate in labor disputes.” Franzia Bros. Winery, 290 NLRB 927, 932 (1988) (quoting Letter Carriers v. Austin, 418 U.S. 264, 273 (1974)). Giving this important policy its due consideration, Member Schaumber would not lightly infer threats from statements made during the usual give-and-take of labor-management negotiations. Accordingly, he disagrees with the majority’s and the judge’s characterization of Rose’s dialogue as stating, “in effect that he was free to conduct future polls at will.” For these reasons, Member Schaumber finds that Rose’s state- ments did not violate Sec. 8(a)(1). all over again, he would; and that in his “future life,” if he ever faced the same situation again, he would conduct another poll. The record shows, however, that Rose made these statements on March 11, not March 5. There is no evidence that the Respondent either stated or im- plied on March 5 that it would conduct polls at will in the future. Accordingly, we dismiss the complaint insofar as it alleges that the Respondent violated Section 8(a)(1) on March 5. III. THE FEBRUARY 2000 EMPLOYEE INTERVIEWS The judge found that the Respondent violated Section 8(a)(1) by coercively interrogating employees during a series of February 2000 interviews. We adopt the judge’s finding that the Respondent co- ercively interrogated the employees in the first group interview on February 2, 2000, by failing to give the as- surances required by Johnnie’s Poultry, supra.10 We also adopt the judge’s finding that the Respondent coercively interrogated employee Susan Reyes on Febru- ary 28, 2000, by asking about her participation in union membership drives other than the 1997 drive. The Re- spondent contends that the Union engaged in coercive tactics during its 1997 membership drive, and that em- ployee reports of alleged coercion contributed to the Re- spondent’s good-faith uncertainty of majority status at the time of the 1999 poll. The Respondent argues that it was entitled to question employees about the Union’s conduct in order to prepare its defense against the allega- tion that the poll was unlawful. In questioning Reyes, however, the Respondent did not limit its questions to the 1997 membership drive, but asked whether Reyes had participated in any other union drives and what the na- ture of her participation had been. The Respondent does not contend that it had any evidence of improper union conduct during other membership drives, much less that it relied on any such evidence in deciding to conduct the January 1999 poll. By questioning Reyes about her par- ticipation in other union drives, the Respondent “ex- ceed[ed] the necessities of the legitimate purpose by pry- ing into other union matters.” Johnnie’s Poultry, supra at 775. Accordingly, the Respondent coercively interro- gated Reyes in violation of Section 8(a)(1).11 10 Member Schaumber finds it unnecessary to pass on this finding because it would be cumulative and would not affect the remedy. 11 We find it unnecessary to pass on the judge’s additional, inde- pendent reasons for finding that the Respondent unlawfully interrogated employees during the February 2 group interview and the Reyes inter- view. We also find it unnecessary to pass on the judge’s findings that the Respondent violated Sec. 8(a)(1) during the interviews of employ- ees Michael Andreas, David Schwark, and Michael Stohl. These addi- tional findings would be cumulative and would not affect the remedy. The United States Court of Appeals for the Seventh Circuit, in which this case arose, has declined to apply a “per se” rule in Johnnie’s Poul- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154 AMENDED CONCLUSIONS OF LAW Delete the judge’s Conclusions of Law 3(c) and (d) and substitute the following. “(c) By coercively interrogating its employees con- cerning union activities.” ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Wiscon- sin Porcelain Company, Inc., Sun Prairie, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(c) and reletter the subsequent paragraphs. 2. Substitute the following for relettered paragraphs 1(c) and (d). “(c) Coercively interrogating its employees concerning union activities. “(d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” try cases. The court has stated that it will examine the “totality of the circumstances” to determine whether an interview is coercive, “includ- ing the purpose of the interview, the entire statement made to the em- ployee, and the scope of the questioning.” A & R Transport, Inc. v. NLRB, 601 F.2d 311, 313 (7th Cir. 1979). Other relevant factors in- clude the identity of the questioner, and the place and method of the interrogation. See Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1187 (7th Cir. 1993). The Reyes interview and the first February 2 group interview were unlawful even under a totality-of-the- circumstances standard. Neither violation depends on a “per se” appli- cation of Johnnie’s Poultry. Reyes was brought to the Respondent’s conference room by Rose, the company president. Rose questioned Reyes for 15 minutes in the presence of another manager. Rose asked Reyes to describe her per- sonal participation in union drives, including later drives that had no relevance to the Respondent’s defense to the polling charge. Although Reyes was told that the questioning was voluntary and that there would be no reprisals, we find that the interview was nevertheless coercive, given its setting, the identity of the questioners, and the broad and unjustified scope of the information sought. With respect to the February 2 group interview, the employees who participated in that interview were told by their supervisors to meet with the Respondent’s attorney in Rose’s office. Another manager was present for the meeting. According to the credited testimony, the em- ployees were not given any assurances that the meeting was voluntary or that there would be no benefits or reprisals. Thus, this is not a case in which some assurances were given, but did not conform strictly to the Johnnie’s Poultry requirements. In light of the circumstances and the Respondent’s failure to give any assurances, we find the interview coercive under the Seventh Circuit standard. 3. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT undermine District Lodge No. 121, In- ternational Association of Machinists and Aerospace Workers, AFL–CIO as the duly-recognized bargaining representative of certain of our employees by announcing and then conducting polls among you concerning whether you desire to be represented by the Union when we do not have a good-faith doubt of the Union’s major- ity status. WE WILL NOT threaten you that we will conduct such polls whenever we want in the future without providing assurances that we will do so only if we should then have sufficient objective reasons to sustain a good-faith doubt of the Union’s majority status. WE WILL NOT coercively interrogate our employees about union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above. WISCONSIN PORCELAIN COMPANY, INC. Nicole Hoover Cook, Esq., for the General Counsel. Russ R. Mueller, Esq., of Milwaukee, Wisconsin, for the Re- spondent. Joe Cooper, Grand Lodge Representative, of Westchester, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge. This case was tried in Madison, Wisconsin, on an amended com- plaint issued pursuant to charges filed by District Lodge No. 121, International Association of Machinists and Aerospace WISCONSIN PROCELAIN CO. 155 Workers, AFL–CIO (the Union).1 The complaint alleges that Wisconsin Porcelain Company, Inc. (the Respondent), respec- tively violated Section 8(a)(1) of the National Labor Relations Act (the Act) by announcing and conducting its own election to determine if its bargaining unit employees wanted the Union to continue to be their collective-bargaining representative when it did not have sufficient objective considerations to support a reasonable good-faith doubt as to the Union’s majority status; by informing its unit employees during the contract negotiating sessions following the Union’s success at its aforesaid election, that it would conduct further polling of its employees represen- tational interests at will, without stated regard to having requi- site good-faith reasons to doubt the Union’s majority status; by coercively interrogating its employees, either individually or in groups, concerning unfair labor practices while preparing for the hearing in this matter, without providing such employees the assurances required by law; and by exceeding the scope of permissible questioning during such interrogations. In sum, in addition to the allegations of unlawful interrogation, the Gen- eral Counsel and the Union contend that the Respondent con- ducted the January 27 election, not because of a good-faith doubt of the Union’s majority status, but simply “to get rid of the Union.” These parties assert that the Respondent’s state- ments during postelection negotiating sessions of its intention to conduct further polling at will, and its other antiunion re- marks at the time, further illustrate this determination. The Respondent, in the absence of contractual union secu- rity, contends that, because a majority of unit employees had not joined or paid dues to the Union, because of employee ex- pressions of disaffection with the Union and for other reasons, by the time it conducted the election it long had had objective considerations sufficient to support a reasonable good-faith doubt as to the Union’s majority status. It, therefore, had been legally justified in conducting the election. The Respondent denies having declared an intention to conduct future such elec- tions at will; asserts that it gave the appropriate assurances to all employees interviewed while it prepared for hearing; and that the complaint allegation concerning one such alleged inter- rogation is barred by the limitations period of Section 10(b) of the Act. In its timely filed answer, the Respondent denies the commission of unfair labor practices. All parties were given full opportunity to introduce relevant evidence, to examine and cross-examine witnesses and to file briefs. Briefs filed by the General Counsel and the Respondent, have been carefully considered. On the entire record, including my observation of the demeanor of the witnesses, I make the following 1 The relevant docket entries are as follows: The original and first amended charges were filed on January 25, 1999, and February 9, 2000, respectively. The initial complaint issued on June 15, 1999, and the amended complaint, issued February 15, 2000, was further amended at the hearing, which was held from February 29 through March 3, 2000. FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, with an office and place of business in Sun Prairie, Wisconsin, is engaged in the manufac- ture, sale, and distribution of porcelain insulators and related products. During the calendar year ending December 31, 1998, the Respondent, in conducting its business operations, pur- chased and received products, goods, and services at its Sun Prairie facilities valued in excess of $50,000 directly from sup- pliers located outside the State of Wisconsin and sold and shipped products valued in excess of $50,000 directly from its Sun Prairie facility to customers located outside the State of Wisconsin. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Respondent’s Polling of Its Employees—Facts 1. Background The Respondent is engaged at its two Sun Prairie, Wisconsin plants in the manufacture and distribution of porcelain insulat- ing products for the appliance industry and ceramic tumbling media principally used industrially as an abrasive for finishing metalware. During the relevant timeframe, the Respondent’s president and chief executive officer (CEO) was Scott A. Rose. Mike Braun was human resources administrator; and Russ R. Mueller, the Respondent’s attorney. For more than 25 years, the Union has been the duly- recognized bargaining representative for the following unit of the Respondent’s employees: All production and maintenance employees employed by the Respondent at its Sun Prairie, Wisconsin facility; excluding office and administrative employees, managerial employees, guards and supervisors as defined in the Act. The Respondent and the Union have been parties to a suc- cession of collective-bargaining agreements, the current con- tract being effective from April 1, 1999,2 to February 1, 2002. However, not since 1974 have any of these labor agreements, including the present contract, provided for an agency shop requiring that all bargaining unit employees, as a condition of continued employment, pay dues to the Union. The agreements did provide for maintenance of membership, which mandated that each unit employee who did become a union member would be required to remain so as a condition of employment. Dan Hilbert and Rick Bulman were the union business repre- sentatives who serviced the collective-bargaining agreement with the Respondent. Hilbert also served as the Union’s spokesman during contract negotiations. The collective-bargaining agreement between the Respon- dent and the Union that immediately preceded the current col- lective-bargaining agreement was signed on January 30, 1998, to be retroactively effective from October 1, 1997, to March 31, 2 All dates hereinafter are within 1999, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156 1999 (the 1997 contract). The events considered herein com- menced as the 1997 contract approached expiration. 2. The January 21 meeting/announcement Rick Bulman3 testified that Mike Braun, the Respondent’s human resources administrator, invited him by telephone to attend a meeting that the Respondent was going to hold on premises with its employees on January 21, at 11:30 a.m. When Bulman arrived for the meeting, Company President Scott A. Rose, Braun, and most of supervision were there as were about 115 production, maintenance, and office employees. Rose, who did all the talking, began by telling the group that the Com- pany’s finances were in bad shape, that it had been losing money, and that it had been considering selling one of their plants. Bulman couldn’t remember if the Respondent was thinking of selling plant 1 or plant 2.4 Rose complained that employees had been asking for early breaks, had been taking extended breaks, and had been washing up before quitting time and before breaks. Towards the end of the 40-minute meeting, Rose announced that he was going to conduct an election on January 27 to see if the employees still wanted the International Association of Machinists, District 121, to represent them. Bulman interjected that he thought that this was an illegal act; that the National Labor Relations Board (the Board) should be involved in such an election. Rose replied that the Board did not have to be in- volved. Bulman repeated that he did not think that the election would be legal. Rose, in turn, reiterated that he was doing this just so he could find out if the employees wanted I.A.M., Dis- trict 121, to represent them. Rose encouraged the employees there to vote, but did not make a specific statement about there being no reprisals whether or not the people voted. Rose de- clared that he was going to have a certified public accountant count the votes; that there would be an employees list and that the employees’ names would be checked off when they were given their ballots. Rose did not say what the results of this election would mean. Rose asked if Bulman wanted to be at the election or did the Union just want an employee to check off the employees’ names. Bulman replied that he did not know. Bulman testified that as he, Rose, and Braun were leaving together after the meeting, Rose told him that he was taking this election poll “for his own personal interest in seeing whether the employees still wanted the Union to represent them.” Bul- man again stated to Rose that he thought that the Board should be involved in this. Nothing more was then said about the poll and Braun and Rose showed Bulman around one of the plants. Bulman related that on January 25, he faxed his written rec- ollection of what he and Rose had said about the election and its lawfulness at the January 21 meeting to Union Grand Lodge Representative Joe Cooper “who handled all of the Union’s charges before the National Labor Relations Board.” The memorandum to Cooper noted that, to Bulman’s knowledge, no employee had asked for this election. Bulman also reported the 3 Bulman served as an organizer and business representative for the Union from May 1997 to April 1999. 4 The Respondent’s two plants were located across the street from each other. Respondent’s forthcoming election to Business Representative Dan Hilbert. Rose’s account of the January 21 meeting did not contradict that of Bulman. Although Rose, during the hearing, testified to a variety of factors that had led him to have his doubts about the Union’s majority status at the time, which will be consid- ered below, the only reason he gave at that session for announc- ing the poll, as contained in his prepared notes for that gather- ing, was “the small number of employees that have joined the Union.” Rose, likewise, did not communicate to Bulman any additional reasons for taking the poll during their January 21 discussion. Later on January 21, Braun sent Bulman the following letter: As a follow-up to our employee meeting this morning, which you attended, and the announced employee election regarding union representation, enclosed is a copy of the posted notice regarding the election and a copy of the posted ballot to be used during the election. Please respond to me regarding Scott Rose’s invitation for your help as an observer during the polling time of the election. If you would prefer to have an employee union steward in this capacity, that is also acceptable to the Company. If you have any questions, feel free to contact me. The enclosed copy of the assertedly posted election notice was presented as a January 20 memorandum to “Plant Employ- ees” from Braun “Re: Election/Representation by the Union.” The employees were advised that, “[a]n election is being held to determine if a majority of employees desire the Union to represent them for collective-bargaining purposes.” Below this, the notice specified that eligible voters included all employees covered under 1.1 of the labor agreement, which set forth the above-described bargaining unit. The rest of the election notice provided: The election details are as follows: DATE: Wednesday, January 27, 1999 PLACE: Plant 2 breakroom TIME: 9:30 am–12:00 PM. Employees will be released from work to vote by in- structions given over the Public Address system. Be pre- pared to provide picture ID if requested. Your participation is important to obtain a representa- tive result. Federal law prohibits any reprisals for participation or non-participation in this election. A SAMPLE BALLOT IS POSTED FOR YOUR REVIEW Official Secret Ballot For certain employees of Wisconsin Porcelain Company, Inc. Do you wish to be represented for purposes of collective bar- gaining/ by— WISCONSIN PROCELAIN CO. 157 Local 121 of the International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge No. 1212 MARK AN “X” IN THE BY YOUR CHOICE The ballot then provided side-by-side “YES” and “NO” boxes for the employees to mark their choices. Employees were cautioned on the ballot not to sign it. The Respondent also attempted adherence to the timing of Board-conducted elections by scheduling the vote within the 30-day window of opportunity provided for the filing of peti- tions for representation elections during the term of an effective collective-bargaining agreement. That period begins 90 days before the effective collective-bargaining agreement’s expira- tion date and ends 60 days before such expiration.5 However, there is no evidence that the Respondent furnished the Union with an advance copy of a list of eligible voters and their cur- rent home addresses as required in Board-conducted elections under Excelsior Underwear, Inc.6 3. The January 26 union/company meeting Synthesizing the testimony of Rose and Hilbert, on January 26, the day before the scheduled election, Rose met at the Re- spondent’s offices with Hilbert and Union Grand Lodge Repre- sentative Dan VandeKolk, at Hilbert’s phoned request. Hilbert told Rose that he and VandeKolk were there to say that the Union had filed fairly significant unfair labor practice charges against the Company because of the forthcoming election and that Rose had no right to do this. VandeKolk echoed these sen- timents and tried to convince Rose not to go through with the poll. The Union would rather see negotiations start that spring without Rose taking on the Union. Rose replied that he wanted to take this vote to see the kind of support that the Union had in place; he did not want to have the employees paying union dues that they might not want. Rose declared that he had his doubts as to whether the employees supported the Union and that he needed this information to go into the negotiations. Rose did not think that he could go through negotiations without really knowing whether the (the Union) people to whom the Company was talking represented a majority of the employees. Rose had had that same feeling from the 1997 negotiations and he felt that he had to do something at that time to know that he was negotiating with the right people. Rose declared that he would be bringing in an accountant to handle the ballots and that he was going to try to run the polling with a secret ballot similar to how the NLRB would run it. He reiterated that he wanted to take this vote to find out if the em- ployees had the support of the people. 4. The January 27 election Over the Union’s objection, the Respondent conducted the election on January 27, as scheduled. The results were 86 votes in favor of continued representation by the Union, 17 votes against, and 1 challenged ballot. The Union demonstrated this level of support even though the record shows that the Respon- dent also had permitted eight probationary employees to vote. Under article 7 of the 1997 collective-bargaining agreement 5 See Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962). 6 156 NLRB 1236 (1966). then in effect, probationary employees were not covered and could not become part of the bargaining unit until the end of their respective 90-day trial periods. In this regard, Rose testi- fied during cross-examination, “Yes, I believe everybody voted.” 5. Reasons for doubting the Union’s majority status To support the Respondent’s assertion that it had had suffi- cient objective reasons for a good-faith doubt of the Union’s majority status when it conducted the disputed election, Braun described a series of conversations he had had with employees who, since the signing of the immediately prior 1997 collec- tive-bargaining agreement on January 30, 1998, had expressed their dissatisfaction with the Union. In early January 1999, bargaining unit employee Brian Duty, who had spoken to Braun intermittently during 1998 and into early 1999, expressed his discontent with the Union. Duty asked Braun why the Company had a union, stating that he did not feel that the Union had done anything for him. Duty also asked what the employees got for their $17.50 a month.7 Braun related that Debra Struck, a member of the safety committee, had complained about the Union in late December 1998 or early January while he and she were alone in the con- ference room before a safety meeting. Struck told Braun that the union contract was coming up; that she was a member “be- cause her mom was a member;” but that she did not see the Union’s usefulness or feel that it was necessary anymore. When Braun asked what she meant by “anymore,” Struck declared that under the former president (John Skroger), she had felt that the Union was necessary, but it was not necessary anymore. According to Braun, Donny Groskreutz, a bargaining unit employee in charge of kilns who frequented Braun’s office for a variety of reasons, also spoke to him about the Union in De- cember 1998. Groskreutz often had complained about kiln problems or about certain employees. On this occasion, Grosk- reutz’ disaffection was with the Union; he wanted to know the procedure for getting out of it. This topic had arisen because a couple of people, including Groskreutz’ brother, Brian, also employed by the Respondent, had told him that they were dis- satisfied with the Union. Braun explained the 7-day escape clause, which period began to run after the ratification, the signing and the posting of the contract.8 7 Braun had encountered Duty, an overnight and fireman, when he stopped by the office while Braun was working late. 8 The contractual provisions from art. 1, applicable to the “escape clause,” are as follows in relevant part: 1.2 Union Security/Maintenance of Membership—Subject to Applicable Laws. All employees of the Company included within the unit above described who . . . are members of the Union in good standing seven days after the posting of the Notice described below, will be required to maintain their membership in the Union in good standing for the duration of this contract as a condition of continued employment. . . . . 1.3 Bulletin Board Notice/Right to Resign Union Member- ship. As soon as possible after both parties have signed this Agreement, a copy of the foregoing section shall be posted on the bulletin boards where all employees may see same and the period DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158 In late October or November 1998, Brian Groskreutz, Donny Groskreutz’ above-referenced brother, stopped in to speak pri- vately with Braun in the latter’s office. Groskreutz told Braun that he felt that the Union was more of a hindrance than a help. When Braun asked what Groskreutz had meant, he said that the committee members were self-serving. Braun asked what he meant by that. Groskreutz explained that unless an employee was related to or was friends with them, he did not get as much attention. In February 1998, Angela Morales called Braun, upset be- cause she had learned that her husband, Jose, a Hispanic with- out good English-language skills, had been lied to about his right to withdraw from the Union under the above-contractual escape clause. She had thought that Jose and several other like employees, including Maria Gonzales and Maria Hernandez, “had been scared into joining the Union” by being told, because they were Hispanics, that they would lose their jobs or be pushed down to the lowest paying positions, and have to take pay cuts unless they signed up with the Union. After the con- tract had been ratified, Jose Morales asked Vivian Mendez9 how to get out of the Union and was told, “You can’t.” So, Jose did nothing until he learned, too late, of the 7-day escape clause.10 Angela Morales stated that she felt that this was un- fair and asked what the Company was going to do about it. Braun told her that he would take the matter up with Rose, but suggested that she document this complaint in letter form. An- gela Morales did not do this. Braun initially testified that, in March or April 1998, bar- gaining unit mechanic Mike Brown informed him that he had been told that he would lose his job when the contract was signed unless he was in the Union. However, on cross- examination, Braun clarified this by testifying that Brown had said that he had been informed that if union membership did not increase the employees would lose their Dean Health Plan coverage and that 10 mechanics would lose their jobs. He felt that coercion was wrong. Brown asked if Braun was aware that the Union had made such statements to employees about 6 to 8 months earlier. Braun replied that he had heard those rumors but that he had not been specifically informed that any individ- ual had been told this. Braun did not try to find out which union representatives had said this to Brown. He also did not file a grievance over this matter or a charge with the Board. of “seven days” set forth in the above section, namely, 1.2, shall date from the date of said posting. 1.4 Resignation from Union Membership. Any employee de- siring to exercise his rights under the escape clause of this provi- sion must notify the Union’s Secretary–Treasurer of Local No. 121 of the International Association of Machinists and Aerospace Workers, AFL–CIO (mailing address), by certified or registered letter, receipt requested. 9 Vivian Mendez was a union steward from 1997 through mid-1999 and was on the union negotiating committee in 1997 and 1999. 10 The above-described escape clause in the 1997 contract, signed January 30, 1998, which gave employees a 7-day window in which to resign their union memberships from the time the relevant contract provision was posted, ended by February 9, 1998. Reportedly, Angela Morales made her complaint to Braun after that period had ended. In the summer of 1998, employee Gary Leaf privately told Braun in plant 2 that an individual from the Union had ap- proached him when he was not on break and had asked him to consider joining. Leaf stated to Braun that he did not feel that it had been appropriate for these individuals to recruit on com- pany time. The record, however, reveals that none of the above employ- ees who had complained to Braun about the Union—Duty, Struck, Donny, Brian Groskreutz, Brown or Leaf—had been paying union dues. Countering Braun’s testimony that Angela Morales had told him that Jose Morales, Maria Gonzalez, and Maria Hernandez “had been had been scared into joining the Union,” and that Jose Morales had been lied to about the escape clause, the company-prepared monthly dues reports to the Un- ion, prepared from data principally compiled by Braun as hu- man resources director, collectively indicate that at no relevant time, including before or after the end of the relevant escape clause period, did Jose Morales or Maria Gonzalez pay dues to the Union. As to Hernandez, the Respondent’s record of dues transmitted to the Union for January, when the Respondent conducted its poll, indicated a negative balance. This was be- cause dues had been inappropriately deducted from Hernandez in December 1998 while she was on maternity leave from which she did not return. Accordingly, Hernandez had not actu- ally worked on the Respondent’s premises for 2 to 3 months before Angela Morales’ described call to Braun complaining, inter alia, about Hernandez’ treatment. Braun related, at unrecalled times, he intermittently had told Rose of these employee complaints about the Union, not al- ways immediately. No notes were kept of these conversations. Rose testified that his decision to conduct the January 1999 election stemmed from a process which had begun in 1993 when he was processing dues checkoffs while serving as the Respondent’s chief financial officer. Thinking it odd that very few of the Respondent’s employees were paying dues, Rose began to develop doubts about the Union’s majority status. In 1994, the then-President John Skroger had told Rose that he thought that the Union was not very strong; that there was not a lot of support for the Union; and that was the way Skroger liked it. Skroger told Rose that the absence of a strong union was a good thing for him; the best situation. Rose related that at one of the meetings with the Union in 1997 company representatives Jack Miller and Mike Braun, proposed that there be a jointly conducted poll, which the Un- ion declined. Company Attorney Russ R. Mueller then told Rose that the only way to accomplish this would be to conduct a poll “on our own.” Mueller then explained some of the legal ramifications of conducting such a poll. At the time, Rose de- cided not to have the poll. He was making “lots of changes” in the Company and was not willing to take on another project. Rose testified that when he had weighed everything together, there was not enough doubt in his mind to go through that legal mess. Shortly after Rose became company president in 1997, the then-current collective-bargaining agreement was about to ex- pire and negotiations for a new agreement were coming up. Rose expressed his doubts to Attorney Mueller and asked what he could do. Mueller reassured Rose that he was not the first to WISCONSIN PROCELAIN CO. 159 have had doubts like this, that the presidents of this Company going way back had had the same doubts based on what they had known union membership to be over the years. Mueller suggested that the Company ask the Union to do a joint poll to determine the measure of employee support for the Union. Also during the 1997 contract negotiations, Rose spoke to Miller and Braun about different things that they had heard being said. Employees also stopped and questioned Rose as he walked through the plant. One such employee, an unidentified older woman working on the fuse line, had asked how Rose could take away her health insurance. Rose reassured her that no one was going to take away her health insurance. The em- ployee replied that that was what she had heard. Rose told her that if he were to try to take away her health insurance, he would be taking away his own health insurance, also. That was not going to happen. Rose also related that an unrecalled employee also had stopped and asked him about the Company cutting pay down to the minimum wage. At that time, the Company was raising starting wages in order to compete with the surrounding labor market. He reassured the employee that that was not going to happen. When the Union began its organizing drive among the Re- spondent’s employees in October 1997, Rose wondered why such a big recruitment campaign was then needed. He had just taken over as president and “actually felt a little bit hurt by the whole thing.” It was possible that “the Union doubted its own support enough to have to use these tactics to gain member- ship.” After the 1997 contract was negotiated, Rose noticed that the previously small number of union members had jumped substantially, so that the Union had gained what it had been after. Rose “still was bothered and concerned by the fact that, after all they had gone through with the Company not doing anything, the majority of employees in the bargaining unit still were not Union members.” In November 1998, Rose spoke to employee Bruce Moe, who had been trying to get different working hours than those to which the Company would be changing to that month. Rose told Moe that he did not think the Company could accommo- date him. Moe responded that it probably was a union thing. Rose declared that part of it was; the Company had to be fair to everybody. Moe stated that he did not believe that the Union was doing anything for him. He had seen this in the past when he had had his own business. In addition to Moe, Rose received reports from supervisors to whom employees had expressed their dissatisfaction with the Union. In early 1998, Braun had reported to Rose that one of the union representatives had been telling Hispanic employees untruths about having to be in the Union. When Rose replied that he hardly believed this, Braun told him that the people who had come to him had said that they had been told such things and that the union representatives had misrepresented the facts. Braun had come to Rose with other such reports on two or three other occasions. Rose did not personally speak to the affected employees. Rose also had a number of meetings with the union represen- tatives in November 1998 when, as noted, the Respondent was changing its work hours. At one such meeting, Rose expressed his frustration to then-chief union steward Susan Reyes about employees not volunteering more information as to the hours they wanted. If they would just participate a little bit, perhaps they would get better hours. Reyes answered that the same thing was true when she went to her union meetings, people do not always participate. At the end of 1998, Rose noticed that union membership had declined from the membership high point right after the Un- ion’s 1997 recruitment drive. Rose interpreted this as a trend indicating that, if he did not then do something, the Union’s membership would drop back to where it had been. Rose then would continue to doubt its majority status without having taken any action. Accordingly, Rose contacted Mueller and asked about the election that Mueller had talked to him about 2 years before. Mueller counseled that the Company should set up the election in January, which Rose did. However, the rele- vant part of Rose’s prepared outline for what he would say at the January 21 meeting, which he had followed, revealed that Rose’s only stated reason at the time for going forward with the poll was “the small number of employees that have joined the Union.” Rose did not did not then mention any other of his other above reasons for the poll, including reports of employee dissatisfaction, lack of employee participation, as Reyes assert- edly had described to him, or any acts of coercion and/or mis- representation. This outline passage, under the heading “Inde- pendent Election,” was as follows: Co. wants to determine if majority of the employees want the Union to represent them. Law says that Company should negotiate with a union only if that union represents the majority of the employ- ees. The reason for doubt is due to the small number of employees that have joined the Union. Had doubt for many years. The Co. asked the union to mutually agree to this vote 1.5 years. This is only a poll to gain info on how the employees feel and make sure the employees want a union to repre- sent them. Secret ballot conducted by independent CPA. Will be held on Wednesday January 27th Look for the notice to be posted. Rose testified that when he and Union Business Representa- tive Bulman left the January 21 meeting together, he did not communicate to Bulman any of the other noted reasons for his doubts concerning the Union’s majority status. Also, while Rose, during his January 26 preelection meeting with Hilbert and VandeKolk, did mention his doubts concerning the Union’s majority, he did not recall how much supporting detail he had given them. To illustrate some part of Rose’s rationale for the January 1999 election, the Respondent put together a January 2000 document, assertedly from company records, for use at the hearing in this proceeding. The first part of this document pur- ported to show by monthly breakdown the numbers of employ- ees who had been paying dues to the Union for each month from January 1996 through January 1999, the number of bar- gaining unit employees for each of those months and the thus— derived corresponding percentages of employees who were DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160 union members. From the beginning of the covered period, union membership hovered at between 7 and 8 percent, rising to 10 percent in September and October 1996 and then gradu- ally tapering back down to 7 to 9 percent, with the lowest figure in September 1997. From November 1997 through January 1998, after the Union’s recruitment drive and the signing of the 1997 collective-bargaining agreement, membership increased to 43 percent of the unit. This figure again gradually decreased to 36 percent in December 1998 and to 26 percent in January 1999, when the Respondent conducted its election. The second part of Rose’s document showed, on a month- by-month basis, the respective numbers of employees who paid union dues. This exhibit shows that from January 1996 through October 1997, 12 to 14 unit employees made such payments. From November 1997, after the Union’s drive for new mem- bers, through January 1998, the number of dues payers peaked at from 65 to 68 employees. Thereafter, the number of dues contributors gradually dwindled from 58 in February 1998 to 42 in December 1998 to the there-asserted 33 employees in January 1999. Therefore, the Respondent contends, in claiming reasonable doubt when it conducted the election, that from the number of dues-paying unit employees, at no time during the preceding 3 years did the Union enjoy majority status. The Respondent further asserts that employee support for the Union had in- creased for only a few months after its fall 1997 recruitment drive and that even that increase had come about from the Un- ion’s coercive tactics during the campaign. Adherence had increasingly diminished in the months that followed until by the month of the election, only 26 percent of the bargaining unit employees were overtly endorsing the Union by paying dues. However, the Respondent’s figures concerning unit size and the percentage of dues-paying employees reflected in that ex- hibit were corrected on the record. Rose initially argued from the above document that in January 1999, there were 128 bar- gaining unit employees, with 33 employees, or 26 percent, paying dues. In listing this figure, Rose did not verify the num- ber of bargaining unit employees by checking the same against the underlying payroll records. He merely had relied on the number of paychecks written. However, under cross-exami- nation, Rose conceded that more than 17 of the 128 unit em- ployees indicated in his exhibit for January 1999 actually were not in the unit and that his 128 employee figure had been de- rived by including paychecks for nonunit employees. Recogni- tion of this discrepancy resulted in a stipulation that during the pay week ending January 2, 1999, there were a total of 117 bargaining unit employees. Of this group, approximately 28 percent paid union dues. On January 15, Braun had sent Union Representative Bul- man the following accurate breakdown of employment figures: management employees—27; hourly union members—39; hourly nonunion members—70; probationary employees—12; for an overall total of 148 employees. However, only the 109 hourly employees, union and nonunion, were in the bargaining unit. Although, as noted, the probationary employees were excluded from the unit by the collective-bargaining agreement, the Respondent had permitted them to vote in the January 27 election. Rose testified that “everybody voted.” Rose testified that, while talking about an agency shop with the union representatives during the postelection March and April bargaining sessions, he did express his concern that he would lose some valued employees if an agency shop was es- tablished because those workers were dead set against the Un- ion. In a March 4 letter to Mueller, the Board agent who had in- vestigated this matter, summarized their prior phone conversa- tions about the Union’s January 25 unfair labor practice charge. The letter noted that the principal stated reason for the Respon- dent’s asserted doubts as to the Union’s majority, in the context of there not having been any union-security provisions in the collective-bargaining agreement since 1974, was its belief that a majority of its bargaining unit employees were not union members. In Mueller’s March 8 reply to the Board agent’s above letter, he agreed that the statement therein concerning the basis for the Respondent’s good-faith grounds for doubting the Union’s continued majority was accurate in terms of what he had said. However, the Board agent’s conclusion that the conduct of the poll “in large part” relied on the Respondent’s belief that a “minority (typo)” of its employees were not union members, was not. Prominent among factors on which the Respondent had based its “good-faith grounds” for doubt in conducting its election besides the lack of employee membership in the Un- ion, was that a majority of unit employees had not participated in the contract ratification vote and that the Union had con- ducted a drive for increased membership several months before the start of negotiations. The number of employees who had belonged to the Union and who had participated in the contract ratification vote, in each case, were much less than a majority of the total unit complement. 6. Respondent’s statements at the bargaining sessions After the Union’s successful showing at the January 27 elec- tion, the parties met in a series of bargaining sessions on March 5, 11, 17, 29, and 30 and April 5 to negotiate the terms of a new collective-bargaining agreement to replace the then-current 1997 contract scheduled to expire on March 31. A successor labor agreement, effective from April 1, 1999, to March 31, 2002, eventually was executed and was in effect at the time of the hearing. This current contract, like those before it, does not provide for the agency shop sought by the Union. The General Counsel and the Union contend that during cer- tain of these bargaining sessions, Rose made unlawful state- ments to the Union and employee negotiators, and uttered other expressions indicative of the Respondent’s hostility to the Un- ion. These parties contend that such declarations reflected back on, and demonstrated, the Respondent’s spurious motives in conducting the poll. a. The March 5 negotiating session Hilbert, Braun, and Rose testified concerning the initial, March 5 negotiating session. Rose and Braun were the Com- pany’s sole negotiators, while Hilbert, Bulman, and the bar- gaining committee, consisting of Chairperson Sue Reyes and committee members Mike Andreas and Vivian Mendez, all Respondent’s employees, attended for the Union. This meeting and those that followed, as considered below, all were held on WISCONSIN PROCELAIN CO. 161 the Respondent’s premises during afternoons when the em- ployee participants finished work. The same individuals at- tended each session. Since the accounts given by Braun and Rose of the March 5 meeting were more comprehensive than that of Hilbert, their combined testimony follows: Rose opened the March 5 bargaining session by declaring that the Union’s pending unfair labor practice charge could cause “us” problems in negotiating this contract. It would be nice to get this charge behind “us” and maybe “we” could ne- gotiate some settlement on this polling charge. Rose stated that he was not in the polling business and declared, “We’re not going to do this again and there must be some way we can work this out.” Hilbert replied that, since the results of the January poll had been so overwhelmingly for the Union, the Union was proposing an agency fee shop. Hilbert explained that he wanted to have the agency shop proposal included in the new agree- ment, for one thing, to prevent anything like the Company’s January election from happening again. Rose responded that the Union’s position had been strengthened as a result of the poll- ing, and he thought it best that the parties try to negotiate some kind of settlement to eliminate the charge that had been filed because of the polling. Hilbert replied that he had a settlement offer he would like the Company to entertain. If the Union were to get an agency shop, then he would see about dropping the unfair labor prac- tice charges. Rose replied that he felt that he had not done any- thing wrong; that the poll had been the right thing to do. Rose said that, if he had to do it all over again, he would do it again. In his future life, if he ever was in this situation again, he would do the poll again. Rose told the union negotiators that he was greatly con- cerned about the employees and that he represented the em- ployees. Hilbert slammed his fist down on the table and retorted that this Union was the only employee representative. This was followed by a period of silence. At that session, Rose declared with respect to the agency shop proposal that he believed it was a moral issue that the employees decide whether or not they were going to be in the Union. Hilbert testified that whenever the subject of polling came up during the various negotiating sessions, it was in company re- sponse to the Union’s union-security/agency shop proposals. The parties then went through their proposals. As the meet- ing ended, Rose told the others that he would do some research. b. The March 11 negotiating session Hilbert testified that at the start of the next, March 11, bar- gaining session, the topic of the January 27 election came up again. At that meeting, Rose told the union representatives that because he represented the employees, he preferred to have the employees “take those types of votes in the future” to know if the employees still supported the Union. Hilbert responded that there were laws that allowed the employees, if they did not want a union, to take those kinds of votes legally. Rose opined that the employees at Wisconsin Porcelain would not be up on those kinds of decisions and would not understand them. So, since Rose represented the employees, he would take a vote on this again. According to Hilbert, Rose announced that, since their last meeting, he had done some research on the Internet, looking up labor cases involving reduced fee payments. He had come across the Beck decision,11 where employees could pay reduced union fees. Hilbert told Rose that he was familiar with the Beck decision and that the Machinists Union abided by it in every instance. Hilbert declared that there were ways for the employ- ees to legally get out of the Union if they did not want it. The Union was against having “votes like that.” The parties then went on to their other contract issues. Rose said nothing about taking another poll only if he then should have a good-faith reasonable doubt about the Union’s majority status. Bulman and the union bargaining committee member Mi- chael Andreas added that Rose had said that he was not sorry for having taken the poll and that, if he felt it necessary, he would do it again. The Respondent’s human resources administrator, Braun, confirmed Rose’s announcement that in his research on the Internet, he had discovered the Beck decision which enabled union members who objected to what some of the Union’s funds were being used for to pay reduced dues. According to Rose’s interpretation of that decision, all employees did not have to pay the full amount of the union dues and there might be some way that the parties could use reduced dues to allow the Union “to get something for the agency shop it was request- ing.” Braun related that Rose then explained that he had con- ducted the poll to find out whether the employees really be- lieved that the Union, in representing them with the Company, was addressing their concerns. Hilbert replied that he believed that it had been illegal for the Company to do this and that he was pursuing the matter. According to Braun, Rose declared that he felt so strongly about this election that, given the same circumstances, he would do it again because he did not believe that it was illegal. Andreas related that Hilbert had repeated that such votes were against the Federal labor laws and that they could not be held. Rose testified that when the parties finished talking about the poll at that meeting, he stated that he would like to keep the election out of the meetings. These were contract meetings and, since “we” weren’t going to come up with any settlement of the unfair labor practice charges at these meetings, he asked the Union to keep out the matter of the poll and to just concentrate on the negotiations. Rose denied having told the union representatives during any of the negotiating sessions that he, at any time, would conduct elections as he had in January. He did not tell the Union that he intended to conduct elections whenever he wanted and noted that it would have been against the contract that later was nego- tiated for him to have done any further polling at Wisconsin Porcelain. 11 Succinctly, in Communications Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court, in cases where a union seeks to apply a union-security clause to unit employees, required that the union, under its duty of fair representation, notify such employees of their right to object to the expenditure of funds collected under that clause on activi- ties unrelated to collective bargaining, contract administration or griev- ance adjustment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162 Rose recalled that, at the March 11 meeting, he did tell the union representatives that he had found this Beck decision which held that there were ways for union members to pay reduced fees. Rose stated that he was concerned about an agency shop where everybody had to pay dues forever. If the amounts paid to the Union were less than the full dues total, maybe there was something that the parties could work out. Hilbert replied that he was aware of the Beck decision and that the Union abided by it. Rose declared that he had not known of that decision and did not know if the Respondent’s employees knew about it. Perhaps, they could “work that in somehow, letting the employees know.” Rose testified that he then did not make any offers; he was trying to work things out. c. The March 15 telephone conversation Hilbert testified that he telephoned Rose on March 15, re- minding him about a commitment that he had made more than once—that, if the employees overwhelmingly voted in support of the Union, they all should pay their fair share of the dues. Rose, upset, replied that he represented the employees and that he was going to take these votes to find out if the Union had the employees’ support. “The Union should be happy that the Company had taken that vote because it turned out like it did.” Hilbert related that, during that 45-minute conversation, Rose told him that he did not care for unions. Wisconsin Porce- lain, at one point, probably had needed a union but now, be- cause he’s the boss and everyone likes him, they don’t need one. Hilbert replied that the people on the floor, union and non- union, alike, would take issue with that. They were telling Hil- bert and the committee that they should make sure that the Un- ion did not drop the filed charges; that the Union should make sure that it stood up for them. Rose declared that he had been planning the January poll for quite some time and that his attor- ney had advised that the time had come to do it. Hilbert’s notes, taken during that conversation, showed that when he had told Rose that the employees wanted the Union to keep the charges active, Rose wanted names to pursue. Rose stated that he would do the poll again to find out how employ- ees felt about a union; that he wanted to talk to those employ- ees. Hilbert did not give Rose any names. Rose reiterated that the poll that had been taken was a good thing for the Union, and that “we should be happy.” Rose recalled that Hilbert had called him in mid-March, of- fering to provide additional information as to how agency shops and unions benefited both companies and employees. Rose replied that he was interested in hearing that information, but he also had his own data from the Internet that contained some contrary things. Hilbert told Rose that if everybody paid dues, then a majority of the employees would agree to have dues automatically deducted or to have an agency shop. A lot of the people were not paying their dues because everybody did not have to pay them. Rose responded that some employees had told him that they would look for other work if the Company became an agency shop; he was concerned that a couple of lead people would then leave. Rose related that he had told Hilbert that he felt that he was an advocate for the employees and, even though Hilbert main- tained that the Union represented the employees, Rose declared that he had to represent them, also. Rose pointed out that com- panies went through varying stages of change, one of them being the company president and who that president was. The Union helped to protect the employees when the president was a more dictatorial-type personality. However, when the presi- dent was trying to elicit employee involvement, the Union was not as necessary. Rose went on that, in the case of Wisconsin Porcelain, his predecessor he been something of a dictator. Rose, however, had been trying to help the employees and to get them involved. In Rose’s stated opinion, even though the employees might not need a union at Wisconsin Porcelain while he was president, they still might need a union there again because companies go through varying conditions. Rose reiterated that he was an advocate for the employees, that he was doing what he could to make the Company successful, and that that was a main thing for him to do. Nothing was said dur- ing that conversation about conducting polls. Rose denied asking Hilbert for the names of employees who, Hilbert asserted, had wanted the Union to continue pursuing the charges. d. The March 29 negotiating session The January 1999 poll next was discussed at the March 29 bargaining session in the customary context of the Union’s efforts to obtain union security. The mutually-accepted minutes of that meeting showed that in response to the Union’s proposal requiring “that all employees covered by the contract be mem- bers of the Union and pay the appropriate fees to provide union security,” the Company put forward the following: a) The Union does an independent poll asking all em- ployees the question; Do I support everyone paying union dues? If 75% answer yes then everyone pays. b) That the Union conduct a yearly independent poll in January asking all employees if the union is doing a good job for me and I still support there [sic] efforts at WP. If less than 50% answer yes, then the contract ends the fol- lowing March 31st. c) That all employees are given a handout of their elec- tion to pay reduced fees. This would include an explana- tion that the reduced fees cover bargaining activities only and that it is their right to decide. These minutes, as propounded through Hilbert, showed that the Union, in turn, proposed that all employees who were members of the Union continue to be members; that all new hires be required to be union members; that employees who currently were not members not be required to become mem- bers; and that once an employee is a member he must maintain his membership as a condition of continued employment. Hilbert’s notes of the March 29 meeting showed that Rose “now wanted a vote every year—Concerned on members get- ting what they pay for.” The Union brought up the F.M.C.S.12 12 The Federal Mediation and Conciliation Service was called in for the final, April 5 session to attempt to mediate the union-security issue. The contract ultimately was agreed to without an agency shop provi- sion. WISCONSIN PROCELAIN CO. 163 “Can’t live with a vote every year and the possibility of having no contract.” Hilbert, at some point before the terms of the 1999 contract were finalized, did tell Rose that if an agency shop was agreed to, he then would seek to have the charges before the Board withdrawn. Braun testified that, at one point, Rose proposed in writing that he would be willing to grant an agency shop. However, he wanted it tied to an arrangement where there would be an elec- tion every year and the employee majority would decide whether the agency shop would continue. Hilbert would not agree to this. Braun related that, either at the March 29 or 30 session, Rose stated during Hilbert’s discussion of the election and the agency shop, that as along as he was at Wisconsin Porcelain, there never would be another vote of this nature taken again; that it would be the last election the Company would conduct; and that he expected the Union to conduct future elections. Rose did not abandon the idea of serial elections. He merely pro- posed that the Union thereafter conduct them. Hilbert told Rose that he could not stomach, abide, or tolerate an annual election; the agency security shop was that important. Rose remained just as determined on the issue. According to Braun, Rose told the union representatives that if he, himself, was the owner, he would prefer not to have the Union there; that he would shut down the Company rather than to have to put up with the Un- ion. Rose continued, however, that Wisconsin Porcelain was not his company to do with as he pleased; he was only its care- taker. Braun presented the following explanation of his notes of the March 29 bargaining session: “A. Doesn’t believe in unions,” reflected Rose’s comment that either he did not believe in un- ions or that he did not have a need for unions. Braun’s further note, “B. Moral issue, do right by employees,” related to Rose’ statement, made “many times,” that he believed that there was a moral issue against a contractual agency shop provision in that it would trap and lock employees into union membership. Rose wanted to “do right by the employees.” Rose, when making this statement, related that his father had been a part of a union during much of his life; that he personally did not believe in unions. Rose testified that at the March 29 meeting, the parties dis- cussed the agency shop. Rose told the committee that there might be some middle way for the Company to do an agency shop. He proposed that the employees have some means for voting as to whether to keep the agency shop. If the Union was voted in, then it could stay for a year and the employees would have a chance to vote. Rose reiterated that the collective- bargaining agreement was unfair to the employees in that it was like a lifelong contract and that the employees needed some way to get out of it. His proposals were intended to start that kind of dialogue. The Union rejected having such polls. Rose, as he had during earlier sessions, told the Union that he was concerned about losing some key employees who might leave the Company should an agency shop be adopted. His proposal that the Union conduct an annual vote might be a way of not losing them. If the employees really did feel that an agency shop was necessary and could vote on it every year, that would be a good compromise. Rose further testified that he had told the union representa- tives that unions were a thing of the past. They had been very good for when his father had grown up. Rose declared that the union his father had belonged to had been very necessary for him, but that times had changed. If an employer doesn’t value his employees and treat them well in today’s market, he loses them. The president of the Company had to be an advocate for the employees in this day and age. He felt that he was an advo- cate for the employees at Wisconsin Porcelain. Rose declared that, if he ever started a business, owned it, was able to grow it into a company and a union came in, Rose would feel that he had failed these employees. He would sell the company or close it down. e. The March 30 negotiating session The January 27 poll next was mentioned during the March 30 bargaining session. This occurred when, from the combined uncontradicted testimony of Hilbert, Bulman, and the union negotiating committee member Michael Andreas, Rose reiter- ated that he did not like unions; that he was trying to do right by the employees; that he was not sorry that he had conducted the January poll; and that he would do it all over again if he had to. Hilbert again replied that such polling was against the Fed- eral labor laws and that there could be charges involved. Rose told the others that he personally disliked unions, that he had inherited this package and that if he was starting up his own shop, he would shut it down before he would let a union in. Braun, testifying for the Respondent, essentially confirmed Rose’s statement about shutting down. During this part of the March 30 meeting, the Company withdrew its March 29 proposal concerning the above-three steps on union security, which were that, if 75 percent of the employees voted for the Union in annual union-conducted elec- tions, all would have to pay dues; that if less than 50 percent voted for the Union, the contract would end the following March; and that the employees be advised of their option to pay reduced fees. B. The Respondent’s Polling of Its Employees; Later Negotiat- ing Conduct—Discussion and Conclusions The Board historically has discouraged employer-conducted elections. In Montgomery Ward & Co.,13 Administrative Law Judge Silberman, in his Board-approved decision, noted that: From the early days of the Act, the Board has looked with disfavor upon employer-sponsored elections. A poll of employees by their employer as to whether they wish to be represented by a labor organization is an intrusion upon the employees’ statutory right freely to select a collective bargaining representative without employer interference (footnote omitted). . . . . As a poll is presumed to be violative of the Act, the burden is upon the employer to establish that he has ob- 13 210 NLRB 717, 724 (1974). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164 served all the required safeguards and falls within the ex- ception approved in Strucksnes [Construction, Inc., 165 NLRB 1062 (1967)]. Heck’s Inc., 174 NLRB 951 [(1969)]; Nu-Southern Dyeing & Finishing, Inc., 179 NLRB 573 [(1969)] [bracketed matter supplied]. The permissible polling exception noted above in Montgom- ery Ward as having been approved in Strucksnes related at the time to situations where an employer, without proceeding through a Board-conducted election, might recognize a union that had demanded same if the employer could ascertain that the union truly enjoyed majority support among the bargaining unit employees. In Strucknes,14 the Board held that: Absent unusual circumstances, the polling of employ- ees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a un- ion’s claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or oth- erwise created a coercive atmosphere. Strucksnes and Montgomery Ward, which observed that it was lawful for an employer to initiate an election, if conducted in accordance with prescribed standards, to determine the ma- jority status of a union seeking initial recognition, did not sanc- tion the present circumstance where the employer initiated a poll to challenge the majority status of an incumbent labor or- ganization which it had duly recognized for years. However, in Texas Petrochemicals Corp.,15 the Board de- scribed a broadened policy which enabled employer-initiated polls to also determine the majority status of duly recognized unions with which they already were bargaining. There, the Board noted that: The Board long held that . . . employer polls . . . re- quire as an evidentiary prerequisite a showing of sufficient objective considerations on which an employer could base a reasonable doubt about a union’s continued majority status; this is the ‘reasonable doubt’ standard . . . devel- oped because the purposes of . . . polls, and the potential consequences of them as well of withdrawals of recogni- tion, are the same. The purpose of . . . employer polls is to determine whether an incumbent union still has majority support; their potential consequence, as well as that of withdrawal of recognition, is loss of recognition and stand- ing as collective bargaining representative for the employ- ees. In light of these similarities of purposes and potential consequences, it is appropriate and necessary that the evi- dentiary predicates for these actions be both stringent and identical. Reaffirming its earlier reservations concerning employer polling as stated above in Montgomery Ward, the Board, in Texas Petrochemicals, held that: 14 165 NLRB, supra at 1063. 15 296 NLRB 1057, 1060 (1989), remanded as modified 923 F.2d 398 (5th Cir. 1991). polling employees about their continued support for an in- cumbent union is itself potentially, if not inherently, both dis- ruptive of the collective bargaining relationship between an employer and a union and also unsettling to the employees involved. Submitting a union’s role as representative to an employer-initiated and conducted employee referendum raises simultaneously a challenge to the union in its role as representative and a doubt in the mind of an employee as to the union’s status as his bargaining representative.16 The Texas Petrochemicals decision17 noted that the weight of an employer’s legitimate interest in testing to see if an in- cumbent union still has majority support is counterbalanced by “the . . . rebuttable presumption that an incumbent union con- tinues to be supported by a majority of the employees it repre- sents.” Since this presumption, unless and until rebutted, pro- tects an employer against allegations that it is unlawfully rec- ognizing a minority incumbent union, and also relieves an em- ployer of any obligation it might feel to withdraw recognition from an incumbent union whose majority support is doubted by the employer . . . there is no compelling need for an employer who doubts the majority status of its employees’ selected repre- sentative to test the actual extent of that support. The Board, in that case, noted that “[c]onsequently, an employer’s interest in testing the actual extent of employee support for an incumbent union is not . . . a fundamental interest which outweighs the fundamental goal of stability in collective-bargaining relation- ships.” The Texas Petrochemicals decision recognized that, apart from a legal interest in avoiding unlawful continued recognition or unlawful withdrawal of recognition, an employer who re- ceived evidence of a loss of majority support for an incumbent union might have an economic interest in testing that evidence because, among other reasons, it preferred not to be encum- bered by a collective-bargaining relationship and saw a poten- tially lawful way of ending it. Under the above authority, the Respondent’s January 27 polling of its employees was “both disruptive of the collective- bargaining relationship . . . and also unsettling to the employees involved.” In practical/legal terms, this Respondent had had no compelling need to conduct that election when it did and, thereby, undermine the policy favoring stability in collective- bargaining relationships. The rebuttable presumption of the Union’s continued majority standing, noted in Texas Petro- chemicals, had protected the Respondent from any outside alle- gations that it unlawfully might be continuing to recognize a minority labor organization. The Respondent’s only reason for holding the election that was provided to its employees and the Union at the time, that a majority of its bargaining unit employees had not been paying monthly union dues, did not, in itself, meet the prerequisite showing of “sufficient objective considerations” to have en- abled the Respondent to lawfully sustain a good-faith doubt concerning the Union’s continued majority status. 16 Id. at 1061–1062. 17 Id. at 1062. WISCONSIN PROCELAIN CO. 165 In this setting, the Respondent’s subsequently afforded ex- planations for the poll—Rose’s stated concern about losing certain employees who assertedly were opposed to continued union representation; that a majority of the employees in the affected unit had not participated in the contract ratification vote; that some employees had complained about the Union; and that the Union apparently had needed to conduct a coercive drive for increased membership several months before the start of negotiations for the 1997 collective-bargaining agreement— appear to be rationalizations after the fact. The Board in Flying Dutchman Park, Inc.,18 rejected the substance of the Respondent’s argument that it was entitled to stage that election when it did upon asserted good-faith doubts of majority where such doubts were grounded on factors that had existed before the January 30, 1998 signing of the immedi- ately preceding 1997 contract. The Board, in Flying Dutchman Park, supra, also effectively disallowed the Respondent’s further contention that a good- faith doubt of continued majority could be derived from the fact that less than half of the affected bargaining unit employees had been Union members. The Flying Dutchman Park respondent, in claiming a good-faith suspicion as to the union’s continued majority support, had refused to execute a fully agreed labor contract because, among other things, only a minority of the unit employees actually had been members of the union when the parties had reached final accord on the contract. With re- spect to so much of the present Respondent’s doubts as assert- edly had arisen before the 1997 contract was signed, the Board, in Flying Dutchman Park, cited the U.S. Supreme Court’s hold- ing in Auciello Iron Works, Inc. v. NLRB,19 to hold that: [A]n employer violates Section 8(a)(5) and (1) by refusing to execute an agreed-on collective bargaining agreement be- cause of an asserted good faith doubt about a union’s contin- ued majority status when the asserted doubt arises from facts known to the employer before the union accepted the em- ployer’s contract offer. . . . In sum, the Court held that the pre- contractual good faith doubt about the Union’s continued ma- jority status was not adequate to support an exception to the conclusive presumption of continued majority support for the union arising ‘at the moment’ a collective bargaining contract offer has been accepted.20 The Board, in Flying Dutchman Park, continued: Applying these principles here, the fact that only a mi- nority of the unit employees were actually members of the Union was known to the Respondent Employer before August 18. The Respondent nonetheless reached agree- ment with the Union on August 18 and did not repudiate the agreement until a week later. Under Auciello, supra, the Respondent could not lawfully refuse to execute the agreed-on contract on the asserted basis of a good-faith 18 329 NLRB 414, 417 (1999). Flying Dutchman Park, Inc., was is- sued after, and with consonant awareness of, Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), on which the Respondent, in good part, relies. 19 517 U.S. 781, 786 (1996). 20 Id. at 791–792. doubt deriving, at least in part, from minority membership in the Union among unit employees which the Respondent was aware of before the parties agreed to the contract. Accordingly . . . we find that the Respondent could not rely on a good faith doubt of the Union’s continued major- ity status as a basis for refusing to execute the August 18 collective bargaining agreement, regardless of whether that asserted doubt was based on circumstances that ex- isted before the parties reached agreement on their con- tract. [Emphasis added.] The above authority makes clear, and I find, that after the Respondent in this matter executed the retroactively effective 1997 collective-bargaining agreement with the Union on Janu- ary 30, 1998, it no longer could lawfully base doubts that it might have had of the Union’s majority status upon factors that had existed before the date when it signed that contract. As quoted above from the Board’s Flying Dutchman Park deci- sion, “the precontractual good faith doubt about the Union’s continued majority status was not adequate to support an excep- tion to the conclusive presumption of continued majority sup- port for the union arising ‘at the moment’ a collective-bargain- ing contract offer has been accepted.” As to the Respondent’s assertion that its questions concern- ing union majority had justified its polling since most unit em- ployees, both before and since January 1998, had not paid dues to the Union, the Board noted in Henry Bierce Co.21 that: With respect to the Respondent’s reliance on the num- ber of employees it claims were not union members, it is well settled that unit employees’ nonmembership in a un- ion does not establish that those employees do not want the Union to be their collective bargaining representative. . . . Employees can have many reasons for desiring union representation but not to be union members. This premise previously had been advanced in Montgomery Ward & Co.,22 as follows: The . . . factor which is that no checkoff authorizations had been submitted to the Company is correct. However, that does not tend to demonstrate loss of union support. In the absence of a union shop provision, particularly in a right-to-work state, “many employees are content neither to join the union [n]or to give it financial support but to enjoy the benefits of representation. Nonetheless, the un- ion may enjoy their support, and they may desire contin- ued representation by it.”9 [Bracketed material added.] _________________________ 9 Terrell Machine Company v. N.L.R.B., 427 F.2d 1088, 1099 (C.A. 4[, 1970]), cert. denied 398 U.S. 929 (1970). Accord: N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5, 1966) [bracketed material added]. The above precedent holds that, since “nonmembership in a union does not establish that those employees do not want the union to be their collective-bargaining representative,”23 the 21 328 NLRB 646, 649–650 (1999). 22 210 NLRB 717, 722 (1974). 23 Henry Bierce Co., above. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166 respondent could not establish a good-faith doubt of the union’s majority status by relying on the number of employees it claimed were not union members.24 In the present matter, the tenuousness of the Employer’s stance, disallowed above in Bierce and Montgomery Ward, in that it pressed forward with its employee poll because only a minority of unit employees previously had paid dues was illus- trated by the Union’s wide margin of success in the January 27 election—86 votes in favor of continued union representation to 17 votes against, with 1 challenged ballot. As noted in Mont- gomery Ward, the desire of certain employees for continued union representation can only be enhanced by not having to pay for it. The Respondent’s good-faith motive in conducting the Janu- ary 27 poll further is brought into question by Rose’s unlawful and/or antiunion statements made after that election which related back to and illuminated his mindset when he forced the vote. Accordingly, in agreement with the General Counsel, I find that Rose, during the March 5 and 11 negotiating sessions, twice violated Section 8(a)(1) by telling the union bargaining committee, which included employees that he would conduct such elections at will in the future. This was unlawful because Rose raised the specter of future company-conducted elections unlinked to any prospective good-faith doubt concerning the Union’s majority status.25 In this regard, Rose’s repeated announcements to the Re- spondent’s employees on the union bargaining committee that he still stood ready, at whim, to again engage in future polling, conduct held to be disruptive of the collective-bargaining rela- tionship and unsettling to bargaining unit employees,26 came in the face of the Union’s strong showing of support in the elec- tion he only recently had conducted. In this context, his reac- tions indicated his difficulty in accepting the results. Rose’s repeated claims of a right to conduct such elections at will in the future also reduces the likelihood that he had felt the need for a good-faith doubt when he announced and held the January 27 poll. Rose’s miscellaneous expressions of hostility to the Union during these negotiating sessions are also germane. During the March 29 negotiating session, Rose confirmed Braun’s testi- mony that he had told the union bargaining committee that if he was the owner he would prefer not to have the Union there; that he would shut down the Company rather than to have to put up with the Union. More specifically, Rose conceded that he had told the union representatives and employees present that if he ever started a business, owned it, and was able to grow it into a company and a union came in, he would feel that he had failed these employees. He would sell the company or close it down. At the March 30 negotiating session, Rose again told the union committee that he personally disliked unions, that he had inher- ited this package, and that, if he was starting up his own shop, he would shut it down before he would let a union in. I agree with the General Counsel that these expressions of animus, 24 Montgomery Ward & Co., supra. 25 Braun contradicted Rose’s denial that he had made such a state- ment during the March 11 bargaining session. 26 Texas Petrochemicals, supra. combined with his other conduct herein, relate back to and detract from Rose’s asserted good-faith reasonable doubt of the Union’s majority status when he staged the January 27 election. To further undermine the Union, Rose sought to expropriate the Supreme Court’s Beck decision, which reserved to employ- ees, not their employers, the right to avoid including in their dues payments moneys that they did not want their union to spend on activities unrelated to its bargaining and representa- tive functions. In this, Rose seized on Beck as grounds for at- tempting to bring about an across-the-board reduction in the basic contractual dues rate27 in exchange for some form of un- ion security. Under Rose’s offer, while it stood, the proffered agency shop had to be agreed to by 75 percent of the unit and, if so adopted, was to be vote-tested every year. There is no evidence that, before Rose had submitted this proposal, he had ascertained the specific desires of any dues-paying unit em- ployees in that regard. However, the idea of an agency shop, even under such strictured terms, apparently was more than Rose could contemplate. He withdrew that proposal at the next bargaining session. In addressing employer statements like Rose’s reiterated as- sertions that it was he who represented the employees in bar- gaining and was their protector against imposition of a union they might not want, the Supreme Court, in Auciello, stated that: “To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not condu- cive to [industrial peace], it is inimical to it.” Brooks v. NLRB, 348 U.S. 96, 103 [35 LRRM 2158] (1954). The Board, ac- cordingly, is entitled to suspicion when faced with an em- ployer’s benevolence as its workers’ champion against their . . . union, which is subject to a decertification petition from the workers if they want to file one. There is nothing unrea- sonable in giving a short leash to the employer as a vindicator of its employees’ organizational freedom. As the U.S. Court of Appeals, Fifth Circuit, similarly ob- served in NLRB v. Schill Steel Products, Inc.:28 We note here, as often is the case in labor cases, the Employer argues valiantly for the right of the “rank and file” to be pro- tected against the imposition of a union they did not want. Counsel for the company eloquently argues that purposes of the Act are frustrated when a union is imposed on employees against their will. What this pious statement overlooks is that . . . the union was selected by a majority of the employees. . . . While such representations are not at all novel arguments by employers before this court, the . . . transformation to real concern for the “free choice” of the employees by the em- 27 Rights created under Beck inure solely to employees who might specifically protest their union’s expenditure of some of their dues moneys for purposes not directly related to representational/bargaining functions, such as political activities, and seek to recover same. Beck does not provide employers with a lever to undercut their employees’ unions by enabling them, as Rose did here, to attempt to negotiate dues reductions. 28 480 F.2d 586, 591 (1973). WISCONSIN PROCELAIN CO. 167 ployers who make these arguments in such cases never ceases to amaze us. Although asserted majority doubts based on events that had occurred before the 1997 collective-bargaining agreement was signed, as noted, could not vindicate the Respondent’s polling of its employees in 1999, the Respondent, relying on the Su- preme Court’s Allentown Mack decision, supra, did introduce evidence of employee complaints against the Union that had been made to management after the January 30, 1998 contract execution date. These were presented as additional grounds for the Company’s doubts concerning the Union’s majority. In this regard, Braun testified to a series of above conversations he had had since January 1998 with employees Duty, Struck, the two Groskreutz brothers, Brown, and Leaf—all of whom had spo- ken to him unfavorably about the Union. Braun also described the telephone call he had received from Angela Morales, the wife of employee Jose Morales, who related that her husband and two female employees, Gonzalez and Hernandez, had been “scared into joining the Union” by unidentified communicants who assertedly had threatened them. Also, Angela Morales complained that Jose Morales, whose use of English was poor, had been lied to by Vivian Mendez, then a union steward and union negotiating committee member, about his right to get out of the Union during the 7-day contractual escape clause period. As a result, he did not learn of this procedure’s availability until it was too late to exercise it. Rose, too, testified with respect to his like above conversation with employee Moe, with certain other unidentified employees, and to unspecified reports from supervision. His principally recalled report from Braun appar- ently had related to Morales. However, the completed record concerning these employee complaints shows that, with the exception of Hernandez who had not physically worked for the Respondent for about 2 months before the election, none of the above-named employ- ees whom Braun described as having spoken adversely to him about the Union since January 1998, or who had been so identi- fied to him in the complaints of others, had been paying dues to the Union—not Duty, Struck, the Groskreutz brothers, Brown, Leaf, Jose Morales, or Gonzalez. Unlike the employees who complained about the Union’s representative status in Allen- town Mack Sales & Service, supra, the asserted employee com- plainants in the present case had not themselves been burdened by any type of union obligation. Since these alleged union- related complaints so pertained to problems and situations that did not exist for the complainant employees, they undermine the significance and likelihood of the described protests. Donny Groskreutz and Jose Morales had little immediate need to learn how to get out of a union to which they did not belong. Debra Struck was depicted as having told Braun that she was a union member because her mother had been one. However, when the facts were more fully developed, neither Struck nor her mother had been union members. Leaf was so bitterly opposed to the Union that he had threatened the General Counsel with violence should she attempt to subpoena him to testify at the trial in this proceeding. The Respondent’s reliance on Allentown Mack is misplaced for a variety of other reasons. The percentage of employees who complained to management about the Union in relation to the size of the overall unit was markedly smaller in the present case than in Allentown Mack. Of the 32 actual unit employees in Allentown Mack, 7 workers, comprising about 22 percent of the unit, provided what was termed direct, “reliable informa- tion.” Added to that figure, the Court cited statements made to Allentown managers by two other employees: (1) the union steward’s declarations that, “if a vote were taken, the Union would lose,” and that “it was his feeling that the employees did not want a union,” and (2) the pronouncement of a night-shift employee “that the entire night shift did not want a union.” The Court concluded that the observations of these employees, which included those of the otherwise prounion steward and, indirectly, the entire night shift, raised the prospect that yet an appreciably larger group of the unit employees no longer wanted the union to represent them. While the Court did not dwell on this, the employer’s doubts in Allentown Mack re- ceived some a postiorari validation from the fact that the union there, unlike here, did not receive majority support in the em- ployer-conducted poll. Here, as noted, however, if their reported complaints were accepted at face value and counted which, under noted circum- stances would be illogical, the number of employees who had expressed their dissatisfaction with the Union to Braun and Rose, both directly for themselves and/or on behalf of other employees, constituted a far smaller percentage of the overall unit. Even hypothetically counting the protests of Duty, the two Groskreutz brothers, Brown, Struck, Leaf, Jose Morales, Her- nandez, and Gonzalez, all of whose antiunion declarations had been filtered directly or indirectly through Braun, and Bruce Moe who had complained to Rose, the Respondent had been made aware of no more than about 10 employee complaints in a stipulated unit of 117 workers. This came to about 8.5 percent of the unit work force. Unlike Allentown Mack where there had been no independ- ent illegality,29 this Respondent’s reasons for holding the Janu- ary 27 election were made manifest both by Rose’s above- unlawful statements made during the bargaining sessions that followed soon thereafter and by the other noted accompanying expressions of his antiunion animus. As Administrative Law Judge Michael D. Stevenson noted in his Board-approved deci- sion in Catalina Pacific Concrete Co.:30 Finally, Respondent contends that it has a good faith doubt of the Union’s majority support and directs my at- tention to the recent Supreme Court decision in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). Allentown Mack did not make new law but merely restated and clarified the law on good faith doubt which had ex- isted for some time. In Catalina Pacific Concrete Co., supra, Judge Stevenson declined to review certain evidence concerning whether that Respondent, in withdrawing recognition from the Union, had acted with a good-faith doubt as to the Union’s majority status because, inter alia, its actions in that direction were “not raised 29 See Strucksnes Construction, Inc., supra. 30 330 NLRB 144, 150 (1999). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168 in a context free of unfair labor practices [citation omitted].” As further noted in Henry Bierce Co.,31 “In Allentown Mack, the Court found that the Board’s ‘good faith reasonable doubt’ test was rational and consistent with the Act.” Finally, the Supreme Court’s Allentown Mack decision, which affirmed the Board’s good-faith doubt test, does not support the Employer’s position for yet another reason. While the Court in Allentown Mack disagreed with the Board’s evaluations of the significance of employee complaints that were asserted bases for that Respondent’s good-faith doubt of continued union majority status, all factors on which the Court did rely there existed in reasonably close proximity to that Re- spondent’s relevant actions. Allentown Mack was factually distinguishable in this way from the present matter where the Respondent affirmatively argues that it had conducted the dis- puted 1999 election in partial reliance on events dating back to 1993 and 1997. Also, as in Catalina Pacific Concrete Co., su- pra, the Employer here conducted the poll unlawfully because Rose did not proceed “in a context free of unfair labor prac- tices.” For the above reasons, I find that, on January 21, when the Respondent respectively announced that it would conduct the January 27 poll, and when it subsequently conducted that poll, it did not have a good-faith doubt of the Union’s majority status. Accordingly, the Respondent violated Section 8(a)(1) of the Act in respectively announcing and conducting that elec- tion.32 C. Other Acts of Interference, Restraint, and Coercion The General Counsel and the Union contend that later, after the current collective-bargaining agreement was signed, the Respondent, principally by its attorney, Russ R. Mueller, but also by its president, Rose, met with and coercively interro- gated various bargaining unit employees, either singly or in groups. These sessions most often took place in Rose’s office, which also served as a company conference room. The General Counsel asserts that, although Mueller’s meetings with em- ployees had been to help the Respondent to prepare for the hearing in this matter, employee attendance at those meetings had not always been voluntary and that the assurances to em- ployees, infra, required under Johnnie’s Poultry Co.,33 had not been given. The General Counsel further contends that the 31 328 NLRB 646, 650–651 (1999). 32 The Respondent’s credibility and good faith in running the elec- tion also were impugned by its other conduct. As found above, it gave different, increasing numbers of reasons with the passing of time for having held the poll. When conducting the election, Rose tried to affect the results by including probationary employees as voters even though the collective-bargaining agreement had specifically excluded them from the unit. With regard to documentation prepared for use at the hearing in order to demonstrate the Union’s long-term minority status during the 3 years before the January 27 election, Rose was forced to concede that he had incorrectly increased the represented size of the unit by including substantial numbers of nonunit employees with the effect that the asserted percentage of dues paying employees appeared to be smaller. 33 146 NLRB 770, 775 (1964), enfd. denied 344 F.2d 617 (8th Cir. 1965). Also see Adair Standish v. NLRB, 914 F.2d 255 (6th Cir. 1990), enfg. in relevant. part 290 NLRB 317 fn. 1 (1988). scope of the Respondent’s interrogation exceeded the scope of permissible questioning in that it went beyond what was re- quired to prepare for trial and also unlawfully inquired into the employees’ dealings with the Union. The Respondent, in denying unlawful conduct, asserts that all employee participation in the relevant meetings had been voluntary and that all necessary assurances had been given. 1. The interrogation of Michael Andreas—facts Michael Andreas34 testified that, in late June 1999, when he brought some purchase orders to Rose’s office for him to sign, which Andreas did two to three times a day, he found Rose looking at a document. Rose told Andreas that he had received “this paper” from the Labor Board on the charges and, holding up the document in his hand, Rose asked if he had said that if he owned a company of his own and the Union wanted to come in, he would close the doors.35 Andreas replied, “Yes,” that Rose had made that statement. Nothing more was said about the paper from the Board. Rose signed the documents and Andreas left the room. Rose related that between June 15 and 25, 1999, he spoke to Andreas while at his desk in plant 1, across the street from his current plant 2 office. Andreas had entered with some purchase orders for Rose’s signature. Rose asked Andreas about the un- fair labor practice complaint that he then had just finished read- ing which alleged, inter alia, that Rose would conduct future polls of unit employees’ representation desires at will. Rose asked if Andreas, because he had been there (as a member of the union bargaining committee), remembered him saying this during the negotiating sessions. Andreas replied that he could not remember. Rose testified that he told Andreas that if he had a chance to do it all over again, he would do it all over again. 2. The interrogation of Michael Andreas—discussion and conclusions Accepting Rose’s account that he had asked Andreas when he entered his office if, as alleged in that complaint, he had told the union negotiating committee that he would conduct future polls of employees’ representational desires at will, his de- scribed questioning of Andreas was a violation of the Act. In Johnnie’s Poultry Co.,36 the Board, in relevant part, en- abled an employer to ascertain from its employees facts neces- sary to enable it to prepare for trial. However, such interroga- tion must be necessary for that purpose and, to minimize the interrogation’s coercive effect on employees, the following safeguards must be followed: [T]he employer must communicate to the employee the pur- pose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the 34 Andreas was employed by the Respondent in its machine shop, making, repairing and ordering dies, from August 1, 1984, to Novem- ber 13, 1999, when he left to pursue another job opportunity. Andreas, while with the Respondent, had served as union vice president and, during his last 2 years there, as a union steward. As a bargaining com- mittee member, he also participated in negotiations for the 1999–2000 collective-bargaining agreement. 35 Rose did not show the paper to Andreas, he just held it up. 36 146 NLRB at 774–775. Also see Le Bus, 324 NLRB 588 (1997). WISCONSIN PROCELAIN CO. 169 questioning must occur in a context free from employer hos- tility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of legitimate purpose by prying into other union matters, elicit- ing information concerning an employee’s state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safe- guards, he loses the benefits of the privilege. [Footnotes omit- ted.] Here, Rose variously failed to meet the Johnnie’s Poultry re- quirements. As the General Counsel pointed out, Rose did not advise Andreas of the purpose of the questioning or obtain his participation on a voluntary basis. Also, Rose’s interrogation did not occur in an atmosphere from union hostility. By the time of this June 1999 incident, Andreas, as a member of the union negotiating committee, had attended the above-described postelection bargaining sessions during which, as found, Rose had repeatedly vented his hostility to the Union to Andreas and the other employees on the union bargaining committee. As noted, certain of Rose’s remarks during those meetings have been found to be unlawful. For these failures to meet with the requisite standards, I find that Rose, in interrogating Andreas, whether in the manner described by Andreas or by Rose, himself, violated Section 8(a)(1). In so concluding, I find no merit to the Respondent’s argu- ment that the above finding of illegal conduct is precluded by the limitations period contained in Section 10(b) of the Act. Section 10(b) provides in relevant part that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.” The Respondent, in arguing that the incident concerning An- dreas fell outside this limitations period, points out that while the event took place in June 1999, the first amended charge, which alleged the matter as violative, was not filed with the Board’s Regional Office until February 8, 2000, approximately 8 months after the relevant interrogation was to have occurred. As the Board held in Ross Stores, Inc.,37 while the relevant charge, standing alone, was not timely filed within the chrono- logical period prescribed by Section 10(b), the allegation can survive a 10(b) challenge only if “closely related to” the allega- tions in the original, timely filed charge. In Ross Stores, the Board reiterated its test for determining whether allegations are closely related, as previously summarized in Nickles Bakery of Indiana:38 37 329 NLRB 573, 573–574 (1999), enfd. denied 235 F.3d 669 (D.C. Cir. 2001). It is noted that the court of appeals did not enforce the Board’s decision in Ross Stores, Inc., supra. In Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984), the Board noted that the administrative law judge had “improperly relied on courts of appeals decisions instead of initially considering relevant Board decisions on the issues presented” and emphasized that “it is a judge’s duty to apply established Board precedent which the Supreme Court has not reversed. Iowa Beef Pack- ers, 144 NLRB 615, 616 (1963).” Accordingly, I am bound by the Board’s precedent. 38 296 NLRB 927, 928 (1989). First, the Board will look at whether the otherwise untimely allegations involve the same legal theory as the pending timely charge. Second, the Board will look at whether the otherwise untimely allegations arise from the same factual circumstances or sequence of events as the pending timely charge. Finally, the Board may look at whether a respondent would raise similar defenses to [the] allegations. [Footnotes omitted.] Under the foregoing test, the Board generally has found that there is: [A] sufficient relationship between the charges and [subse- quent allegations] in circumstances involving “acts that are part of the same course of conduct, such as a single campaign against a union,” and acts that are all “part of an overall plan to resist organization.” Furthermore the Board will find a sufficient factual re- lationship “whether or not the facts are of precisely the same kind and whether or not the charge specifically al- leges the existence of an overall plan on the part of the employer.” [Footnotes and citations omitted.] Rose’s interrogation of Andreas flowed directly out of the original charge and complaint in this consolidated matter. The latter document alleged that the Respondent had conducted an unlawful poll among its employees concerning their desires to be further represented by the Union and that the Respondent also unlawfully had stated that it would conduct such employee elections at will in the future without stated regard to whether it should have an objectively warranted good-faith doubt of the Union’s majority at that time. Since Rose had questioned An- dreas as to whether he, in fact, had engaged in conduct alleged to be unlawful in that complaint, this interrogation flowed di- rectly from the initial complaint, issued pursuant to the original timely-filed charge. Accordingly, the General Counsel’s pursuit of that matter is not barred by Section 10(b). 3. The February 2000 interrogations—facts a. The first February 2 group meeting The record shows that on February 2, 2000,39 bargaining unit employees Catherine Schoenherr, Jeanne Ertz, Kathy C. Frentzel, Ruben Sloss, Tim Guiliano, and Russell Broil were told by their supervisors to collectively meet in Rose’s office with the Respondent’s attorney, Russ R. Mueller. Scott Able- man, a company manager40 whose desk was located in that room, also was present at the time. 39 While there was some conflict in the testimony as to whether the relevant incident occurred on February 2 or 3, the weight of the evi- dence supports the February 2 date. 40 Ableman, still with the Respondent as senior planner, has been with the Company since February 1997. He was second in authority there to Rose, with whom he shared the plant 2 office/conference room where Mueller met with the employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170 Schoenherr41 testified that when she and Frentzel entered Rose’s office at the appointed time, Mueller, Ableman, Broil, Sloss, and Guiliano already were there. Ertz was the last to arrive. The employees sat at a table and talked among them- selves while Mueller looked at some papers. Just before the meeting began, Ableman asked if he should leave. Mueller told him that he did not have to. Rose, who had been outside the office talking to other employees, poked his head through the door during the meeting and asked if he should stay. Mueller told him no. Mueller then introduced himself as Russell Muel- ler, the lawyer for the Company, stating that he had represented the Wisconsin Porcelain Company since 1969 with respect to negotiations and other labor relations matters. At Mueller’s request, the employees gave their names. Schoenherr related that Mueller then asked if the employees remembered that the Company had taken a poll in 1999. The employees answered that they did. Mueller told them that the Union had brought Scott Rose up on charges; was suing him for having taken this poll; and that “we” have to go to court on February 16.42 Mueller asked if the employees remembered the Union’s recruitment drive for new employee members back in 1997. Some answered yes. Schoenherr responded that the em- ployees had been concerned about job security and wages. Mueller asked if the Union had done anything wrong during this drive like intimidating people, making harassing statements and other things to force the employees to join the Union. Most said no. Mueller then asked if the employees could recall what had happened when the union people had gone door to door to their homes. Broil responded that the Union had come to his house. Mueller asked if the union representatives had made any threatening or harassing statements. Broil answered that they had not harassed him or anything like that. Mueller next in- quired if there had been any mention of wage cuts at the time to make the employees join the Union. Schoenherr replied no, there had been no mention of wage cuts whatsoever. Mueller then asked if anybody wanted to talk to him or Rose in a private meeting. Otherwise, there was nothing more to say and the employees could leave. Guiliano asked what would have hap- pened if a sufficiently large percentage of the people did not want the Union there. Schoenherr told him that that was after the fact; it was done and over with. What might have happened did not matter right now because the vote for the Union had been overwhelming. That had not happened, so why bother asking about it. Mueller agreed with Schoenherr on this point and thanked the employees for coming. The employees left the meeting at around 12:45 p.m. Schoenherr had not noticed whether Mueller, during that ses- sion, who had done all the talking for the Company, was read- ing his questions. She denied that Mueller, during that session, 41 Schoenherr, still employed by the Respondent at the time of the hearing, was a lead person in the dry press department. She had begun her employment with the Respondent on March 23, 1976, and had held no union office. Schoenherr’s testimony concerning this meeting, which was the most detailed and assured, is combined with Ertz’ like account, except as indicated below. 42 The referenced hearing in this matter subsequently was continued to a later date. had told the employees that participation in the meeting was voluntary; that they should not expect any reprisals if they chose not to talk to him; or that they should not expect to re- ceive some benefit for agreeing to talk with him. While Schoenherr denied that Mueller had told the employ- ees at the February 2 meeting that their participation there was voluntary and/or that they would receive no benefits for partici- pating or suffer no reprisals if they did not, Ertz43 could not recall whether he had made such statements. Ertz related that Mueller did not hand out any papers or have the employees sign anything during the course of that meeting. Frentzel44 generally agreed with Schoenherr as to the intro- ductory and substantive aspects of the February 2 session but, contrary to Schoenherr, testified that Mueller had started the meeting by telling the employees that their participation there was voluntary. Mueller then stated that he wanted to ask ques- tions about the union drive in 1997. He asked whether the Un- ion had threatened the employees in any way, whether the Un- ion had promised them anything, whether the Union had told the employees that there would be repercussions if they did not join the Union and whether union representatives had told em- ployees that their jobs would be jeopardized if they did not join the Union. He also asked if the Union had promised the em- ployees anything. Frentzel remembered that Schoenherr and Ertz had talked about the drive in terms of wages and security. Frentzel did not recall much about that union membership cam- paign because a month after it started, in October 1997, she went on maternity leave and did not return to work until March 1998. Frentzel, as noted, testified on direct examination that Muel- ler had advised the employees that their participation in that meeting was voluntary. However, she could not recall whether Mueller’s references there to “benefits” and “reprisals” were made in a context of assurances that the same would not be applied to the employees regardless of whether they chose to participate in the meeting, or whether those words were used in the effort to determine what the Union may have told the em- ployees when Mueller questioned them about the Union’s con- duct during the 1997 drive. Frentzel could not recall whether Mueller had said that anybody who chose to leave was free to do so. However, no one did leave. Frentzel, too, agreed that no documents or pieces of paper were handed out during the Feb- ruary 2 meeting. On cross-examination, Frentzel was even less assured. She still could not recall Mueller having said during the February meeting that she would not be benefited in any way for refusing to answer questions. She again could not recall if Mueller had used the word “retaliation” at that session when asking about what the Union had said to the employees during the drive or as an assurance against what the Company might do if an em- ployee should decide not to participate in the meeting. Accord- 43 Ertz, still employed by the Respondent as a laborer in the media department at the time of the hearing, had begun to work there on June 6, 1984. While the Union represented her, she had held no office within that organization. 44 At the time of the hearing, Frentzel, a dry press operator, had been in the Respondent’s continuous employ since September 7, 1992. WISCONSIN PROCELAIN CO. 171 ingly, while Frentzel could not remember whether Mueller had provided assurances against reprisals or retaliation at the Feb- ruary 2 meeting, he did state that the workers’ participation there was voluntary. Except for this, Frentzel could not recall having received any further assurances from Mueller on that occasion. Mueller did not testify concerning this event, but Ableman did. Ableman, as noted, had been at that meeting because he then had been working at his desk, situated about 2-1/2 feet from the conference table where the employees were seated. Ableman testified that, after Mueller had introduced himself to the employees as the Company’s lawyer and announced that he was there because Scott Rose was being sued, he told the em- ployees that they were there voluntarily and that they could leave if they wanted to. Nobody left. Mueller did tell the em- ployees that there would be no benefits or reprisals from the Employer about this. Mueller then asked their names which the employees gave. Ableman, who went on with his work during this meeting, paid only intermittent attention. He agreed that most of the discussion that he did hear was about the Union’s “1997 drive.” Ableman did not attend Mueller’s second group meeting with employees that day. b. The second February 2 group meeting To support its position that Mueller had given the required Johnnie’s Poultry assurances to employees at the above-earlier February 2 meeting, described by Schoenherr, Ertz, Frentzel, and Ableman, the Respondent presented Gary P. Leaf’s45 testi- mony concerning a similar interview that Mueller had had with another group of employees about an hour later on that same day. Leaf testified that on February 2, 2000, at 12:50 p.m., Muel- ler met with him, Betty Elgersma, Henry Alschwager, Bruce Johnson, and other unrecalled bargaining unit employees in the plant 2 office/conference room. Mueller opened the meeting by introducing himself as the attorney who had been representing Wisconsin Porcelain for years, dating back to the former man- agement. Mueller then announced that Rose was being sued and that he wanted to ask the employees a few questions about the Union’s drive in 1997. The employees were told that they could leave the room at any time they wanted. The employees all stayed. Mueller also told the employees that they would not be benefited or hurt “from this.” When Mueller asked about the Union’s 1997 drive, Leaf stated that he did not appreciate the Union coming to his home. Some of the others agreed with this. That was all that Leaf could remember of this session. Leaf related that counsel for the General Counsel in this case had called him at his home on Sunday, February 6, after the above meeting with Mueller. When Leaf took the telephone receiver from his wife, he was not certain who was calling. When the General Counsel then questioned him about the Feb- ruary 2 meeting, asking who was at that meeting and what had been said, Leaf replied that he could not give her that informa- 45 Leaf, still employed by the Respondent as a lead mechanic at the time of the hearing, had been with the Respondent since April 30, 1979. tion because it was confidential. The General Counsel had per- sisted in her query as to who was at that meeting and what had been said. She wanted to know “now” or she would subpoena him. Leaf told the General Counsel that he had been ordered to jury duty and, for that reason, did not want to be subpoenaed. Leaf, under cross-examination, did not recall whether the General Counsel had asked him during that call if Mueller had said anything in that meeting about retaliation, repercussions, reprisals, or whether he had told the General Counsel that he would not say anything to hurt the Company. He did remember that he repeatedly had asked the caller if she represented the Company or the Union; that he had told her that he was for the Company 100 percent; and that he would not be willing to pro- vide an affidavit. When Leaf asked if he would be required to testify at a trial, the General Counsel stated that that was possi- ble. Leaf’s response to this was, “I don’t want to testify or be subpoenaed. I will shoot whoever gets in front of me.” Leaf admitted that he had had a few drinks that day and that the al- cohol had affected his answer. Leaf’s statement about shooting had drawn a February 16 Regional Director’s cautionary letter. Leaf agreed with the above-quoted representation of his re- marks as contained in that letter and with the General Counsel’s expressed view, reiterated therein, that Leaf’s comments had been made in the heat of the moment and were an exaggerated response. c. The interrogation of Michael Stohl—facts Michael Stohl46 testified that he was called to a private meet- ing with Mueller in Rose’s conference room/office on February 2, 2000. The initial summons had been delivered earlier that morning by Stohl’s supervisor, Frank O’Connor, who told him that Rose wanted him to attend a meeting at 12:30 that after- noon. When Stohl reminded O’Connor that he had a business- related meeting at 12:30, O’Connor replied that the meeting could be later. At 1:15 p.m., as Rose passed through the plant, he told Stohl that he would like him to talk to Russ Mueller. Stohl then left for that meeting. Stohl related that Mueller introduced himself as Russ Muel- ler, the Company’s attorney since 1969. Mueller told Stohl that the conversation was voluntary, he did not have to talk to him. There would be no benefits or reprisals; it would not affect his job either way if he did or did not talk to him. Mueller then mentioned the 1999 poll and stated that Rose and the Company were being brought up on charges. When Mueller asked if Stohl remembered the poll, he said yes. He then asked if Stohl re- membered the 1997 drive for the Union. Stohl replied that he kind of remembered, but not any specifics. Mueller told him that if he did not remember anything about that drive, then “our conversation is through.” Stohl then left. The first time Stohl was asked to sign anything was when he again met with Muller on February 14. On this occasion, he signed a document stating that his first meeting with Mueller had been voluntary. 46 Stohl, an hourly rated bargaining unit employee, had been em- ployed in the Respondent’s engineering department since November 1975, where he designed and built items of equipment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172 What transpired at Mueller’s February 14 meetings with cer- tain employees follows. d. The February 14, 2000 interviews—facts The General Counsel presented evidence of two followup February 14, 2000 conversations which Mueller conducted separately with employees Frentzel and Leaf, both of whom had attended the February 2 sessions. The February 14 meet- ings related back to what had occurred on February 2. The General Counsel does not contend that what Mueller said to these employees during either of the developed February 14 conversations was independently unlawful. Frentzel testified that when on February 14, she again was called in to meet with Mueller, she saw him alone in a different room than before. When Frentzel entered, Mueller asked her full name told her that he was going to read with her the last page of a statement that had been pretyped. If she understood, then that’s fine. He wanted her to know that this was totally voluntary. She would not be benefited by participating that day and, if she did not want to, she did not have to. Mueller asked if Frentzel understood. When she answered “yes.” Mueller told Frentzel that he was going to try to keep this simple and try not to confuse her. He told her to read each of the paragraphs, one through eight, of this previously prepared statement. This docu- ment, which Frentzel then saw for the first time, was as fol- lows: 1. You have been asked to meet with me, Russ Muel- ler, again with regard to an unfair labor practice Charge that was recently filed by the Union against WPC. 2. I am the attorney representing WPC with regard to the Charge. 3. This charge relates to the group employee meeting I had with you on February 2, 2000. 4. I will be asking about your recollection of my com- ments to the group at that meeting. 5. This recollection will be used to support WPC’s de- fense to the Union’s unfair labor practice Charge. 6. Your participation in this is completely voluntary on your part. 7. You should expect no benefits for voluntarily agree- ing to talk with me about this. 8. Likewise, there will be no reprisals of harm and/or adverse consequences relating to your employment with WPC should you choose not to talk to me about this. The above eight (8) statements have been read to me by Mueller and I elect the following: ______Voluntarily agree to talk with Mueller about this specific matter; that is, my recollection of com- ments Mueller made to the employee group meeting on February 2, 2000. ______Choose not to further participate. [Two lines atop of each other followed for signature and date, respectively.] After Mueller had read this document to her, Frentzel checkmarked the bottom line indicating that she had voluntarily agreed to talk with Mueller, signed and dated the document. Mueller then took out a yellow pad, wrote Frentzel’s name on it and asked if she was an employee of Wisconsin Porcelain. When she said yes, Mueller started paragraph 2 and asked if on Wednesday, February 2, 2000, they had talked about this and whether she had said that. When Frentzel said either yes or no, he wrote it down. Mueller finally produced the handwritten statement shown below, to which the checkmarked, signed and dated pretyped statement was appended: Kathy C. Frentzel, voluntarily gives the following statement: 1. I am an employee with Wisconsin Porcelain Company. 2. On Wednesday, February 2, 2000, I met with Russ Mueller together with several other em- ployees in the conference room in Plant 2. Kathy C. [sic], Jean E., Rubin S. and Russell Broil were the other employees in the group. Tim G. was also a part of the group. 3. At the outset of the meeting, Mueller told us that our participation was voluntary, that we should not expect to be benefited if we do participate and that we should not expect it to be counted against us in relation to our job if we did not par- ticipate. Mueller said that anybody who did not want to stay could leave. No one left. 4. Mueller said that he wanted to talk to us about when the Union recruited new members in the Union in 1997, October. This is the only thing that was talked about in the group meeting. Mueller’s questions related to the Union repre- sentatives’ part in this recruiting. 5. Mueller identified himself as the attorney for WPC. The above statement of five (5) paragraphs was read to me by Russ Mueller and read by me for accuracy and I voluntarily state that this information and statement is true and correct to the best of my knowledge and belief and that I voluntarily sign this Statement as below. I under- stand that I am under no compulsion to sign this Statement and that I will not be benefited in my employment for hav- ing signed the Statement. /signed/ Kathy C. Frentzel Date 2–14–00 Although Frentzel agreed that she had read the above Febru- ary 14 statements during her meeting that date with Mueller before signing them, these February 14 documents did not re- fresh her recollection that Mueller, on February 2, actually had provided all of the assurances described in paragraph 3, above, of her later signed handwritten statements. Accordingly, Frentzel still could not recall whether Mueller, on February 2, had stated that there would be no reprisals or retaliation. Except for his statement of voluntariness, she could not recall that he, at any time, had given the other assurances set forth above in paragraph 3 of the handwritten statement. WISCONSIN PROCELAIN CO. 173 On February 14, 2000, Mueller also met privately with Leaf. The format and substance of this meeting essentially was the same as that between Mueller and Frentzel. When Leaf arrived at the meeting room, he was presented with the same above-quoted pretyped statement as had been shown to Frentzel. Leaf checkmarked the line indicating his voluntary agreement to talk with Mueller and signed and dated the document. Mueller then asked Leaf a series of questions, writing down Leaf’s answers in the form of a statement that Leaf, too, was asked to sign. This handwritten statement, with its emphasis on the assurances that Mueller had given the em- ployees with whom Mueller had met on February 2, when Leaf was present, concerning voluntariness and the absence of prom- ises of benefit or threats of reprisal concerning employee par- ticipation, was essentially the same in substance and format as the above written declaration signed that date by Frentzel. e. The parties’ positions The Respondent contends, from the testimony by Ableman, Leaf, and Stohl that Mueller had given the necessary Johnnie Poultry assurances to the employees present at all of February 2 meetings. The testimony of Leaf and Stohl to the effect that the required assurances had been given at the later sessions that day reinforced the Respondent’s assertion that, contrary to Schoen- herr, Muller had provided such assurances during the first Feb- ruary 2 meetings, as well. The General Counsel, in turn, contends that she did not have to prove that the Respondent had violated the Act during its every meeting with employees to establish that it had done so in the course of the contested interview.47 The General Counsel further notes that the record indicates that Leaf, in his initial description of this meeting, did not testify that Mueller had informed the employees that their participation there was vol- untary and that no benefits would be bestowed or reprisals taken against them because they did, or did not, cooperate. Pointing out that Leaf’s testimony that Mueller had given the relevant assurances had come later only in response to coun- sel’s leading questions, the General Counsel argues that Leaf’s attestations that the required assurances actually had been given had resulted from “coaching.” Accordingly, testimony so de- rived should not be credited. The General Counsel further argues that the Respondent, in questioning the employees about the Union’s 1997 organizing drive, exceeded the scope of permissible inquiry necessary to prepare for hearing. 4. The February interrogations—discussion and conclusions In resolving the factual issues concerning what had occurred during the first February 2 meeting between Mueller and a group of the Respondent’s employees, I credit Schoenherr’s testimony because it was the most detailed and assured descrip- tion of the entire meeting. Her account generally was supported by Ertz. Schoenherr was candid about her prounion bias and 47 The General Counsel does not argue that all Respondent’s em- ployees so interviewed by Mueller had not been given the required assurances. The alleged unlawful conduct in this regard relates only to those incidents she has presented. was consistent in her account. Ableman, on the other hand, except for supporting the Respondent on the key matter of whether the requisite Johnnie’s Poultry assurances had been given, recalled little of what had taken place. In crediting Schoenherr’s account of this meeting over that of Ableman, it is noted that Schoenherr, when she testified, was employed by the Respondent. The Board long has held that “the testimony of current employees, which contradicts statements of their super- visors, is likely to be particularly reliable because these em- ployees are testifying adversely to their economic interests.”48 Frentzel’s recollection of what took place was considerably less detailed than that of Schoenherr. While Frentzel consis- tently testified that Mueller had told the employees that their participation in that meeting was voluntary, her above-noted inability to remember statements concerning the context in which Mueller used the terms “benefits’ and “reprisals” de- tracted from the weight that can be afforded to her testimony, particularly when compared to Schoenherr. While Leaf’s otherwise sketchy description of Mueller’s second February 2 meeting with employees provides some indication that certain Johnnie’s Poultry assurances also might have been given at the first meeting attended by Schoenherr, Ertz, Frentzel, and the others, that illation based on what had happened elsewhere at a somewhat later time does not over- come Schoenherr’s direct testimony with respect to what Muel- ler had said in her presence. I agree with the General Counsel that Leaf was not an impressive witness. He had threatened violence to obstruct the General Counsel’s investigation and his testimony that the important Johnnie’s Poultry assurances had been given lacked spontaneity. However, since the meeting attended by Leaf was not a part of the General Counsel’s direct case, I see no need to go beyond my above determination that Leaf’s limited account of the February 2 session he had at- tended, as it might bear upon the earlier such meeting, was not of sufficient weight to disprove Schoenherr’s clear account of what Mueller had said to employees in her presence. Although Stohl testified that Mueller, when he met with him, in effect, had given the Johnnie’s Poultry assurances about his participation being voluntary and free from promises of benefit or threats of reprisal, from the sum of his testimony, I cannot find that his cooperation at that meeting actually had been vol- untary. Stohl related that he had known to go to the meeting with Mueller in the first instance because his supervisor had told him that Rose would like him to do so. Rose, when he later passed by, repeated this. Since neither the supervisor nor the Respondent’s CEO, Rose, in successively telling Stohl to meet with Mueller, had asked if he wanted to do so, Stohl, in practi- cal terms, could not have declined to attend without taking an initiative defiant of both his immediate supervisor and his em- ployer’s highest official. The Respondent violated Section 8(a)(1) by compelling Stohl to meet with Mueller. Mueller apparently had felt a need to cover his conduct at these initial meetings by calling in the various employees for 48 Flexsteel Industries, 316 NLRB 745 (1995); Gold Standard En- terprises, Inc., 234 NLRB 618, 619 (1978); and Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961), enfd. in relevant part 308 F.2d 89 (5th Cir. 1962). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174 followup interviews on February 14 so that, at his request, they could certify in writing the propriety of his February 2 meetings with them. Accordingly, from the credited evidence, I find the Respon- dent violated Section 8(a)(1) because when questioning Schoenherr, Frentzel, Ertz, and the other employees at the first February 2 meeting in preparation for this hearing, Mueller did not give them the assurances required under Johnnie’s Poultry, supra. Specifically, he did not inform those employees that their participation there was voluntary and did not assure them that no benefits would inure to them if they did cooperate in the interview and that no reprisals would result if they did not.49 The Respondent further violated Section 8(a)(1) under Johnnie’s Poultry by Mueller’s broad questioning of these em- ployees concerning matters that exceeded “the necessities of legitimate purpose” of trial preparation. In this regard, Mueller went beyond the scope of permissible questioning by asking the employees about the details of the Union’s organizing drive in the autumn of 1997, including what the union representatives said to them at that time. Johnnie’s Poultry, inter alia, prohibits employers from “prying into other union matters.”50 Mueller’s encroachment in this regard, when it occurred, also was unnec- essary to prepare for a trial where the principal alleged issue was its announcement and conduct of the January 27 election. As noted, that campaign predated the Respondent’s execution of the 1997 contract. The Company had signed that agreement in spite of any claimed hesitancy that that drive might have inspired. Accordingly, for reasons detailed above, the Respon- dent cannot validly use that campaign as a justification for hav- ing held that election. In any event, the Respondent could hardly have based objective considerations to warrant an elec- tion it had conducted in January 1999 upon information it first sought to obtain about the 1997 campaign during the February 2000 interviews. 5. The February 2000 individual interrogations a. David Schwark—facts Schwark51 testified that Mueller privately questioned him about the January 1999 poll in Rose’s office on February 3, 2000, at 1:30 p.m. That morning, Schwark’s supervisor, Tom Kozlowski, told him that there was an attorney for Wisconsin Porcelain here “to ask questions about the poll that we had.” Kozlowski told Schwark that his name had been brought up so that he could be asked some questions, but that he did not have to go if he did not want to. When Schwark replied that he did 49 Le Bus, 324 NLRB 588 fn. 4 (1997). Also see Adair Standish v. NLRB, supra. 50 NLRB v. Blankenship & Associates, Inc. (7th Cir. 2000), Nos. 98- 3422 and 98-3884 (unpublished). Also see Adair Standish v. NLRB, supra, and L & L Wine & Liquor Corp., 323 NLRB 848, 853 (1997). In L & L Wine, the Board found that the respondent, in an interview osten- sibly for trial preparation, had exceeded the necessities of legitimate purpose by inquiring as to its employees’ union sympathies. The re- spondent’s questioning of employees in this regard in that case, as here, “were not shown to be reasonably designed to obtain relevant evidence for use in the unfair labor practice hearing.” 51 Schwark, still with the Respondent at the time of the hearing, has been employed as a mechanic since March 26, 1985. not want to, Kozlowski left. A half-hour later, Rose appeared at his workstation and asked, “[W]hy don’t you want to?” Schwark explained that it was because he did not like talking in large groups, but that he would talk to “him” one-on-one. Rose told him, okay, he would let Schwark know of the time. At 1:30 p.m., Rose returned and said that it was time. Rose accompa- nied Schwark to his office, introduced him to Mueller, and then left, leaving them alone. According to Schwark, Mueller introduced himself as a long- time attorney for Wisconsin Porcelain and announced that he was there “because of the poll that we had and that the Union did not think it was right for Scott to do that, so they were go- ing to sue him.” Mueller then told Schwark that he did not have to answer the questions he was going to ask him if he did not want to. Mueller then asked what the union people had said to him when they were going around for that drive.52 Unlike other such interviews, Mueller did not ask if the union representa- tives had approached him at home. Schwark replied that they just had wanted to know why he had not joined the Union. If they did not get enough people to join the Union, the plant would do whatever “they” wanted. Schwark had told the union people that he really did not care because he was not in the Union. When Mueller asked was that it, Schwark answered yes. Schwark then volunteered that Scott Rose did things that he shouldn’t, to which Mueller replied that that was beside the point at that time. Schwark then left. During that meeting, which lasted about 5 to 10 minutes, Mueller did not give Schwark any papers and did not ask him to sign anything. Schwark denied that Mueller had told him at any time during their conversation that his talking to him was completely volun- tary; that, if he chose to talk to him, Schwark should not expect any benefit from the Company; or that he should not expect any reprisal from the Company for not talking to him. Mueller did not say that there was going to be a hearing on the above- referenced union-brought suit. Mueller did tell Schwark that he did not have to answer the questions he was going to ask him if he did not want to. b. David Schwark—conclusions From Schwark’s uncontradicted testimony, I find that the Respondent violated Section 8(a)(1) in several respects. First, Schwark’s participation in the meeting with Mueller hardly can be considered voluntary. Thirty minutes after he had affirma- tively exercised the option his supervisor had given him of not meeting with the Company’s attorney if he did not want to by so telling Kozlowski, Schwark found it necessary to personally explain to the Company’s highest-ranking official, Rose, why he did not want to do so. Whether Schwark, as he explained to Rose, actually had been willing to meet with the attorney if other employees were not present, or actually had not wanted to meet with Mueller at all, begs the issue. Schwark had given his spontaneous answer as to whether he wanted to meet with the Respondent’s counsel when, in direct response to Kozlowski’s afforded choice, he declined the meeting. Had the Respondent accepted Schwark’s stated preference, voluntarism would have 52 In asking about the Union’s drive, Mueller did not identify the year in which it was to have occurred. WISCONSIN PROCELAIN CO. 175 been respected. However, when Rose appeared at Schwark’s workstation a short time later, specifically to have Schwark explain why he did not want to go there, the Respondent ap- plied unlawful pressure. It would have been difficult for Schwark to have continued to refuse to participate in such a meeting in his employer’s office during work hours when his employer’s senior-most official was so confronting him on the matter. Accordingly, the Respondent violated Section 8(a)(1) by effectively compelling Schwark to attend the February 3 meeting. Second, as the General Counsel pointed out, the only assur- ance that Mueller gave to Schwark during their time together was that he did not have to answer any of the questions that Mueller was going to ask him. Schwark, who alone described that meeting, did not testify that Mueller had told him he was free to leave the meeting if he so desired and that, if he did so, no reprisals would be taken against him. Also, there is no show- ing that Mueller had told Schwark that he would receive no benefits if he participated in the meeting and would not be pe- nalized if he did not. By Mueller’s failure to provide such noti- fication and assurances, as required under Johnnie’s Poultry, the Respondent violated Section 8(a)(1).53 Finally in this regard, the Respondent, as it had during the February 2 interrogation of other employees, as found above, and for the same reasons, exceeded the scope of permissible questioning by asking Schwark what union representatives had said to him during its 1997 drive. By so doing, the Respondent further violated Section 8(a)(1) of the Act. c. Susan Reyes—facts Susan Reyes54 and Rose both testified that Rose had ques- tioned her in Ableman’s presence on February 28, 2000, at 11 a.m. Reyes related that she had been at work that day when Rose asked if he could talk to her for a few minutes in the con- ference room. Reyes shut off her machine and radio and joined him. Ableman already was there when they arrived. Rose closed the door and they sat down. Reyes related that Rose told that “this information was voluntary; that she did not have to answer the questions if she did not want to. There would be no reprisals; it would not affect her working there.” According to Reyes, Rose then asked if she had participated in, or knew anything about, the Union’s 1997 drive. Reyes replied that neither she nor Vivian Mendez, then also a steward, had had anything to do with it. They did go to one of the meet- ings on a night when Mendez and Reyes had known that the union representatives had been out on the drive just to see how things had gone, but they had no idea what the union represen- tatives had said or what they had done. They did not even ask. Rose then inquired if Reyes had been on any drives since then. When Reyes answered yes, Rose asked if she would describe 53 L & L Wine & Liquor Corp., supra; Le Bus, supra. 54 Reyes, employed as a cutter, initially went to work for the Re- spondent in August 1995. After leaving the Respondent’s employ in April or May 1998, she returned in June 1998 and has been continu- ously employed there ever since. From 1995 until the week before her testimony, she also had served as chairperson union steward, or chief steward, which position she had resumed when rejoining the Respon- dent. what she had done on them at the time. She declined to answer, stating that it would not be right to do so. Rose thanked her and said that he did not blame her for not answering. She said that the “basically nice conversation” lasted at least 15 minutes. Rose’s account of this conversation did not significantly differ from that of Reyes. Ableman had said nothing during its course. d. Susan Reyes—conclusions From the above-like accounts, I find that the Respondent re- spectively violated Section 8(a)(1) by Rose’s interrogation of Reyes concerning the Union’s 1997 recruitment drive and about the other union drives in which she had participated. Once again, the “necessities of the legitimate purpose” of trial preparation were exceeded by Rose’s “prying into other union matters.”55 Rose’s conduct in this regard is not redeemed either by Reyes’ refusal to answer his questions on this topic or by his not having pressed her to answer them and, thereby, become even more deeply involved.56 6. The coerciveness of all the February 2000 interrogations–conclusions Johnnie’s Poultry further requires that, in allowing employ- ers to interview their employees to investigate complaint issues in preparing their defense, the employers’ “questioning must occur in a context free from employer hostility to union organi- zation and must not itself be coercive in nature.” In Blankenship,57 where criteria for coercive interrogations were summarized, the U. S. Court of Appeals, Seventh Circuit, found that: [T]he background setting of the questioning suggest that a finding of coercion was reasonable. The Company and the Union had a fairly hostile relationship in light of the Com- pany’s prior unfair labor practices and the attempts to decer- tify the Union. See NLRB v. Champion Lab, 99 F.3d 223, 227 (7th Cir. 1996) (company hostility toward union is a factor to consider). Additionally, the questioning was being conducted by . . . the Company’s labor consultant . . . See Central Transp. [v. NLRB], 997 F.2d [1180] at 1189 [7th Cir. 1993] (identity of the questioner is a factor to consider). Finally, the employees were summoned at work to be questioned. See Champion Lab, 99 F.3d at 227 (setting of questioning is a fac- tor to consider). In light of these factors, we find that Blankenship engaged in coercive questioning [Bracketed ma- terial supplied.] From the above authority and consistent with the determina- tions made herein, I further find that the Respondent’s various above interrogations of its employees in February 2000 all were coercive. The Respondent’s relationship with the Union had been marked by hostility. It has been found above that the Re- spondent violated Section 8(a)(1) by respectively announcing and conducting the January 27, 1999 election among its em- ployees without having a good-faith doubt of the Union’s ma- 55 Johnnie’s Poultry, supra; NLRB v. Blankenship & Associates, Inc., supra. 56 NLRB v. Blankenship & Associates, Inc., supra. 57 Id. at slip op. 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176 jority status in order to get rid of it. The Respondent further violated the Act by thereafter telling its employees on the union negotiating committee that it would conduct other such elec- tions in the future at will without the necessary qualifications concerning doubts of majority. The Respondent also violated Section 8(a)(1) of the Act by its noncompliance with the re- quirements of Johnnie’s Poultry in failing to provide certain of its employees with the above-described assurances against re- prisals or promises of benefit when it interviewed them in preparation for the trial of this matter; in mandating that certain employees participate in such interviews without regard to whether they wanted to do so; and in exceeding the permissible scope of inquiry during those interviews by asking about the Union’s 1997 organizing campaign. In addition to the above-found violative conduct, the Re- spondent displayed a continuing pattern of hostility to the Un- ion. Rose repeatedly informed the union negotiating committee that it was he who represented the bargaining unit employees and that if he owned and had built the business and a union had come in, he would close it. Rose attempted to negotiate a reduc- tion in the union dues rate by expropriating the Beck decision for his company’s benefit and sought to improperly influence the outcome of that unlawful January 27 election by deliber- ately allowing probationary employees, contractually excluded from the unit, to vote. Finally, noting, too, that employees had been summoned at work to be questioned in Rose’s office, the locus of authority, principally by the Respondent’s attorney, Mueller, but also by Rose, himself, I find that the above interrogation of Andreas in June 1999 and all those above-described interrogations that occurred in February 2000 proceeded against a background of the Respondent’s unlawful conduct and repeatedly expressed antiunion animus. They, therefore, were coercive and violative of Section 8(a)(1) of the Act.58 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged is commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by: (a) Undermining the Union as the recognized bargaining rep- resentative of certain of its employees by announcing and con- ducting a poll among its employees concerning whether they desired to be represented by the Union when it did not have a good-faith doubt of the Union’s majority status. (b) By threatening its employees that it would conduct such polls at will in the future without providing assurances that it would do so only if it should then have sufficient objective considerations to sustain a good-faith doubt of the Union’s majority status. 58 Although the complaint did not allege that these interrogations also were violative because coercive, this finding is closely related to matters actually alleged, flows from the same charge, facts and circum- stances that were fully litigated at the hearing. NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959). (c) By conducting interviews with employees in preparation for hearing (i) by compelling its employees to attend such in- terviews regardless of their desires, (ii) without informing them that their participation in the interview is purely voluntary and that they can refuse to answer any questions, (iii) in an atmos- phere of hostility to the union involved, or (iv) while conduct- ing such interviews, exceed the legitimate scope of inquiry necessary for such interviews so as to unnecessarily and coer- cively intrude into the rights of employees under the Act. (d) By coercively interrogating its employees concerning their union activities. 4. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7). REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended59 ORDER The Respondent, Wisconsin Porcelain Company, Inc., Sun Prairie, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Undermining District Lodge No. 121, International Asso- ciation of Machinists and Aerospace Workers, AFL–CIO as the recognized bargaining representative of certain of its employees by announcing and then conducting polls among its employees concerning whether they desired to be represented by that union when it did not have a good-faith doubt of its majority status. (b) Threatening its employees that it would conduct such polls at will in the future without providing assurances that it would do so only if it should then have sufficient objective considerations to sustain a good-faith doubt of the Union’s majority status. (c) Conducting interviews with employees in preparation for hearing (i) by compelling its employees to attend such inter- views regardless of their desires, (ii) without informing them that their participation in the interview is purely voluntary and that they can refuse to answer any questions, (iii) in an atmos- phere of hostility to the union involved, or (iv) while conduct- ing such interviews, exceed the legitimate scope of inquiry necessary for such interviews so as to unnecessarily and coer- cively intrude into the rights of employees under the Act. (d) Coercively interrogating its employees concerning their union activities. (e) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 59 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. WISCONSIN PROCELAIN CO. 177 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post at its two facilities in Sun Prairie, Wisconsin, copies of the attached no- tice marked “Appendix.”60 Copies of the notice, on forms pro- vided by the Regional Director for Region 30, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including 60 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 21, 1999. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.