Indiana Cabinet Co., Inc.

INDIANA CABINET CO. 1209 Indiana Cabinet Company, Inc. and Local 334-236, United Furniture Workers of America, AFL- CIO and United Furniture Workers of America, AFL-CIO, and its Local 334-236. Case 25- CA-15736 and 25-CA-15736 . 25 July 1985 DECISION AND ORDER BY- CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 15 March 1984, Administrative Law Judge Bernard Ries issued the attached 'decision. Re- spondent Indiana Cabinet Company, Inc., the Gen- eral Counsel, and United Furniture Workers of America, -AFL-CIO and its Local 334-236 (jointly the UFWA) filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed 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, and conclusions' as modified and to adopt the recom- mended Order as modified. I. The General Counsel and the UFWA except to the judge's dismissal of the principal allegation in this case: that Indiana Cabinet Company violated Section 8(a)(5) of the National Labor Relations Act by withdrawing recognition from the UFWA as the bargaining agent of Indiana Cabinet's produc- tion and maintenance employees. The General Counsel and the UFWA also except to the judge's failure to find that four alleged Indiana Cabinet su- pervisors' signing of a petition opposing representa- tion by the UFWA constituted interference and surveillance in violation of Section 8(a)(1) of the Act.2 Additionally, the General Counsel argues that the judge, in finding that Indiana Cabinet vio- lated Section 8(a)(5) by failing to timely respond to the UFWA's request for information, predicated i At the General Counsel's request, we modify the judge's Conclusions of Law by adding the following conclusion "United Furniture Workers of America, AFL-CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act " However. we decline to add other conclusions of law requested by the General Counsel concerning the identity of the cer- tified bargaining representative and the parties to the collective -bargain- ing agreement because the pleadings and evidence are inconsistent on these matters and, in view of the Order we issue in this case , conclusions concerning these matters are unnecessary 2 In connection with this exception, the General Counsel also excepts to the judge's failure to unequivocally hold that the four individuals in question were supervisors In adopting the judge 's dismissal of the 8(a)(l) allegations involving these four individuals ' signing the petition, we note that the judge found their signing of the petition not to violate Sec 8(a)(I) even if the individuals in question were considered to be supervi- sors this finding solely on the, requested information's relevance to contract negotiations and not on the UFWA's need for the information in administration of the collective-bargaining - agreement then in effect.3 Indiana Cabinet, on the other hand, con- tends that its delay in responding to the informa- tion request did not violate Section 8(a)(5) on any basis. Additionally, Indiana Cabinet excepts to the breadth of the order- recommended by the judge to remedy this violation. Finally, Indiana Cabinet ex- cepts to the judge's finding that it violated Section 8(a)(1) by its plant superintendent's informing two employees that they could start a petition if they were not satisfied with the Union. We find that the only exception warranting re- versal of any of the judge's conclusions is Indiana Cabinet's exception to the 8(a)(1) violation con- cerning the plant superintendent's informing two employees that they could start- a petition. Addi- tionally, although we adopt the judge's conclusion that Indiana Cabinet did not violate Section 8(a)(5) by withdrawing recognition from the UFWA, we do so for reasons other than 'those stated by the judge. We have not considered and express no views on the judge's findings and conclusions con- cerning which no party excepted. See Section 102.46(b) and (h) of the Board's Rules and Regula- tions, 29 CFR § 102.46(b) and (h). II. Contrary to the judge, we find no 8(a)(1) viola- tion in Plant Superintendent Leo Brelage's state- ment to employees Curtis Brown and Charles Col- lier that he had heard they were not satisfied with the Union, there was a way they could start a peti- tion through the NLRB, -and the Company could not help them.4 Rather, this statement was merely a The implication of the General Counsel's exception on this point is that, even if Indiana Cabinet's notification to the UFWA on 29 August 1983 that it would not bargain concerning contract renewal was proper, Indiana Cabinet's duty to supply the requested information did not termi- nate at that point because the UFWA had a right to obtain the informa- tion to aid it in representing unit employees under the then-current con- tract . which would not expire until 23 September 1983 In adopting the judge's resolution of this issue, we note that the UFWA initially made the request for information in the context of its 30 June 1983 letter notifying Indiana Cabinet that it wished to amend the contract and, in its followup letter of 19 August, describing the subject of its request as "bargaining information " It is evident from the letters that the UFWA sought this information solely in preparation for negotiations over contract renewal Accordingly, the General Counsel's argument that the UFWA was enti- tled to receive the requested information for contract administration pur- poses is inapposite , as the information had not been sought for such pur- poses , 4 In sec iII,C of his decision, the judge found Brelage's conduct to constitute a violation of Sec 8(a)(1) even though the General Counsel had not alleged it to be a violation As no exception has been taken to the judge's raising of this issue on his own . motion, we need not address whether it was proper for him-to do so 275 NLRB No. 169 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an accurate summary of the law and was permitted by Section 8(c) of the Act. Unlike the situation in Campo Slacks, 250 NLRB 420•(1980), on which the judge relied, here Brelage did.not request that the employees start a decertification petition. Addition- ally, unlike Campo,, the, discussion of a petition here did not arise in the context of numerous unfair labor practices committed by the employer. We find the present case to be more akin to R. L. . White Co., 262 NLRB 575 (1982), in which, even with multiple unfair labor practices present, the Board found no, 8(a)(1) violation occurred when the employer's executive vice president, ad- dressing a meeting of rank-and-file employees, ex- plained how they could retrieve authorization cards they had 'signed from the union and distribut- ed a pamphlet that presented the same information. The Board stated: An employer. may lawfully inform employees of their . right to revoke their authorization -cards, even where employees have not solicit- ed such information, as long as the employer makes no attempt to ascertain whether em- ployees will 'avail themselves of this right nor offers any.assistance, or.,otherwise creates a sit- uation where employees would tend to feel peril in refraining from such revocation. Id. at 576. Here, Brelage` did not attempt to learn. whether Brown or Collier would start an antiunion petition or which employees would sign it and spe- cifically informed Brown and Collier that the Com- pany could not assist -them with any petition. Moreover, contrary to the judge, we do not- be- lieve that Brelage's mere informing Brown and Collier about the procedure,by which a union dis- affectionpetition could be circulated created a situ- ation in which Brown and Collier would tend to feel peril if they refrained from circulating such a petition. The lack of unfair labor practices attend- ing any aspect of the circulation of the petition fur- ther supports our, conclusion that Brelage's state- ment to Brown and Collier was made in a noncoer- cive context.5 - 1. ' III. As. described above, we reverse the judge's hold- ing that Brelage's statement to Brown and Collier violated Section 8(a)(1). Moreover, the judge con- cluded that no other unfair labor practices oc- curred concerning' the circulation and signing of the antiunion petition and we adopt those,conclu- sions to the extent they are before us. Therefore, we are compelled to conclude that Indiana Cabi- net's refusal to bargain over contract renewal with the UFWA was validly based on Indiana Cabinet's good-faith doubt that the UFWA represented a ma- jority of the bargaining unit employees, as the anti- UFWA petition, which was the source of Indiana Cabinet's good-faith doubt, was unblemished by any unfair labor practice.6 In any event, we also agree with the-judge, al- though not with his precise rationale; that even if Brelage's statement constituted a violation it did not serve to taint the petition and Indiana 'Cabinet's subsequent refusal to bargain -over- contract, renew- al. Unlike the judge, we do not read the stipulation into which the parties'entered at hearing to bar us, in determining the validity of Indiana Cabinet's good-faith doubt of the UFWA's majority, from considering the purported 8(a)(1) violation stem- ming from Brelage's statement. Rather, we believe that the plain language of the stipulation, and its intent, was to bar unalleged violations from being considered in relation only to the number and au- thenticity -of .signatures on the petition and not in relation to the question of whether the entire peti- tion was tainted by the nature of its inception or the manner of its circulation. However, even when the purported .8(a)(1) violation based on Brelage's statement is considered, it is not so far reaching in effect as to taint the entire, petition. As the judge acknowledged in footnote 8 of his decision, evi- dence of taint is lacking because there is no show- ing that any employees other than Brown and Col- lier were aware of Brelage's conversation with Brown and Collier concerning the 'possibility of starting .a petition. Accordingly, if this conversation In finding Brelage's statement ent to be unlawful, our dissenting col- league relies on the Board's' decisions in Seaward International, 270 NLRB 1034 (1984), and Condon Transport, 211'NLRB 297 (1974) How- ever,, those cases are inapposite In Seaward, the employer's president asked the brother of a union activist who had been illegally discharged if he liked the way things were going' between the supporters and the oppo- nents of the union The, employer's president then blatantly asked the em- ployee if he had ever thought about decertifyi ig the union This inquiry was held to violate Sec 8(a)(1) By contrast, in the present case Brelage did not ask Brown or Collier if they had considered decertifying the Union, nor were his remarks made in the coercive atmosphere engen- dered by prior discharges of union proponents Condon Transport bears even fewer similarities to the present case In Condon, the employer not only told the employees how to decertify the union, but it also guided the employees every step of the way through the decertification process In that case the judge agreed that the General Counsel was correct in observing that virtually every act, other than mailing the petition, was the work of the employer No similar employer assistance of the decertification effort is present in this case Accordingly, the dissenting opinion, which relies on these cases, leaves us unpersuaded While not excepting to the judge's further conclusion that Indiana Cabinet did not holate Sec 8(a)(1) by allowing Brown and Collier to so' licit'support for the petition during working time; the General Counsel, in her listing of the lines of the judge's 'decision to which she excepts, appears to takeiissue, at least perfunctorily, with the judge's conclusion that this conduct militated against the validity of the petition as a basis for the withdrawal of recognition Because the General Counsel declines to urge reversal of the judge's conclusion that this solicitation activity was' not an unfair labor practice, there is no basis for finding that it in- validated the petition INDIANA CABINET CO 1211 constituted a violation, it served not to invalidate the entire petition,•but only to taint the petition sig- natures of Brown and Collier. Under the terms of the stipulation, we are precluded from taking into account that unalleged violation in relation to the number of signatures on the petition, so apparently we cannot consider the number- of signatures as being decreased by the two given by Brown and Collier. In any case, even if we did disregard the signatures of Brown and Collier, the petition still would contain signatures of 47 of the 92 unit em- ployees, a majority.7 Accordingly, we hold that In- diana Cabinet's refusal to bargain over contract re- newal did not violate Section 8(a)(5). - ORDER The National Labor Relations Board adopts the recommended Order- of the. administrative law judge as modified below and orders that the Re- spondent, Indiana Cabinet Company, Inc., Dubois, Indiana, its officers, agents, successors, and 'assigns, shall take the action; set forth in the Order as modi- fied. 1. Delete paragraph 1(b) and reletter the subse- quent paragraph. MEMBER DENNIS, dissenting. ,, I disagree with my colleagues' conclusion that Plant - Superintendent Brelage's statements to em- ployees Brown and Collier did not violate Section` 8(a)(1): I also disagree with their -conclusion that the Respondent's refusal to bargain based on a de- certification petition Brown "and Collier circulated did not violate Section 8(a)(5). - Brelage approached Brown and Collier in the plant, stated he had heard Brown and Collier were not satisfied with the Union, and advised them they could file a decertification petition but the Compa- ny could not assist them. Brown and Collier- told Brelage they were not interested, but they later--de- 7 The parties stipulated -to the approiiitnate number of employees in each of Indiana Cabinet's six departments in June and July 1983 The sum of these figures is 92 employees, including the 5 department heads who were included in the bargaining cunit Indiana Cabinet 's earnings register for the week of 26 July 1983, the week during which the antiunion peti- tion was removed from 'circulation and filed with the Board , shows 89 employees on the register , excluding the nonunit employees (Plant Super- intendent Brelage, his secretary,. Sang, Production Manager Crowe, and Shop Foreman DeKemper) If the actual number of unit employees was less than 92, the 47 signatures on the petition would, of course, represent a majority by a greater margin - Other than DeKemper, the five department heads, referred to as lead- men, were included in the stipulated bargaining unit in 1981 and voted in the representation election that year Despite some statements during contract bargaining that they were no longer in the unit, the subsequent contract continued to specify that the leadmen were within the unit Ac- cordingly, they are included in the figures for unit employees shown above Moreover, we decline to adopt the statement in fn 26 of the judge's decision that the evidence shows that Indiana Cabinet and the UFWA had agreed to exclude from the bargaining unit'the five depart- ment heads in question - cided to circulate a petition. The record is devoid of evidence that Brown, Collier, or any other em- ployee had expressed dissatisfaction with the Union to,Brelage. - - ,Although, an employer may. advise employees- of their rights; including- the right • to decertify a union, an employer may not initiate the decertifica- tion idea. Seaward International, 270 NLRB 1034 (1984); Condon Transport, 211 NLRB 297 (1974).1 My colleagues say that Brelage did not ask Brown and Collier to start a decertification petition. Yet, the plant superintendent singled out two employees and told them he had heard they were unhappy with the Union, although there is no evidence the employees had in fact expressed any dissatisfaction. The superintendent then advised the two employ- ees they could decertify the Union. Although ini- tially opposed to the idea, they took the hint.2 Absent the Respondent's implanting the decertifi- cation idea, there, is no evidence that the petition would ever have been circulated or filed. Again, the record suggests the petition's circulators at first opposed the idea. Thus, the entire' decertification petition is suspect. The decertification process being tainted,, I would find the petition, invalid and the Respondent's refusal to bargain unlawful. . - .1 '1 My colleagues' attempt to distinguish the case law reflects a' misun- derstanding of the cases Whether the Respondent unlawfully initiated a decertification petition-depends on what the Respondent said, how many unfair labor practices the Respondent committed is immaterial 2 In considering what constitutes a request of suggestion , it is well to remember that Henry II only said, "Who will free me from this turbulent priest?" The remark sufficed - 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 violated the National Labor Relations Act and:has ordered.us to post.and abide by this notice. Section 7 of the Act' gives employees these rights. To organize To form, -join, -or. assist any union To bargain 'collectively through representa- tives of their own choice - To act together, for.other mutual aid or pro- tection . , To- choose not',to engage in- any of,these protected concerted activities. - 1212- DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT fail to furnish relevant informa- tion and to - respond to labor organizations in a timely manner when required to do so by- law. WE WILL NOT in any like or related- manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. • INDIANA CABINET COMPANY, INC. - DECISION - BERNARD RIES, Administrative Law Judge. This matter was-tried in Jasper, Indiana, on November 7-9, 1983. Briefs.were received from the General Counsel and the Respondent on January 16,.1984, and the Charging Party filed a letter joining-in the brief filed by the Gener- al Counsel I have reviewed the briefs, the testimony, and -the ex- hibits received at the hearing. Based on the 'foregoing and on my recollection of the demeanor of the witnesses, I make the following. findings of fact,' conclusions 6f law, and recommendations. - ' 1. THE COMPLAINT ALLEGATIONS , . Two - complaints_ -were consolidated for purposes of hearing 'in this case. The first complaint; issued on Sep- tember 23, 1983,2 on a charge filed on August 2, alleged' that the Respondent had violated Section 8(a)(1)-of the Act in four particulars: (1), by orally announcing on August 3, and thereafter maintaining, a rule stating, "No solicitation for membership in the Union may take place in the Respondent's facility"; (2) by, since February 2, engaging in the "disparate enforcement of a no-solicita- tion rule which prohibited pro-union employees from en- gaging in union activity during working hours while it permitted anti-union employees to.solicit support during working time"; (3) by, since on 'or about June 22, "per- mitting its supervisors to sign anti-union petitions"; and (4) by, since on or about June 22, having "kept under surveillance the Union activities and sympathies of its employees by allowing' its supervisors to participate in the signing of the anti-union petition" just referred to. The record shows that, by letter of August 29, the Re- spondent had declined to bargain further with the Charg- ing Party, the then-incumbent union, but the September 23 complaint made no mention of this fact. However, on October 18, pursuant to a second charge filed on Sep- tember 12, the Regional Director issued a new complaint in Case 25-CA-15846, alleging that the Respondent had violated Section 8(a)(5) since on or about June 30, by re- fusing to recognize and bargain with the Union, and, as well, by failing to furnish :certain requested,- information to the Union. - , II. THE BASIC FACTS . The Respondent manufactures office furniture in ,its Dubois, Indiana plant, where it employs some 90 work- i Errors to the'transcript are noted and corrected ' ' 2 Except as otherwise indicated, all dates refer to 1983 ers. On October 13, 1981, after a representation election, the Union was certified as -the bargaining representative of the following unit, All full-time and regular part-time production and maintenance employees employed by the Employer at its Dubois, Indiana, facility including all leadmen and' all firemen; BUT EXCLUDING all office cler- ical employees, all salesmen, all professional ,em;_ ployees,-and all guards and supervisors as,defined in the Act. - • Bargaining negotiations ensued. On September 24, 1982, the parties executed a collective agreement. One of the articles, dealing primarily with the right of employ- ees to choose whether or not they want to- join the Union, also provided, "The Union further agrees not to solicit membership during working time." In May 1983, Kenneth Heichelbeckh,3. chief steward for the, Union,. bid for and was awarded the job of stock boy. In a conversation about his transfer with Plant Su- perintendent Leo Brelage Jr., Brelage stated that he knew Heichelbeckh wanted the job so that he could have free run of the plant, and, as Heickelbeckh testified, "he made it a point to tell me that he did not want me soliciting union membership on my stock job."4 About June 15, according to the testimony of employ- ees Curtis Brown and Charles Collier, Brelage ap- proached the two men in the plant. In Brown's words, Brelage told them he had heard that they were not satis- fied with the- Union, and "he said that there was a way that we could start a petition through the National Labor Relations Board, if we wanted to, that the compa- ny could not'advise us and could not help us in any way, that we'd have to do it on our, own,. 'and we'd have to draw up, a petition and present it to the Labor Board."5 Initially, Brown and Collier were opposed to the idea "because we were afraid there would. be too many hard feelings brought out in the factory," but after further dis- cussion, they decided that "it might be best for the facto- ry.,, , On June 22,- the two employees began to circulate a petition headed "We the employees of Indiana Cab. Co. no longer want the UFWA as our representatives. And request NLRB election." By July. 25, when they went to Indianapolis to file a decertification petition, a total of 49 employees had signed the document.6 Among the signers were four employees (Jerry Kluesner, Terry Lewis, Ray Friedman, and-Daniel Friedman) who are alleged in the complaint, and denied by Respondent, to be "supervi- sors" and "agents" of the Respondent. The testimony in- dicates that in the 2-week period in which - Brown and 3 As spelled in the transcript, although I have my doubts about the final "h : • *'Brelage did not "recall" making such a statement I'considered Hei- chelbeckh the more believable witness Brelage denied on two separate appearances at the hearing that'he' had discussed the petition'with the two employees prior to us circulation I do' not believe that the two men were fabricating this testimony, al- though they were not especially impressive witnesses, they were more credible than •Brelage _ 6 Between June 22 and July 25 fell a 2-week vacation period in-which very few employees were in the plant - INDIANA CABINET CO Collier were most active in soliciting signatures, they spent some time in departments other than their,,own speaking to employees on working time about signing the petition. When, in July, Brown and Collier went to Brelage to ask-for a day of personal leave in order to file the peti- tion in Indianapolis-the'record does not indicate wheth- er they were paid for the day in question'- they gave .him a copy-of-the document. Prior to that time, on June 30, ,the Union. had served • written notice to modify the agreement, which had an initial termination date of Sep- tember 23, and had also requested 13 items of miscellane- ous information. On August 19, having received no reply, the Union reiterated the information request and also asked for proposed dates for negotiations. On August 29, through its attorney, the Respondent replied to the August 19 letter by saying that'it "respectfully de- clines to bargain with your organization 'until its majority status is established in a representation election." The Respondent's letter further stated, with respect to the re- quest for information, that- "the collective bargaining agreement and the information provided last year should- provide you with everything- you desire. There have been no intervening changes in the employer's oper- " tion a III. DISCUSSION 5 - A. The Withdrawal of Recognition and Related Allegations - Because'of pleading and other'problems, this is not•a routine withdrawal-of-recognition case • i At the heart of the case is the fact that the Respondent elected not to bargain with the Union in August, `pur- portedly on the basis of the 49 signatures on the petition gathered in June and 'July. One way to approach -the issue is to argue that the Respondent violated the Act simply because the refusal occurred while a valid collec- tive-bargaining agreement was in' effect Precision Strip- mg,- Inc., 245 NLRB 169 (1979),' enf • denied 642 F.2d 1144 (9th Cir 1981), holds, "[W]here there is a collec-' tive-bargaining agreement in effect between an employer and a .union which is the statutory bargaining' agent for the employees covered by the contract; that union enjoys an irrebuttable presumption of majority status for the duration of the agreement:" This notion !of the majority -status -being, "irrebuttable" - for the term of a contract, however, essentially, connotes that an [employer cannot withdraw- its recognition until that term has expired- I do not find' here that the. Re- - spondent •on August, 29 in 'any way repudiated the bar= ; gaining agreement'itself, but in -fact only declined to bar- ' gain about a new one. - I so conclude despite the fact that, -probably heedless- ly, the Respondent's answer to the complaint agrees with the characterization that it "withdrew recognition" on or about August 29. What it, actuly did, so' far as I can- 4 see, was to prospectively refuse to:engage in.contract re- newal bargaining. Indeed, in the August 29 letter, the 7 The petition- was filed on Monday, July 25 It is not clear from- the record that the two actually told Brelage why they wanted a-day off 1213 Respondent did not refuse to supply the requested infor- mation on.the ground that the, relationship was terminat- ed, but rather phrased its reply-as if the relationship was an ongoing one . More relevant here is the line of cases holding that "an employer may lawfully withdraw recognition'from an in- cumbent union because of an asserted doubt of the union's continued majority, if its withdrawal occurs in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasona- ble grounds for a belief that a majority of the employees no longer desire union representation." Peoples Gas System, 214 NLRB 944 (1974). In the present case, the "objective consideration" upon which Respondent would principally rely is the petition signed on June 22 and thereafter - - As indicated above,' withdrawal can only be made in "a context free of unfair labor practices." Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 681 (1944) ("Peti- tioner cannot, as Justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor practices") Not every unfair labor practice, however, will preclude the possibility of withdrawal; the violations must be of "such a character as to either -affect the Union's status, cause employee disaffection, or improperly affect the bargain- ing relationship' itself." Guerdon Industries, 218 'NLRB 658, 661 (1975). In applying this approach, the Board has refused to sanction withdrawal in circumstances in which an em- ployer has instigated and intrusively assisted in securing signatures ' to a petition on which the employer then relies 'in claiming a doubt of majority status. E.g., Garrett Railroad, Car & Equipment, 255 NLRB 620 (1981), enfd. in•relevant part 683 F.2d 731 (3d Cir, 1982), Texaco, Inc, 264 NLRB 1132 (1982), •enfd: 722 F 2d 1226 (5th Cir. 1984). It- is evidently that line of authority which the present consolidated complaint seeks to invoke. There is, it, would, appear, no contention by the Government that the petition -itself, would not otherwise-suffice as a basis for a reasonable doubt-justifying the Respondent's with- drawal. Indeed, at the hearing, the. parties entered into the following stipulation: [I]n relation' to the issue of the propriety of the withdrawal of'recognition by the Respondent, the General- Counsel does not 'raise; any question as to the- number of `signatures on' the decertification re- quest quest now in evidence as GC Exhibit 7, or the au- ,'^' thenticity of those signatures, except as the signa- ture"s'may be-affected 6 "any unfair labor practices alleged and proved in this proceeding. The apparent' intention''of the'parties is that'the Gener- al Counsel agrees not to question the adequacy of the pe- tition as a valid basis for the withdrawal of recognition' except insofar as 'the' petitio'n'rnight have been tainted by unfair: labor practices ','alleged and proved" at the hear- ing - The quoted phrase presents a real problem In my view, the most serious. misconduct in the case was Bre- lage's approach-.to Brown and Collier-to promote the cir- 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD culation of the petition. There is nothing in the record to suggest that the two men had been considering any such initiative. Instead, the two, who -had, then been employed for only 4 months, were -presented by the plant superin- tendent with the notion in such a way that they might well have thought it prudent to comply with the sugges- tion. Brelage's approach to the two- men 'would, I have no doubt, itself violate Section 8(a)(1). Campo. Slacks, 250 NLRB 420, 423, 424 (1980). It could also be considered that sort of unfair labor practice which would fatally infect the petition as a foundation for withdrawal of rec- ognition 8 ' - The problem is that the, solicitation by Brelage is not itself "alleged" to be violative of the Act, even though the General Counsel was aware of and, in fact, presented the testimony of Brown and Collier on the point.9 The, failure to allege the conduct as unlawful does not neces- sarily mean, in ordinary circumstances, that no finding of violation could be made The - long-established. test for making a finding of an unalleged violation is-whether the matter has been "fully, litigated," Penn Color, Inc, 261 NLRB 395 fn. 2 (1982); Gogin Trucking, 229 NLRB 529- fn. 2 (1977). In the present case, Brown and Collier cre- dibly testified about Brelage's overture to them and Bre- lage twice incredibly denied any such conversation. 10, But, in the special circumstances of this case, I do not feel free to consider that conduct in assessing the validity of the withdrawal. As shown above,-the parties stipulat- ed that the only questions the General Counsel would raise about the validity of the repudiation petition as a basis for withdrawal were those flowing from "unfair labor practices alleged and proved" in the proceeding, not 3 It is evident that-there would have been no such petition had it not been for Brelage Under the reasoning of such cases as Dayton Blueprint Co. 193 NLRB.1100, 1108 (1971), it would'appear that the Board, as a matter of policy, might apply a "fruit of the poisoned tree" analysis to such potentially mischievous behavior, so as- to discourage employers from so blatantly interfering in the statutory affairs of its employees At the very least, the Respondent's initiation of the petition in this manner would preclude it from relying upon the signatures of Brown and Collier as presumptively free expressions of their own sentiment On the other hand, the argument could be made that, even if Brelage did violate the Act by unlawful instigation, the evidence of'actual impact and taint (other than as to Brown and Collier) is lacking , since there is no showing that any other employees were aware of the Brelage-Brown- Collier discussion In Guerdon Industries, supra, the Board found the withdrawal unlawful where the preceding employer violations were "fla- grant [and] egregious" and "directly affect[ed] a large segment of the bar- gaining unit," 218 NLRB at 662, whether these conditions were prescrip- tive or merely descriptive, or may be said to have obtained here, is argu- able Nor has the General Counsel sought to remedy the omission on brief, although he there has moved to amend the complaint in another respect with regard to a date 10 It is true that on both occasions the questions were put to Brelage not by counsel for the Respondent but rather by counsel for the General Counsel In the Board's view, however, as it instructed me not long ago, even if Brelage had said nothing at all on the matter at the hearing, an unfair labor practice apparently could have been found In Paul Distribut- ing Co, 264 NLRB 1378 (1982), concluding that the matter had not been "fully litigated." I had declined to find a violation based on undenied tes- timony about an unalleged ihcident The Board reversed on the following rationale "Although not specifically-alleged in the complaint, the con- versation clearly is related to the subject matter of the complaint, and Wayne Paul was on notice of Peterein's testimony in this regard and had ample opportunity to dispute it at the hearing " Ibid There are those who might contend that there can be no "full litigation" when'there has been no denial of the pertinent testimony merely from those -"proved." I cannot but believe that these carefully chosen words must be accorded their full meaning with respect to the matters which I may consid- er in assessing the acceptability of the petition. The -Re- spondent secured an agreement' that only those unfair practices which have been "alleged and proved" are po- tentially capable of vitiating the petition; the Respondent may "have foregone making some proof or other on the strength of that stipulation; and I feel., duty-bound to honor 'that commitment. t i That conclusion remits us to the unfair labor practices "alleged" in the complaint and set out above. The first allegation is the oral announcement on "August 3" (the evidence shows the event to have actually occurred in May) and subsequent maintenance of what is asserted to be an unlawful no-solicitation rule. As earlier stated,, Union Chief Steward Heichelbeckh testified that in May, as he began his new- job. which would take him around the plant, Brelage said that he "did not want me soliciting union membership. on my stock job." As also previously noted, the bargaining agreement then in effect provided, "The Union further. agrees not to solicit membership during working time." At the hearing, counsel for the General Counsel was asked whether the contract provision was itself being challenged as violative of Section 8(a)(1) and he replied that it was not That being so, and it also being the case that Brelage did nothing more in May than reiterate to Heichelbeckh the substance of the presumptively lawful contract provision, 12 I cannot see how a finding can be made that, as the complaint asserts, the Respondent un- lawfully "promulgated" the rule in order to discourage its employees from engaging in activities protected by- Section 7.13 The next relevant allegation is that since "on or about February 2, 1983," the Respondent "engaged in the dis- parate 'enforcement of a no solicitation rule which pro- hibited pro-union employees from engaging in union ac- tivity during working hours, while it permitted- anti- union employees to solicit support during working time." There is no' evident reason for the claimed inception date of-"February-2." The reference to the "disparate en- forcement of_ a 'no solicitation rule" suggests that some sort of no-solicitation ban was in effect and was applied discriminatorily. However, apart from the unchallenged contract provision prohibiting union membership solicita- tion during working time earlier discussed, ' I cannot find in the record any evidence of a generally promulgated rule prohibiting solicitation. ii Sec 3(d) vests in' the General Counsel "final authority" over the issuance and prosecution of complaints When the General Counsel has as clearly delineated his position as he did in this case, I would assume that a respondent has a right to rely on that delineation . 12 While Brelage used the words, "on [Heichelbeckh's] stock job" rather than the contractual "during working time," it seems to me that both phrases convey exactly the same concept See Our-Way, Inc. 268 NLRB 394 (1983) I note that the complaint alleges a much' broader scope of the proscription ("in the Respondent's facility") than was actual- ly testified to by Heichelbeckh 13 Since the contract provision is, as indicated, not claimed to be viola- tive, it is not necessary 'to examine its validity under NLRB v Magnavox Co of Tennessee, 415 U S 322 (1974) INDIANA- CABINET CO The Board has held that, in the absence of a published valid rule proscribing union-related solicitation on' work- ing time, employees are free to engage in such activity at such time "absent an affirmative showing of impairment of production " Miller's Discount Dept. Stores, 198 NLRB 281 (1972), enfd. on another ground 496 F.2d 484 (6th Cir. 1974). In the present case, while there was a pub- lished (and here unchallenged) rule, contained in the -contract,.-, relating solely- to the solicitation of union "membership," no other rule purported to regulate other Section 7 activity engaged in on working time. Accord- ingly, pursuant to Miller's, employees were entitled to so- licit support for or against the Union on working time except when the Respondent could demonstrate 'that such activity resulted in "impairment of production." The present record indicates that Brown and Collier, who worked in the cabinet room on an assembly line, 14 were `fairly frequent visitors to the other departments during the period in which petition signatures were ob- tained, although the amount of time they spent outside their own area is, understandably, not very precisely pin- pointed. Finishing department employee Rebecca' Bair 'testified that, for a period of about 2 weeks, Collier and Brown were in her department on several visits each day for a total of perhaps 40 minutes a day, speaking to only 3 or 4 of the some 20 employees on working time, Fore- man Dan Friedman was present when Brown was there.' 5 Heichelbeckh testified that, in June and July, he saw Collier spend a total of an hour a day in the ma- chine room, "spread out throughout the day," and Brown perhaps 10-15 minutes a day; Foreman Foerster was in the department and in a position to see-Collier. 16 Both Collier and Brown conceded that they had talked to employees about the petition on working time, although Brown testified that he limited his activity in this regard to answering questions posed by employees as he passed them on some work errand or another,. and occasionally to finishing a discussion with an employee which had begun on a break. Both men indicated, how- ever, that they never actually proffered the petition to other employees for signing on worktime, and that seems ,to be confirmed by the testimony of the General Coun- sel's witness Rose Wahl that the two men confronted her "many times at break and lunch and during working hours" to ask her to sign, but "only at break" did they have with them ,a copy of the petition - It does appear that Brown and Collier circulated among , the other employees with a certain amount of freedom in drumming up. support for the petition. It was 1,4 The."assembly line" was manual, not motorized As employees completed their work on one piece of furniture at their 'stations, it was pushed down to the next station 15 But Blairialso testified that Friedman "works a lot" spraying in a booth on the other side of a divider which splits the finishing department 16 Heichelbeckh also testified that, around May, he himself had sold some 10 raffle tickets to other employees- "openly" on working time in his department, while Foerster "was in the department," but he could not say "for sure" that Foerster had seen him doing so Heichelbeckh made a good personal impression, but inconsistencies in some of his testimony leave a question about his total reliability In speak- ing of his discussions with Brelage at a higher level of the grievance pro- cedure, he first said that the pertinent 'foreman sits in "sometimes", then "most of the time", then "usually, the ones I-have handled, I have taken in alone with me and Mr Brelage " 1215 also the testimony of Production Manager Norman Crowe that while employees such as Brown and Collier might be sent to other departments for business reasons, they were not permitted "on their own" to leave their department simply because there was no work to do. But the testimony of the General Counsel's witnesses indi- cates that what appeared to Crowe to be a rule was not always rigidly enforced. Thus, Heichelbeckh testified that "people are always going around talking to each other," including "sometimes" going "from department to department talking to each other about any kind of thing " Rebecca Bair testified that Elaine Baer, who did not work on a motorized assembly line, was free to go and talk to other people in her department if she wanted to, once she had caught up.with her work; and even Re- becca herself, who did work on a line, "could go up and talk .for a little bit, but I had to be right back." In addition, the General Counsel adduced a fair amount of evidence that employees were permitted- to circulate and sell products and gambling chances on working time with some frequency and without adverse consequence Heichelbeckh, among others, testified that employees will go "from one department to another" for these purposes (although it is not clear, he appears to be testifying that such solicitations are, at least sometimes, done on worktime). On the foregoing evidence, I cannot find, as the com- plaint alleges, that there was any "disparate enforcement of a no solicitation rule" because I do not discern the ex- istence of any such rule. Except for the uncontested con- tract clause, which is inapplicable here, there was no published rule prohibiting Section 7 activity on working time and, according to Miller's, supra, in the absence of such a rule, Brown and Collier could have been preclud- ed from soliciting even on working time only when Re- spondent could demonstrate an impairment of produc- tion. Even though there apparently was no official no-solici- -tation rule' in' effect, however, the evidence suggests that Brown and Collier may have spent more time in other departments soliciting support for the petition than would ordinarily be permitted. Although the testimony of the General Counsel's witnesses on this point is neces- sarily imprecise and perhaps somewhat tendentious, i' my suspicion is that the peregrinations of Brown and .Collier may have been tolerated more than they ordinari- ly would have been Brelage, of course, initiated the peti- tion and was interested in its success i 8 Production Man- ager Crowe was aware' of the circulation' of the petition and "possibly" more than once asked Brown how things were going. Brown himself testified that statutory Super- visor Morris DeKemper told him not to solicit signatures except on nonworking time, and that DeKemper, Bre- lage, and Crowe all instructed him at one time or an- 17 Heichelbeckh, as noted, was the chief steward Rebecca Bair was the finishing' department steward I have some reservations about the ac- curacy of'Bair's estimate that Collier entered her department three or four times a day for 10 or 15 minutes per visit during each day of a 2- week period simply to speak to a total of 3 or 4 of the 20 finishing em- ployees, although the statement was-not directly controverted - 1s He inquired of Collier now and again as to the progress of the peti- tion 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other to return to work, assuming this latter testimony is true-(although I am dubious about it), it would imply that employees were generally not supposed to leave their departments to talk to other employees. On the other hand, there is the testimony adduced by the General Counsel, as noted above, that employees were permitted some freedom to speak to 'employees in other departments, and that solicitation for gambling de- vices and commercial items evidently took place on working time without hindrance by the supervisors. This sort of evidence suggests a laxity in practice which may have made the Brown-Collier working time activity seem less than extraordinary to the other employees (par- ticularly in the absence of any clearcut evidence that su- pervisors were aware of and tolerated such activity as it was taking place). Given, further, that there is no evi- dence that the other employees were,aware of Brelage's role in the inception of the petition, and that there is no showing that employees attempted to drum up support for the Union in a manner similar to that of Brown and Collier and were prohibited from doing so, I am inclined to believe that the evidence is inadequate to show, by a preponderance of the evidence, that any latitude afforded to Brown and Collier was sufficiently obvious and suffi- ciently discriminatory to constitute a violation of Section 8(a)(1) or to militate against the validity of the petition as a basis for withdrawal of recognition.is The next complaint allegation is that the Respondent violated the Act by "permitting its supervisors to sign anti-union petitions, thereby encouraging its employees to participate in a union decertification campaign." The General Counsel also presumably argues -that such-con- duct precludes reliance upon the petition as a basis for withdrawal of recognition.. A substantial amount of time was devoted at this hear- ing to the status of five department heads; the evidence shows that four of them signed the June 22 petition. The four were Jerome Kluesner, who was the 10th signer; Terry Lewis, who signed 11th; Ray Friedman, who was the 20th signer; and Daniel Friedman, who signed in the 41st place. The fifth department head, who refused to sign, was Don Foerster. There is no specific evidence that, as the complaint alleges, the Respondent "permit- ted" (in the sense of knowingly approved) the signing by these four men. The fact that Don Foerster, who is al- leged to share their status as "supervisors," refused, to sign, may suggest that the Respondent played no active role in their decisions. Since the issue has been presented of whether the four signers are statutory "supervisors," I suppose I must ad- dress that point It may not make very much difference, for purposes of the 8(a)(1) violation alleged, whether the 19 Since the most that could be inferred here is that the Respondent, in order to lend assistance to the effort to oust the Union, consciously re- laxed a rule barring employees from visiting other departments on work- ing time, but without a showing that it would have discriminated against similar activity by prounion forces, it might also be questioned whether such behavior was "alleged" within the meaning of the stipulation, given that the closest allegation of the complaint was that the Respondent "en- gaged in the disparate enforcement of a no solicitation rule which prohib- ited pro-union employees from engaging in union activity during working hours, while it permitted antiunion employees to solicit support during working time " men are "supervisors" within the meaning of Section 2(11) or whether they are "agents" identified with man- agement who exercise some lesser authority over the other employees. Although the Board normally assumes that the acts of "supervisors" may, by virtue of that status, be both coercive and automatically attributed to the employer for purposes of Section 8(a)(1), that may also be so, depending on the facts,'in the case of nonsu- pervisory leadmen. Injected' Rubber Products Cork.-1 258 NLRB 687, 693 (1981); B-P Custom Building Products, 251 NLRB 1337, 1338 (1980). ' Since I conceive it to be my duty to do so, I shall dis- cuss below the evidence pertaining to the functions and powers of the four men. I will state at the outset, howev- er, that even if they are statutory "supervisors," I see no reason for concluding that their signing the petition con- stituted a violation of Section 8(a)(1) or affected the va- lidity of the petition in any meaningful way. The General Counsel has cited no authority for the as- sertion that such signing by a statutory supervisor is a violation per se, and I am unaware of any such prece- dent. The record is bare of testimony regarding the cir- cumstances in which the four men signed the petition, so there is no reason to infer that the employees could have been affected in any way,other than simply by seeing their signatures on the document. It seems improbable to me that merely observing these four signatures would have tended to influence or coerce the employees, particularly in the setting of this case. As further discussed below, all four department heads had, by agreement with the Union, been permitted to vote in the 1981 election pursuant to the stipulated unit which, as earlier shown, expressly, included "leadmen"; the con- tract signed in 1982 repeated the inclusion of these "lead- men" in the bargaining unit. In these circumstances, it would seem that the fact that the four names appeared on the petition may not reasonably have tended to coerce the other employees, for purposes of both Section 8(a)(1) and the separate issue of the right of the Re- spondent to rely upon the petition-as a ground for with- drawal of recognition. See AT & K Enterprises, 264 NLRB 1278, 1281-83 ' (1982); Robertshaw Controls Co., 263 NLRB 958 . (1982) .20 As indicated, however, I feel obliged to make findings on the evidence presented on this `point. The managerial hierarchy is as follows. Brelage is the plant superintend- ent. Norbert Kceilein is the personnel manager, but ap- parently spends much of his time at a related company. Crowe is the production manager. Morris DeKemper, admittedly, a statutory supervisor, is called the "shop foreman" and is also in charge of the cabinet room. The Respondent's operations are divided into six de- partments. As of June and July 1983, approximately 25 employees worked in DeKemper's cabinet room. In the 20 1 conclude, similarly, that there is no basis for the related 8(a)(1) allegation that the Respondent "kept under surveillance" the union activi- ties of the employees by allowing the "supervisors" to sign the petition Even if the four are supervisors, I would not think that their signing the petition amounted to "surveillance" any more than Brelage's perusal of the petition after it was handed to him constituted forbidden "surveil- lance" of Sec 7 activities INDIANA CABINET CO machine room, headed by Don Foerster, approximately 32 employees were assigned. Dan Friedman was in charge of the finishing room, the work area for approxi- mately 20 employees. Jerry Kluesner headed the packing room and approximately seven employees. Ray Fried- man, with two employees under him, ran the lumber yard. Finally, Terry Lewis was in charge of the final in- spection room, with one other employee working there .21 Although these last four are the only ones who signed-:the petition; there is in the record some evidence about the other two for purposes of contrast and similari- ty. Most of the specific testimony in this record refers to Dan Friedman. There is some testimony regarding Foer- ster, but virtually none regarding Kluesner, Lewis, and Ray Friedman, except insofar as Brelage gave some gen- eral testimony relating to all five men. The statute defines a "supervisor" as one who has the authority, "in the interest of the employer," to "hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or respon- sibly to direct them, or to adjust their grievances, or ef- fectively to recommend such action," if the exercise of such authority "is not of a merely routine or clerical nature, but requires the use of independent judgment " It has been observed that Congress did not intend to en- compass "straw bosses, leadmen, set-up men, and other minor supervisory employees" in this definition, but rather only those persons who share an "empathic rela- tionship" with management and who enjoy the "feeling of control, power, or superiority that one finds in super- visors." NLRB v. Security Guard Service, 384 F 2d 143, 147, 149, 150 (5th Cir. 1967). There is some evidence that the leadmen have been assigned perquisites of au- thority which elevate them above the ordinary crew leader, and some evidence that they have attained an "empathic" relationship with the Respondent. At the,threshold, however, there is a basic statutory requirement that a "supervisor" must be possessed of at least one of the powers set out in Section 2(11), exercised with the use of "independent judgment." NLRB v. Little Rock Downtowner, 414 F.2d 1084, 1089 (8th Cir. 1969). On this record, it is clear that the five disputed depart- ment heads do not hire, transfer, suspend, lay off, recall, promote, discharge, or reward employees, and there is" no firm evidence that they "effectively recommend" such actions. . The five do not independently "discipline" employees in any formal way, although there are accounts (surpris- ingly few, I thought, given the periods of time involved) of instances in which various of the five have "bawled out" or "chewed out" an employee. When written warn- ings are handed out to employees, the leadmen will affix their signatures (sometimes on a printed form in a space marked "supervisor or foreman," sometimes in an unla- beled space, depending on which commercially pur- chased form happens to be used).' The only evidence on the point is, however, that Brelage himself makes the de- 21 I note that Brelage testified that Lewis was not transferred to final inspection until.August, which would be after the petition was circulated, prior thereto, he had worked as an "assistant" to Dan Friedman in the finishing room The parties later stipulated, however, that in "June and July" Lewis was employed in the final inspection room 1217 cision whether or not to issue the warning 22 There is no evidence, although it seems probable, that the five men ,have ever recommended any such discipline. The five men do apparently "responsibly direct" the employees in their departments (although nearly all of the specific evidence on this point' refers to Dan Fried- man and,-to a lesser extent, Foerster, with virtually noth- ing about the other three) There is much evidence of the sort given by employee Bair about Dan Friedman. he "tells us what to do, where to work; sees that production goes through . . he -helps do different jobs." Brelage testified that the five attend production meetings twice a week with the conceded supervisors at which they dis- cuss the weekly projected schedules and "what needs to be run and they are to handle that . . . in their depart- ments, which way they have to see fit to get the job done." Attendance at such meetings, and the concession of their authority'to do what is necessary "to get the job done," imply a substantial degree of power vested in these individuals; but insofar as the record speaks to the point, it is not easy to determine that the work of "get- ting the job done" requires very much exercise of "inde- pendent judgment"; a fair argument can be made that 'the work is routine. On the other hand, Brelage also-testified that the foremen would obviously urge employees to attend to their work from time to time "because . . . that's what they're for. They're there to oversee the de- partment "In so doing, the foremen have been instructed "to see that the work gets done efficiently and without any undue loafing or disappearing." While Brelage -testified that the foremen do not have the authority even to reassign employees on a daily basis within their own departments, much less between depart- ments, and that he himself is personally involved in every such decision, I doubt the truth of his testimony.23 Employees gave contrary testimony, such as that by Carol Ann Jones that foremen from other departments will come to Dan Friedman to ask if he "has anyone to spare," after which they "talk it over and make a deci- sion" and then Friedman will "right away" send "some of his workers to other departments if they are needed." Perhaps the closest the record comes to unequivocally establishing one of the statutory powers relates to the po- tential authority of the four to "adjust . grievances." In the 1982 bargaining agreement, the grievance proce- dure provided as an initial step that the grieving employ- ee might make a verbal presentation to "the foreman" to "attempt to settle the complaint." While "the foreman" is not defined, the reference clearly appears to be to these department heads (grievances are reduced to writing at the next two steps and are presented to, respectively, "the Supervisor" and "the Plant Manager"). Chief Stew- ard Heichelbeckh testified that, of the six grievances filed in 1983 in which he became involved, five were first taken up with the foremen in accordance with this provi- sion and then, after rejection, brought to Brelage. 22 The evidence is not so clear as to whether Brelage always writes out the warnings himself In his initial testimony, he said one thing and in a later appearance he said another The few warnings in evidence were, clearly, written out by Brelage 23 None of the disputed supervisors testified at the hearing 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another block of evidence on this point also suggests that some such grievance-settling authority is vested in the department heads On September 7, responding to an' incident in the plant arising from an accusation made by one employee against another, Brelage told the assem- bled employees that, if they .had complaints against one -another, they should take them-up with the department heads. Also related is the fact that the shop rules state, "All Foremen have been instructed to report all viola- tions of the above rules to the office for proper action by Management " This "reporting" function does not neces- sarily mean that the foremen "effectively recommend" the imposition of discipline, but it-does rather clearly ally them with management in the eyes of the employees. The remaining evidence deals with those trappings of office which do not directly establish statutory supervi- sory authority but which may imply superior status. Dan Friedman earned $7.50 per hour, Ray Friedman $6.40, Jerry Kluesner $6 50, Terry Lewis $5.85, and Don Foerster $6; - the other production employees ranged from $3.69'to $5.47 (with the exception of a higher paid former supervisor and one other employee). The employ- ees,'however, apparently all had an opportunity to earn a production. bonus.24 All the foremen receive extra pay for overtime, like the other employees;, unlike the others, however, they do not punch a -timeclock, but rather fill in their own timecards. The foremen receive the same fringe benefits as the others, except for $7000 of addi- tional life insurance Each foreman has a desk in his department at which he does some paperwork. Above Dan Friedman's desk and in other places are signs saying, "Report all injuries to your foreman immediately," and-the names of (at least) DeKemper, Dan. Friedman, and Ray Friedman appear on the notices. Their personnel files list at least some of these men as "foremen," or, in Lewis' case in a 1982 entry, "assistant foreman." The employee evidence indicates that Dan Friedman spends most-of his time per- forming physical labor. Brelage testified that the leadmen spend about one-third of their time doing work other than "bargaining unit work." _ . Among the other functions, performed by the five are to distribute the paychecks, to manually clarify incor- rectly punched timecards, to sign bills of lading, to fill out absentee reports and production reports, to write out slips indicating daily production needs and hand them out to employees, and (at least in the past) to keep custo- dy of the keys to stock cabinets. They can also let an ailing employee go home. Billie Jean Jones testified to having asked Dan Friedman for some personal .time off at various times and being granted the request immedi- ately. However, when she recently asked for 4 days off, Friedman said that it was "probably" all-right, but that she should ask Brelage. Heickelbeckh testified that the first four times he wanted to be off on union business in his capacity as,chief steward, he spoke to Brelage, but thereafter only to Foerster (who would, however, some-,, times himself check with Brelage). Contributing some confusion is the fact that, as earlier stated, the stipulated unit includes "leadmen", it was un- derstood at the time that the reference was to these five people; and they voted in the 1981 election. There is also, however, undenied testimony - that around April 1982, while bargaining, the Union repeated earlier re- quests for certain information about the foremen and were told by the Respondent's counsel that "the leadmen - were no longer in the-bargaining unit: They were part of management, and not for us to worry about the °informa- tion we hadn't received by then about the leadmen." The contract subsequently executed, however, continued to specify that the "leadmen" were within the bargaining unit. ' - Employee lists given to the Union by the Respondent prior to July 1983 suggest that the Company never did regard the leadmen as part of the unit until the point as- sumed some importance. A 1981 list and a March 1983 list both omitted the names of the foremen; a list dated July 23, 1983, presumably drawn up after the decertifica- tion petition was gathered, includes the five (and, inexpli- cably, even Production Manager Crowe). It thus appears that Respondent may have been play- ing an unpalatable game with the status of these individ- uals; but that fact does not ' much help to resolve the question of that status In my view, at least some of the men may well qualify as statutory supervisors, given the evidence of their authority to adjust grievances and to direct and assign employees.25 Even if that is not so, however, it seems clear that the Respondent has suffi- ciently elevated the foremen over the other employees so that they would be, at least for some purposes, regarded as the "eyes of management" under the precedents earli- er cited, Injected Rubber Products Corp., 258 NLRB at 693, B-P Custom Building Products, 251 NLRB at 1337. That inference is, however,, somewhat clouded in' this case by the fact that the foremen had voted in the elec- tion, which was presumably known to many of the other employees. But, in any event, as earlier stated, it is my view that the mere signing of such a petition even by a full-fledged statutory supervisor is. not likely to have a sufficiently coercive effect on the employees who are subsequently asked to sign so as to invalidate the petition itself as a basis for the withdrawal of recognition. Thus far, I have concluded that the Respondent com- mitted no cognizable unfair labor practices which pre- cluded withdrawal of recognition from the Union'. There are, arguably,'. additional obstacles in the Respondent's - path. Since the Respondent must shoulder the.burden of demonstrating objective considerations at the time of withdrawal which indicated that "a, majority of employ- ees" no longer desired union representation, it seems ob- vious that the Respondent must begin this process by proving the number of employees in-the bargaining unit - at the time the withdrawal was made. In this case, the Respondent has made no such proof; the closest the evi- dence comes is a stipulation that "approximately" vary- ing numbers of employees worked in each of the 6 de- 24 Although admitted Supervisor DeKemper earned $8 60, his appar- 25 I have reservations about Lewis, who worked with only one other ent boss, Production Manager Norman Crowe, earned, only $7 50, the employee, and perhaps about Ray Friedman, who had only two other same as Dan Friedman people in the lumber yard - I ' INDIANA CABINET CO - - - 1219 . partments in June and July (not counting the disputed 5 foremen, these figures totaled "approximately" 87 em- ployees). Moreover,' there is no proof that the- petition signers constituted a majority of the unit employees as of August 29, when the withdrawal of recognition was ef- fected. Ordinarily, I think, such defects would make the petition an inadequate foundation for inferring that 49 petition-signers constituted an objective basis for con- cluding that the Union did not represent a "majority" of the uriit`26-:! Again, however, I feel bound by the stipulation, earlier discussed, in which the General' Counsel concurred that he "does hot raise any question as to the number of sig- natures on the decertification request " The only mean- ingful construction of this stipulation is that the -General Counsel agreed that "in relation to the issue of the pro- priety of the withdrawal of recognition by the Respond- ent," the number of signatures on the petition was to be considered a sufficient footing for a doubt of majority, except as they might "be affected by any unfair labor practices alleged and proved." It may be that, in reliance upon such an understanding, Respondent believed it to be unnecessary to go further and prove the precise number and identity of employees in the unit at the time withdrawal was effected. On brief, the General Counsel raises no issue as to numerical adequacy. Also troubling is the lack of evidence about the extent of the Respondent's investigation into the genuineness of the signatures on the petition and as to the sincerity of the decision-making process which led to withdrawal. While Brelage testified that he questioned the Union's representation of a majority for two reasons-"It was common knowledge throughout the plant that there were only 12 to 14 employees that were part of the Union,27 and the other was the-that the-petition that was handed to me"-he also could not "recall" that he ever did more than instruct counsel to "expedite the peti- tion." At the hearing, the Respondent's counsel was unable to get Brelage to testify that he had directed counsel to write a letter to the .Union until he defied an earlier admonition against leading questions and managed to extract a "Yes" from Brelage.28 Despite the foregoing, given Brelage's professed state of mind questioning the Union's majority status on the basis of the petition,.I cannot say the instruction to coun- sel to "expedite the petition" did not reasonably encom- pass an order to withdraw recognition Certainly the fail-. ure to countermand the withdrawal after the August 29 letter was written would indicate at least ratification of the action.- 29 26 This issue is complicated,-of course, by the problem of the status of the five disputed employees If, as the evidence shows, the-Respondent and the Union had agreed to exclude them from the bargaining unit, then four of the signatures on the petition would not represent unit employees That, of course, would reduce both the size of the unit and the number of relevant signatures . 27 The Board holds that a lack of majority membership is, by itself, an insufficient basis for termination of the relationship John Ascuaga's Nugget, 230 NLRB 275 fn 1 (1977) 28 The question was "Did you instruct me legally, or by legal means, to question the Union's majority status"" 29,The record also fails to show that Respondent even attempted to check the validity of the signatures on the petition It has been held, however, that the failure to authenticate signatures, in such a situation, Accordingly, given the constraints of stipulation and pleading which obtain here, I am led to conclude that I must dismiss all the allegations of the consolidated com- plaint relating to the withdrawal of recognition. The strongest of the viable issues, I think, has to do with what appears to be the leeway given to Brown and Col- lier to talk to other employees on working time. As dis- cussed, however, to. some extent employees were al- lowed to use working time for nonwork purposes (or did so, whether allowed or not); and the sight of the two men doing so may not have seemed very dramatic to the other employees. Moreover, the two apparently were scrupulous in not attempting to actually obtain signatures on worktime; and-there is no evidence that employees seeking to bolster support for the Union in similar fash- ion would have been more harshly treated. Consequent- ly, I cannot conclude that the apparent tolerance of the conduct of Brown and Collier materially and meaning- fully influenced their stature in the eyes of the other em= ployees. It may be noted that the cognizable matters here do not put this case ' in the category 'of such cases as Garrett Railroad Car & Equipment, 255 NLRB 620 (1981), and Texaco, Inc., 264 NLRB 1132 (1982),'in which the em- ployers thoroughly infused themselves into the decertifi- cation process in a manner which` scarcely brooked em- ployee resistance to signing Indeed;- that Brown and Collier may have secured only, at best, a bare majority of signatures after several weeks *of effort suggests that many of the employees- felt no intimidation at all, and that fact may offer the Union hope for recapturing its representative status through the electoral process. B. -The Request for Information As earlier stated, in the August 29 letter in which it declined to bargain, the Respondent also declined to fur- nish 13 items of information requested by the Union in its letter of June 30 and. reminder of August 19 The Re- spondent stated that "the collective-bargaining agree- ment and the information provided last year should pro- vide you with everything you desire. 'There have been no intervening changes in the employer's operation." The Respondent's reply on its face was plainly insup- portable in at least some respects. For example, since the first requested item asked for "the name and original date of employment, sex, age, martial [sic] status and number of dependents of all employees," and since the record shows that many employees were hired in 1983, the fore- going information obviously' was 'not found in the sources. cited in the Respondent's letter. That same con- clusion is almost certainly true of some of the other items requested by the Union Moreover, the Respondent failed to offer any evidence at the hearing to substantiate the claim that there. had been "no intervening changes in the employer's oper- ation " That being so; it is fair to assume that the infor- mation previously supplied to the Union may. not have been currently applicable. does not necessarily affect the efficacy of the withdrawal Guerdon Indus- tries, 218 NLRB 658, 660, 671 (1975) 1220 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD The law is clear that-the Union was entitled to have information of the nature sought by ' its June' 30 letter. San Diego Newspaper Guild Local 95 v. NLRB,. 548 F.2d 863, 866-867 (9th Cit. 1977).30 It is further settled that relevant information must be furnished without "unrea- sonable delay," Harowe Servo Controls, 250.NLRB 958, 959 (1980). The Respondent proffered no-explanation at the hearing for its failure to respond promptly to the Union's June 30 request - It is clear, of course, that Respondent was fully at- tuned to the progress of the employee petition as of June 30, and probably had decided,.with the filing of,the de- certification petition.on July 25, that it would not be bar- gaining with the Union about renewal of the bargaining agreement But the fact is that the Respondent, for what- ever. reason, did not choose to notify the Union of a de- cision to that effect until it dispatched its August 29 letter. Up to "that point, the Union was under a duty to prepare for negotiations; was obviously attempting.to do so, and was entitled to prompt receipt of the information requested or at least a timely explanation of why it would not be furnished. Ellsworth Sheet Metal, 232 NLRB 109 (1977) ("once the request for information was received, it was incumbent, on Respondent to react in some manner to the request"). I conclude that the Re- spondent's cavalier disregard of its plain statutory obliga- tion violated Section 8(a)(5). i C The Solicitation of Brown and Collier by Brelage As earlier discussed, Brelage's inducement of Brown and Collier to circulate an antiunion petition was clearly coercive and. an invasion of 'employee statutory rights. As also indicated, the Board held in Paul Distributing Co., 264 NLRB 1378 (1982), that it was appropriate to find an unalleged violation of the Act even when the re- spondent has not attempted to controvert- the General Counsel's testimony, where the matter is "related to the subject matter of the complaint" and the 'respondent had "ample opportunity to dispute it at the hearing", here, Brelage actually was asked about the episode at the hear- ing, and'I'disbelieved hts testimony. It thus appears that I am required to find that the Re- spondent violated Section 8(a)(1) by coercively instigat- ing the petition This conclusion may seem inconsistent with my earlier determination that I cannot rely upon this conduct in assessing the reliability of the petition as a ground for 'withdrawal of recognition, but I think the two can coexist. I reached the latter conclusion,-on the basis of a stipulation confined to "the issue of the propri- ety of the withdrawal of recognition by the Respond- ent"; while that agreement appears to rule out reliance upon the Brelage approach for purposes of that issue, it does not seem to preclude making other findings and conclusions about such evidence, which Paul Distributing otherwise requires me to do. Accordingly, I find that'the Respondent violated Sec- tion 8(a)(1) by coercively inducing Brown and Collier to circulate an antiunion petition. so As indicated, the Respondent's August 29 letter did not dispute the Union's right to have the data, but only attempted to claim that the Union had it already CONCLUSIONS OF LAW ' Respondent Indiana Cabinet Company, Inc._ is an employer engaged in commerce within the meaning of . Section 2(2), (6), and (7) of the Act. - 2. Local 334-236, United Furniture Workers of Amer- ica, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act 3 In the summer of 1983, by failing to timely furnish relevant information to t_he Union and to timely respond to the Union's request for such information, the Re- spondent, violated Section 8(a)(5) and (1) of the Act. 4. On. or about June 17, 1983, by coercively inducing employees. to circulate an antiunion petition, the, Re- spondent violated Section 8(a)(1) of the Act.. 5. The General Counsel has not shown, by, a prepon- derance of the evidence, that the Respondent violated the Act in any other manner. - THE REMEDY Having found that the Respondent violated the Act in certain respects, I will recommend the issuance of a cease-and-desist order and the posting. of traditional no- tices. In view of the fact that no recommendation is being made that the Respondent be required to bargain with the Union,' it would be pointless to -require Re- spondent to now furnish the Union with the information requested in 1983. - On these findings of fact and conclusions of law and on the entire record, I issue the -following recommend- ed31 - ORDER - The Respondent,_. Indiana Cabinet Company, Inc., Dubois, Indiana, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing to furnish relevant information to labor or- ganizations and to respond-to requests by labor organiza- tions in a timely manner, when required by law to so fur- nish information and to so respond. . (b) Coercively inducing employees-to circulate antiun- ion petitions. - (c) In any'like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action. (a)-'Post at its place of business in Dubois, Indiana, copies of the attached notice marked "Appendix."32 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Re- spondent's authorized representative, shall be posted by 31 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 32 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "_ ' INDIANA-CABINET CO 1221 ent to ensure that the notices are not altered, defaced, or the Respondent immediately upon receipt and maintained covered by any other material. for 60 consecutive days in conspicuous places including (b) Notify the Regional Director in writing within 20 all places where notices to employees are customarily days from the date of this Order what steps the Re- posted. Reasonable steps shall be, taken by the Respond- spondent has taken to comply.