Kokomo Tube Co.

KOKOMO TUBE CO. Kokomo Tube Company and United Steelworkers of America, AFL-CIO-CLC. Cases 25-CA-16543 and 25-RC-8036 16 June 1986 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 27 June 1985 Administrative Law Judge Harold Bernard Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. 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, I and conclusions only to the extent consistent with this Decision and Order. For the reasons stated in his decision, we adopt the judge's findings that the Respondent, through its supervisors Shriver and Cline, interrogated em- ployees Broke and Binkerd and threatened them with plant closure in violation of Section 8(a)(1) of the Act. We also affirm his finding that the Re- spondent's announcement and grant of an across- the-board 25-cent "merit" wage increase to its em- ployees in April 1984 violated Section 8(a)(3) and (1) of the Act.2 As discussed below, in agreement with the judge, we find that the Respondent grant- ed the increase to undermine the union organizing campaign. The record shows that for several months prior to April 1984 there were rumors of union activity circulating among the employees in the Respond- ent's plant. General Manager Huskins admitted that he was aware of these rumors. The judge found that these rumors were converted into open activi- ty on 24 April when union officials appeared at the Respondent's main gate and distributed 80 to 85 handbills announcing a union meeting on 26 April.3 i The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 8 The judge inadvertently omitted his 8(a)(3) finding from his Conclu- sions of Law. We shall amend them accordingly 8 The judge found that the Respondent was aware of this activity based on employee James Wagner's testimony that he saw one of the Re- spondent's supervisors, William Downhour, carrying a handbill into the 357 On the day of the union meeting, General Manager Huskins announced the wage increase at a plant meeting. In excepting to the judge's finding that the in- crease was motivated by the union activity, the Re- spondent argues that it had granted wage increases in every year but one since 1975; that these in- creases were always granted in April; and that General Manager Huskins' comments to employees had committed the Respondent to grant an increase in April 1984. We find the Respondent's arguments unpersuasive. As found by the judge, although the Respondent had a history of granting annual wage increases, they were always based on profitability. The record indicates that between 1975 and 1982, when the Respondent showed an annual4 profit, it grant- ed a wage increase, but in 1983 when the Respond- ent showed a loss, no increase was granted. Yet, in 1984 when the Respondent admittedly again showed a loss, it granted an increase. While the Respondent contends that its decision was based on the employees' overall good performance (i.e., "merit") rather than the union campaign, General Manager Huskins admitted that the Respondent had never before granted such an increase. Fur- thermore, all prior increases were effective during the first week of April of each year. In 1984, how- ever, the increase was not announced until 26 April and was not effective until 30 April. Although the Respondent contends this delay was necessary be- cause it was waiting to see its March financial report, the Respondent admits it ultimately an- nounced the increase without having seen the report. Finally, far from committing the Respond- ent to grant a wage increase in April, General Manager Husking testified that he merely told the employees that he had recommended a raise to top management.5 plant. The judge discredited Downhour's denial that he had seen any handbilling before the petition was filed on 2 May, and that he had ever carried a handbill into the plant , based in part on his following testimony: Q How do you know the handbills were handed out after the pe- tition? A It's impossible for me to put a specific date on the passing out of the handbills. Q You testified because that's the, that's when the petition was filed That's what you were told to testify, right? Answer yes or no A Yes. Pursuant to the General Counsel's motion and his own recollection, the judge corrected the above testimony so that the General Counsel 's latter question read, "You testified because that's the company line , that's when the petition was filed." The Respondent excepts to the judge's ruling. We find it unnecessary to pass on the judge's ruling insofar as Downhour's uncorrected testimony above clearly manifests his unreliability as a wit- ness 4 Contrary to the judge , we have found no evidence in the record that the Respondent showed a "monthly" profit from 1975 to 1982 5 Chairman Dotson notes that, while he agrees with his colleagues that the preelection wage increase violated Sec 8(a)(3) and ( 1), he does not Continued 280 NLRB No. 35 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not affirm, however, the judge's fmding that the election should be set aside as a result of the Respondent's unfair labor practices. 6 The judge recommended setting the election aside based on the following unfair labor practices which he found occurred during the critical period: (1) the unlaw- ful wage increase; (2) Supervisor Shriver's coercive interrogation and threat of plant closure to employ- ee Broke; and (3) Shriver's separate threat of plant closure to employee Binkerd. For the reasons dis- cussed below, we find that these unfair labor prac- tices do not warrant setting the election aside. It is undisputed that the wage increase was both announced and effective before the petition was filed. Accordingly, contrary to the judge, we find that the wage increase occurred before the critical preelection period and, under the Board's long- standing Ideal Electric7 rule, cannot serve as a basis to set aside the election.8 Second, the record also does not support the judge's finding that Shriver's interrogation and threat of plant closure to employee Broke occurred postpetition. In so finding, the judge cited Broke's testimony that the conversation had occurred 2 weeks after the 26 April meeting where Huskins announced the wage increase. Broke's testimony in this regard is ambiguous at best, however, as shown in the following exchange: Q. Now when did this conversation take place in regard to the last meeting with Mr. Huskins? A. A couple of weeks after, a week or two. Q. When was that? A. In April. agree with their analysis. As he has stated on previous occasions, a proper analysis of a preelection benefit must first examine whether the General Counsel established a prima facie case of unlawful motivation, before examining the Respondent 's proffered justifications for granting the benefit. See Adams Super Markets, 274 NLRB 1334 (1985) Here, the Chairman finds, based in part on the Respondent 's contemporaneous vio- lations, that the General Counsel made a prima facie showing that the wage increase was unlawfully motivated Further, for the reasons out- lined by his colleagues, he agrees that the Respondent failed to rebut that showing 6 The election was conducted pursuant to a Stipulated Election Agree- ment The tally of ballots shows 35 for and 40 against the Union, with 2 challenged ballots, an insufficient number to affect the results Ideal Electric & Mfg Co., 134 NLRB 1275 (1961). We reject the judge's conclusion that the Board in Scott Glass Prod- ucts, 261 NLRB 906 (1982), modified the Ideal Electric rule to allow con- sideration of a prepetition wage increase which is not actually received by the employees until after the petition is filed In Scott Glass not only did the employees receive the increase postpetition, but the effective date of the increase was postpetition In Ideal Electric, and here, while the em- ployees received the increases during the critical period , the increases were both announced and effective before that period Moreover, con- trary to the judge, we do not believe a different result is required simply because the Respondent referred to the wage increase in a postpetition letter to the employees The letter on its face is innocuous-listing all wage increases since 1975 with no special emphasis on the 1984 in- crease-and the letter is not specifically alleged by the General Counsel or the Union, or found by the judge, to be unlawful or objectionable Further, Broke earlier testified that his conversa- tion with Shriver occurred before his similar con- versation with Supervisor Cline, which Broke ad- mitted and the judge found occurred in April. And at still another point in his testimony, Broke testi- fied that the Shriver conversation occurred between two union meetings, both of which were in April. Based on this testimony, contrary to the judge, we are unable to conclude that this conversation oc- curred during the critical period. Accordingly, this conversation cannot serve as a basis to set aside the election. Third, in our view, Shriver's remark to employ- ee Binkerd in mid-May that "I guarantee Kokomo will shut down if the Union comes in" is not alone a sufficient basis to set aside the election. There are 75 to 80 employees in the unit and there is no evi- dence that Shriver's remark was disseminated.9 Further, the conversation occurred over a month before the election. Under these circumstances, we are unable to conclude that this single incident af- fected the results of the election.1 ° Accordingly, we find that a certification of results of election should be issued. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3 and 4. "3. Respondent violated Section 8(a)(1) and (3) of the Act by announcing and granting to employ- ees a wage increase in April 1984 in order to dis- suade them from supporting the Union, and Section 8(a)(1) by engaging in unlawful interrogation of employees and by threatening employees with plant closure if they voted for the Union. "4. Respondent's unfair labor practices do not constitute objectionable conduct warranting that the election conducted on 22 June 1984 be set aside." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Kokomo Tube Company, Peru, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. a Contrary to the judge, we will not presume dissemination of Shriv- er's remark Nor, contrary to our dissenting colleague , are we persuaded that dissemination can be inferred from the circumstances of this case 10 See Metz Metallurgical Corp, 270 NLRB 889 (1984) KOKOMO TUBE CO. 359 CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for United Steelworkers of America, AFL-CIO-CLC, and that it is not the exclusive representative of the bargaining unit em- ployees. MEMBER JOHANSEN, dissenting in part. Contrary to my colleagues, I would set aside the election in this case based on Shriver's postpetition remark to employee Binkerd that he could "guar- antee" that the Respondent would close the plant if the Union won the election. Although there is no direct evidence that Shriver's remark was relayed to other employees, I would infer dissemination in the circumstances of this case. Shriver's remark constituted a serious threat, effectively warning that not only Binkerd but all employees would lose their jobs if they voted for the Union. The judge also found that Shriver made his remark after handing Binkerd a company letter describing the recent shutdown of two competitors due to, inter alia, "high labor cost." The testimony of both Shriver and Cline indicates that they handed this letter out to other employees as well.' Further, while the unit was relatively large, the Union lost the election by only five votes. Under these cir- cumstances I cannot conclude that Shriver's remark was de minimis. Accordingly, I would direct a new election. 1 Cf Crompton Co, 272 NLRB 1121 (1984) (inferring dissemination of supervisor's unlawful threats since supervisor admitted conversing with all employees under his supervision about pending election , despite lack of evidence that supervisor repeated threats in those conversations) Robert E. Hayes, Esq., for the General Counsel. George H. Baker, Esq., of Indianapolis, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrataive Law Judge. I heard this matter 27 November 1984 in Peru, Indiana, on complaint allegations consolidated for hearing with iden- tical representation election objections alleging that Re- spondent had engaged in interrogation, threats of plant closure, and the grant of a wage increase to employees in violation of Section 8(a)(1) and (3) of the Act, warrant- ing appropriate remedial action as well as an order set- ting aside the election results in Case 25-RC-8036.11 On the entire record, 2 including the demeanor of the witnesses and briefs filed by the parties, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent, an Indiana corporation engaged in the manufacture of steel tubing in Peru, Indiana, is admitted- ly an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act, and it is so found. Further admitted and found is that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Wage Increase 1. Background Aside from germane references to background matters, the timespan within which relevant events occur is from July 1983 through June 1984. Respondent's steel tubing manufacturing operations, employing at times some 75 or 80 production , mainte- nance, and truckdriving employees, showed a monthly profit annually from 1975 to 1982, and Respondent grant- ed wage increases, in varying amounts based on individ- ual and different job classifications, to its employees each of those years in the month of April. (G.C. Exh. 2.) However, after early 1982, as described by General Manager Gene Huskins, there ensued an unprofitable period extending through 1983 and no April wage in- crease was granted to employees that year, 1983. 2. Employee union activity and Respondent's knowledge Manager Huskins testified that he heard employee talk about dissatisfaction and that a union might help the situ- ation from July 1983 onward. He denied knowing about any union "activity"-organizational drives-until 2 May 1984, describing what he heard beforehand as union talk and rumors going around for several months. The record reflects a good bit more than talk and rumor entailing employee activities was occurring and was known to Re- spondent prior to 2 May 1984. Thus, employee Bruce Binkerd testified that in mid-April 1984 his Supervisor Scott Shriver, in a conversation discussed further below, told Binkerd he heard there was a union trying to orga- nize and asked him why he thought a union ought to come in. Shriver did not recall such a conversation. Randy McKay, a Steelworker local union president, tes- tified that he and an International union representative and two other members in the local union distributed union pamphlets to employees at the main gate to Re- spondent's plant on 24 April 1984-handing out some 80 to 85 pamphlets between 2 and 4 p.m. The pamphlets an- nounce a meeting at the union hall on 26 April "to Answer All Your Questions, Concerns, and Fears Con- 1 The tally showed 35 votes cast for the Petitioner and 40 against. (G.C Exh 1(g) ) 2 The General Counsel's motion to correct the transcript is granted. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning Your Efforts In Becoming a Member of the United Steelworkers of America." (G.C. Exh. 5.) McKay further testified that there had been a union meeting ear- lier, before the 26 April meeting, for midnight and day- shift employees at which the Union received between 25 to 30 signed authoriation cards from Respondent's em- ployees. The parties stipulated that the first union au- thorization card signed by an employee was signed on 16 April. Employee James Wagner testified that he saw Supervi- sor William Downhour with a pamphlet (G.C. Exh. 5) during the 24 April union handbilling while Wagner was leaving the plant and Downhour was entering. Down- hour recalls that the Union handed out pamphlets at the plant on two occasions but could not recall the dates. Downhour, however, asserted without supporting clarifi- cation that the date "would have been after 2 May" after further questioning by Respondent's attorney. On cross- examination Downhour admitted he had placed this date when the handbilling took place as after 2 May-the date the Union's petition was filed, because that "was the company line." Furthermore, although Downhour, when first questioned about whether he had carried a union handbill into the plant responded, "I do not recall," and again testified during recross-examination that he did not recall doing so, next testified he had never carried a handbill into the plant, erroneously asserting that this was his testimony only moments earlier. Based on Downhour's admittedly rehearsed and biased account, his hostile demeanor, and the manifested unreliability in his recollection, his disclaimer is not credited and Wag- ner's account, straightforwardly rendered, is relied on. Supervisor Randy Cline testified he had a conversation with employee Mike Broke about things going on in the plant in late April toward the beginning of May 1984 in which Broke said he thought outside help was needed as he could not relate to Huskies. Cline wondered aloud if there was any reason why Broke could not go on a one- on-one basis with Huskins and keep it inside the plant, recalling that Broke said employees needed something from an outside source to help them. Supervisor Cline admitted on cross-examination that these questions and answers related to the Union, and that there was "quite a bit" of talk going around the plant regarding the Union in April and early May, including discussions between Cline and his fellow supervisors. I consider that the openness of the employees' union activities in and nearby the plant, wherein supervisors and employees discussion concerning employee union ac- tivities occurred from July 1983 throughout the ensuing 12 or more months, and including union campaign efforts also known to Respondent's supervisors are compelling reasons to conclude Respondent had actual knowledge whether considered direct or imputed concerning em- ployee union activities prior to its grant of a wage in- crease on 26 April.3 Collins & Aikman Corp., 187 NLRB 8 Huskin's denial that he had ever seen the pamphlet distributed by the Union on 24 April until after the Union filed its petition on 2 May is im- material given his admission that he knew about employee union talk from July 1983 onward-as did his plant supervisors-and given supervi- sory knowledge concerning the handbilling , which is properly imputed from Supervisor Downhour to Respondent Moreover , an obvious eager- 620, 625 (1970); Omsco, Inc., 273 NLRB 872 (1984), and Kimball Tire Co., 240 NLRB 343, 344 (1979). As admitted by Huskins, Respondent's policy in this regard, that is, union representation, held that employees did not need representation as problems could be con- trolled internally and therefore Respondent wanted to avoid being unionized "within the framework of the law." 3. Respondent's past practice of wage increases As noted above, Respondent had granted employees yearly wage increases during profitable periods, 1975 through 1982 measuring out different increases to differ- ent job classifications, such as foundry pourers, whose rates rose from a 1975 level of $4.50 to a 1982 level of $7.61; welders A $4.90 to $9. 11, and maintenance A ma- chine A $5.15 to $9.11. No raises were paid in 1983 following a profitless period after early months of 1982-said profitless period (except for a small improvement in January 1984) con- tinuing through 1983 and the events described herein in 1984. In January 1984, during a monthly information meet- ing with plant employees, Huskins told them it was too early to make a committment, yes or no, regarding a wage increase because a wage increase was tied to prof- itability, and he had not seen the numbers to warrant concluding there was a profit in company operations. He testified, however, that in other January discussions, with Owner Michael Kral and Ron Pflueger, he recommend- ed, "[W]e give them a raise based on what I'd seen, they were going for my program starting in November, per- formance level being high." No authorization then ensued. In a later employee meeting in March, Huskins told employees he had recommended "the increase" to top management and would not discuss it until the April meeting. He testified to March discussions with Kral, who was the person who had to give the green light, in which Kral, "was still saying from our financial state- ment to look at March." Although February figures showed a break-even performance, Huskins stated he considered that good because shipments had been cur- tailed by bad weather. On 16 April Huskins again met with employees and in- formed them he had recommended a raise to Kral but that Kral was still waiting for the "financials" to come in; and as soon as Huskins found out what they were he would get back to them. Huskins then testified that there ness to deny Respondent's knowledge concerning the union campaign arises on Huskins' part from his testimony that the New York-based owner did not have knowledge concerning such union campaign-to Huskins' knowledge because either he or another plant official, Vice President Ron Pflueger , would have had to have told the owner Yet nei- ther the owner nor Pflueger was called on to testify Huskins was not shown to be in any position to say what the owner did not know , nor did he explain how or even whether he knew what Pflueger knew concern- ing these events, or even what Pflueger may have, or not have, told the owner This left the Respondent's denial of knowledge unsupported and unpersuasive, as did Huskin's weakly rendered response to the question whether he was aware of any union activity before 2 May which would include the Union's 24 April 2-hour long handbilling under the quise of company office persons, that "[not] to my knowledge " KOKOMO TUBE CO. were daily discussions going on among him, Pflueger, and Kral at this time, with Huskins informing Kral and Pflueger it was imperative that Respondent grant employ- ees an increase because the performance level was so much better. There is nothing in the record to support the imperativeness or urgency behind the alleged daily meetings on this subject, especially as Huskins testified the improved performance had been evident since he as- sumed the position of manager in November 1983, other than the accelerated pace in employee efforts to secure "outside" representation, and the Union' s campaign, dis- cussed below. Moreover, I consider Huskins' account of "daily discussions" unsupported, self-serving exaggera- tion. In any event, the 16 April meeting was followed by still another meeting among Huskins, Kral, and Pflueger in which Huskins allegedly sought a wage increase based on employee performance and because the Company had been doing "much better" since November 1983. On 24 April the Union handbilled the plant announc- ing a meeting for employees to be held on 26 April. On that day, 26 April, after only 1 day had elapsed since the handbilling, Huskins announced to employees in a plant meeting an immediate across-the-board merit wage increase of 25 cents an hour for all plant employ- ees, which employees received on 6 May, 4 days after the union petition was filed on 2 May. This was the first time in the Company's history that employees received a merit increase, nor was there provision for any such type increase in the Respondent's employees personnel hand- book. During his testimony, Huskins admitted that, in fact, the March figures showed a loss, notwithstanding which the wage increase, earlier tied to profitability so far as the employees were informed on numerous occasions (and also, it should be noted, as reportedly told to Hus- kins by Kral), was granted. Huskins, further, was unable to say when he received the March figures but was as- sertedly sure he did not know what the March figures were when the increase was announced. Manifestly, it is difficult to believe this assertion, given the fact that a wage increase was repeatedly tied to profitability by Huskins and Kral, and thus it is reasonable to suppose references to that question would have been made be- forehand, unless the Union's campaign handbilling influ- enced a change in plans, because no other reason appears present for the unprecedented action swiftly timed on the heels of the Union's activity. Huskins admitted that one of the reasons for March's poor result was "some of the performance levels not being where they should in certain areas," so that neither a profit basis for the in- crease, or the so-called all around "much better perform- ance" materialized in March, yet the wage increase was granted. Further, on this pivotal inquiry into Respondent's motive, Respondent offered only Huskins' testimony that Owner Kral told him on 26 April to go ahead and give an increase if he felt Huskins had "this thing on the road to recovery or stablized." Yet Huskins had allegedly been telling Kral that this was the case since November 1983. Neither Kral nor Pflueger, the former with author- ity to give Huskins the green light, was offered to testify, 361 though it was Kral who decided to grant the unheralded merit increase and Pflueger, according to Huskins, played a significant role in the discussions leading to the decision. Even under Huskins' uncorroborated account, no reason for the timing of the announcement so near heightened union activity is advanced, and no reason is even attributed to Kral's decision-making why the earlier criteria of profitability or even a look at the "financials" for March are both suddenly jettisoned for an immediate merit increase on 26 April. In my view, Respondent failed therefore to show that the timing or announcement of unprecedented grant of a merit wage increase across the board on 26 April, admit- tedly a departure from its past policy and made during the Union's organization effort, was tied to economic considerations related to legitimate business concerns, rather than as a tactic to influence employees to reject union representation. Respondent failed to "show by ob- jective evidence that it would have made the same grant or announcement of benefits had the union not been present." Village Thift Store, 272 NLRB 572 (1984). As such, this action violated Section 8(a)(1) and (3) of the Act as the merit increase unlawfully interfered with the exercise of rights of the Respondent's employees under Section 7 of the Act to choose or reject such representa- tion free from improperly discriminating influence. Scott Glass Products„ 261 NLRB 906, 910 (1982), Allied Letter- craft Co., 272 NLRB 612 (1984), and Simpson Electric Co., 249 NLRB 148, 152, 153 (1980). Lending further authority to this finding and flowing from Respondent's failure to produce or explain the ab- sence from the witness stand of Owner Michael Kral, who had the best knowledge about the reason why the merit increase was granted, is the established legal maxi- mum that the production of weak evidence (Huskins' ac- count of why Kral granted the increase) when strong is available but unexplainedly not produced warrants the inference that the strong (Kral's own account) would have been adverse. Goodyear Tire Co., 271 NLRB 343 (1984), citing Martin Luther King Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977), Certified Service, 270 NLRB 360 (1984); G.C. Murphy Co., 223 NLRB 604 (1976), enfd. 550 F.2d 1004 (4th Cir. 1977), and Interstate Circuit Inc. v. United States, 306 U.S. 208, 226 (1938). Equally cogent is the unexplained failure on Respondent's part to produce the vice president, who played a major role in the decision-making either to explain matters or corrobo- rate Huskins' account. Collins & Aikman Corp., 187 NLRB 620, 626 fn. 30 (1970), and cases cited. Additionally, I cannot rely on Huskins' testimony about why Respondent granted this wage increase, be- cause it was Kral who did so, not Huskins, and Kral did not testify concerning the reason he authorized the in- crease-nor did the other management official equally as knowledgeable as Huskins concerning events-if not more so because he was Respondent's vice president. Consequently, for these additional reasons, I conclude Respondent has failed to present a satisfactory explana- tion or carry its burden of proving the increase was not tied to the union campaign and union activities of its em- ployees, namely, that Huskins' account , sometimes exag- 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gerated and unsupported by events and therefore not al- together reliable or controlling, however evaluated in terms of credibility, is simply insufficient to establish Re- spondent's motive for the wage increase was lawful, as it was Respondent's duty to do.4 (Cases cited above.) 4. Whether the unlawful wage increase is a basis to set aside the election results The Respondent granted the unlawful wage increase on 26 April 1984, several days before the election peti- tion was filed on 2 May and employees received the in- crease on 6 May; consequently, Respondent argues, such wage increase occurred before the critical preelection period and therefore cannot serve as a basis to set aside the election results and conduct a second election. Re- spondent correctly states the Board's general rule. Micro Met! Corp., 257 NLRB 274, 280 (1980); and Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). However, it is equally well established by Board law that events occur- ring prior to a petition for election being filed can be considered in determining whether a party has engaged in objectionable conduct when such events give meaning and dimension to events occurring within the critical period after the petition is filed. Blue Bird Body Co., 251 NLRB 1481 fn. 2 (1980), Parke Coal Co., 219 NLRB 546, 547 (1975), and Dresser Industries, 242 NLRB 74 (1979). Thus, the unlawful nature of the grant of the wage in- crease here-or announcement of it on 26 April if you will-can be considered when evaluating the payment or receipt of it by employees in their paychecks on 6 May and thus this postpetition event considered as the actual fruit or product of a benefit unlawfully designed before- hand may be considered as objectionable conduct. But, Respondent argues, the Ideal Electric decision, cited above, stands for the proposition that it is the announce- ment not the payment that it pivotal-a valid argument if the resolution of this question were confined to a consid- eration of the 1961 decision in Ideal Electric. Since then, however, the law has developed further and the Board has not only allowed a look at prepetition conduct to better evaluate postpetition conduct, but has adopted the view that "[t]he actual grant and payment of the raise should properly be considered as a distinct violation, re- lated to, but not merged with the violation of announc- ing or promising the raise. Cf. Baker Bush Co., 233 NLRB 561 (1977)." Scott Glass Products, supra at 920 fn. 26. This being true, it is clear that the payment within the period after the petition was filed in the instant case "should properly be considered a distinct violation, relat- ed to, but not merged with, the violation of announcing ... the raise." Doing so, it is clear, and I find, that such payment constituted objectionable preelection conduct. There is, moreover, an independent, yet further basis to conclude this. In the Board's decision in United Foods," 4 Kral, after all, was not an altogether "absentee" owner or disinterest- ed about these events, for even if Huskins' account of "daily meetings" by management on the subject of the wage increase is adjusted for infla- tion, it is clear that Kral and his subordinates discussed the matter fre- quently, it being clear Kral alone had the authority to give the "green light" for the increase 5 170 NLRB 1489 (1968) respondent had reached a decision found to be unlawful- ly motivated to grant an increase before the filing of an RC petition, but made later references to the wage in- crease postpetition. The Board held such references "constitute an independent basis supporting the Trial Ex- mainer's finding, which we adopt, that Respondent en- gaged in conduct requiring that the election be set aside." 170 NLRB at 1490. In this case-the United Foods decision-Respondent abstained from paying the unlawfully generated increase but its reference to its postpetition during the election campaign sufficed to constitute a specific basis to set aside the election. It follows by analogy to such decision that here, when Respondent not only paid the unlawfully granted wage increase employees, postpetition, but also referred to it in communications with its employees post- petition and before the election on 19 June, the week of the election, in a widely distributed letter setting forth the increase, and adverting to improvements possibly due to employee cooperation without employees having to pay union dues, that an even stronger case for finding the Respondent's postpetition conduct objectionable is present herein. (G.C. Exh. 2.) B. The Threatened Plant Closing and Interrogation Maintenance employee James Wagner, employed 8 years in Respondent's plant, testified that he and Mainte- nance Supervisor William Barkhaus talked about the Union frequently in the morning, when Wagner came in during the "shifting"-during the morning, that the two of them would sit around and the conversation about the Union came up quite a bit, from the "beginning" and "more frequent" towards the election. Wagner testified that Supervisor Barkhaus told him Owner Michael Karl could be stubborn, did not have to answer to the board of directors or the Union if the he did not want to and that "he could just shut the doors." Wagner testified that Supervisor Barkhaus told him the employees at another plant, Denment, which Wagner assumed was owned by Kral-a fact which Huskins asserted during his testimo- ny to be true (as did Barkhaus)-went out on strike and Kral "did not want to mess with the union so he shut the doors." Barkhaus could not recall the month of a con- versation he had with Wagner which differed substantial- ly from Wagner's account. However, in view of the fail- ure of the Gerneral Counsel to elicit any date or even approximation of time or period of time when the al- leged talk occurred, it is obvious that no reliance can be made thereon for purposes of this proceeding. Not only is Wagner's testimony that he and Barkhaus had frequent talks concerning the Union "from the beginning" and to- wards the election meaningless for this purpose, but Wagner was also simply never asked when the specifical- ly described talk had taken place other than if he knew the month. 1. Employee Binkerd and Supervisor Shriver Employee Bruce Binkerd testified concerning two conversations with his supervisor, Scott Shriver, one in mid-April 1984 and the other closer to May. In the first, Binkerd testified that Supervisor Shriver came to him KOKOMO TUBE CO. and asked, "Well, Bink, what's going on. I heard there was a union trying to organize." Binkerd told Shriver they were on company time and he would rather not talk about it right then. Shriver, who had assigned Bin- kerd his work for the evening, nevertheless followed the employee to his work area and kept asking him why he thought a union ought to come in, whereupon Binkerd referred to the need to more effectively cope with wors- ening safety conditions in the plant. Shriver did not recall such a conversation with Binkerd, but did not deny the described incident. Binkerd at first placed the second conversation closer to May and then corrected himself to "later on in the month of May," more than likely accurate because the talk revolved around a company letter to employees dated 23 May 1984. Binkerd testified that Shriver showed him the letter (G.C. Exh. 4), and told him to read it, "right now." When the employee had finished reading the letter which described the closing of oper- ations by two competitors of Respondent due to, "Poor business conditions, low volume, low prices and high labor cost," Shriver asked the employee if he had any questions and after Binkerd replied no, Shriver said, "I guarantee Kokomo will shut down if the union comes in." Binkerd told Shriver he "can't say that to me," and Shriver then replied, "Well Kokomo could too." For Respondent to meet the detailed particulars in the testimony credibly rendered by Binkerd it behooved Re- spondent to either break down the account in cross-ex- amination or by a reasonably specific series of denials by its own witness, Shriver, of the employee's testimony, have the two versions meet head-on, leaving the determi- nation of the facts to be based on a credibility resolution. Respondent achieved neither-instead, Shriver could merely not recall an April conversation with Binkerd as the latter had described, whereupon Respondent had Shriver describe how Binkerd had once come to him in April and asked him about the Union, and so forth. Regarding the second conversation, Shriver at first placed it in April, a month before its actual occurrence sometime in May after 23 May and was only able to cor- rect himself after Respondent counsel led him. Further, once again Respondent counsel did not meet the oppos- ing witness' testimony head-on, that is, he did not ask Shriver to admit or deny Binkerd's account but instead went off in a different direction on his own asking Shriv- er merely what the latter recalled concerning that con- versation. After Shriver stated only that Binkerd had asked him whether there was a possibility the Company could close and Shriver said he said there was a possibili- ty, counsel asked merely, "Anything else" and Shriver stated "no." I find that Binkerd's reasonably specific allegations in his believably rendered accounts of both conversations with Shriver called for some reasonable, specific re- sponses on Shriver's part by way of denial rather than vague references to, for all that fairly appears, uncon- nected fragmented remembrances on Shriver's part of no probative value as not demonstrated to be material to Binkerd's testimony. I therefore credit Binkerd's account and find that Respondent, via Shriver, unlawfully inter- rogated Binkerd at his work area in mid-April 1984, and 363 that Respondent, also through Shriver, unlawfully threat- ened Binkerd with a plant closing if the Union came in, between 23 May and the end of that month, thereby vio- lating Section 8(a)(1) of the Act.6 The finding of unlawful interrogation arises from the fact that the context for Shriver's questioning of Binkerd, who was not shown to be a known union supporter, indi- cates a hostility by Shriver towards union represenation manifested by his ignoring Binkerd's polite refusal to dis- cuss the questioning during company time and following Binkerd to his work station where he persistently contin- ued the interrogation-all in a locale where by dint of his superior position in the workplace Shriver's conduct was coercive. Furthermore as discussed below, these is evidence that Shriver engaged in interrogation of other employees as well, and I do not believe Binkerd's re- sponse-vaguely attributing the need for union represen- tation to "safety concerns"-belies or negates any infer- ence he might have feared reprisal. Dora! Building Serv- ices, 273 NLRB 454 fn. 4 (1984). Cf. Crompton Co., 272 NLRB 1121 (1984). The subsequent statement by Shriver to Binkerd that he guaranteed that "Kokomo will shut down if the union comes in" was made against the background of earlier unlawful interrogation setting a plainly coercive context for the express threat of a loss of employment for all em- ployees should they vote the Union in-no ifs, ands, or buts-and the effect of this threatened, unconditional plant closing should the employees choose union repre- sentation was not wholly ameliorated by Shriver's amendment that "Kokomo could too" (close). I find the threat was a calculated interference with employee Sec- tion 7 rights. Donnelly Mfg. Co., 265 NLRB 1711 (1982), and Western Waste Industries, 274 NLRB 175 (1985). It is understandable why, as Binkerd testified, the words used by Shriver, "I guarantee Kokomo will shut down if the union comes in" would stick in his mind and, absent proof to the contrary, it is reasonable to presume this se- rious threat to employees' livelihood would be circulated among employees throughout the plant. RJR Archer, Inc., 274 NLRB 335, 336 (1985). 2. Employee Broke and Supervisors Shriver and Cline Employee Mickey Broke testified that 2 weeks after the 26 April meeting in which the merit wage increase was announced by Manager Huskins, he was at his work area when one of his supervisors, Scott Shriver asked him for his opinion concerning the Union. Broke, who had 6 years' seniority, and was not shown to be a union supporter, testified as follows, "He [Shriver] asked me what my opinion was of the union, was I surprised. I tried not to commit myself. He stated that it wouldn't, between the union and the company, it wouldn't work and things could get pretty tough and there was a possi- bility that they could close their doors." Shriver did not recall the above conversation, and testified he only re- called "a conversation with Mr. Broke about the union," 6 This prepetition interrogation does not constitute objectionable con- duct. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which Respondent's 23 May letter, described above, was briefly discussed-Shriver asking Broke if he had any questions and Broke replying no. Shriver was not asked to deny the details in Broke's account nor did he take issue with Broke's testimony concerning Shriver's flat declaration that it would not work between the Company and the Union, things could get tough and possibly "they" could close the doors. Shriver's conduct, I find, amounted to a continuation or repetition of his un- lawful interrogation of employee Binkerd, for the reasons noted above, and his linkage of a possible closing of the plant, as things could get tough because it would not work between the Company and the Union clearly raised the spectre of a loss of employment should the Union represent employees-a substantial interference with em- ployee rights under Section 7 of the Act as not shown to be based on objective economic factors but merely the clearly implied result if the employees chose union repre- sentative. I therefore conclude on the basis of the above- cited authority that Shriver's conduct further violated Section 8(a)(1) of the Act and also, occurring some 2 weeks after 26 April and therefore after the petition- filing on 2 May constituted objectionable conduct. Broke also testified to being questioned about his feel- ings towards the Union 2 or 3 weeks after the 26 April meeting announcing the merit pay raise, by another of his supervisors, Randy Cline-portions of which conver- sation are described above. During cross-examination, however, Broke corrected himself after reference to an affidavit and placed the questioning by Cline in April. Broke stated that Supervisor Cline, who was in the area inspecting tubes, while Broke was in his work area-inspection area number 2-asked him what his opinion was of the Union, and "what I found out." He testified that Cline asked him why he and employees could not communicated with Plant Manager Husking without outside interference. Broke expressed a noncom- mittal opinion, after which Cline said if it did not work between the Union and the Company did Broke not think it was possible the Company could close the doors. Cline's account under questioning coincides with Broke's and Cline does not deny his reference to plant closing. On the surface, and given the further fact that the two were long-time acquaintances, there is room for the belief that the above discussions were merely centered around the expression of possible effects of unionization by Respondent's supervisor, particularly as Cline used the word if and this Cline's conduct was lawful, Tri-Cast Inc., 274 NLRB 377 (1985). However, as has been noted before, such allegations are better evaluated when viewed in the context of events. Donnelly Mfg. Co., supra, the dissent. Doing so, it is clear that Respondent, through the ac- tions of Supervisor Shriver towards Binkerd and Broke, linked employee support for the Union with a plant clos- ing, a dire flat out prediction which became a recurrent theme via Respondent's otherwise permissible reference to such possibility given economic postulates in its letter to employees and the far less economically connected statements to employees by Shriver and Cline. It seems to me that whatever Respondent's intentions may have been to lawfully express its position on employee repre- sentation as permitted by Section 8(c) of the Act, that the distinction between economically based possibilities of a plant closing-as reflected in the 23 May letter to employees-and threats of reprisals-like or reflex-like plant closings in the event of unionization became so blurred by supervision's conduct that it can fairly be concluded that employees exercise of Section 7 rights were unlawfully impeded. Respondent's persistent and unwarranted questioning of its employees, accompanied as it was by threats of a plant closing constituted coer- cive interrogation proscribed by Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984); and West- ern Waste Industries, supra. I therefore conclude that Cline's questioning of Broke was unlawful interrogation into an employee's union sentiments arising in the contest of unlawful predictions of a plant closing if employees secured the Union as their bargaining representative, vio- lations of Section 8(a)(1) of the Act.7 3. The representation election In view of the foregoing, including Respondent's un- lawful grant of a wage increase, interrogation of employ- ees, and threats of a plant closing should employees select union representation, viewed cumulatively created an atmosphere in which a fair election could not be con- ducted. In such circumstances, especially where the elec- tion results were so close, I do not view the election as reflecting the free choice of the employees. Accordingly, it will be recommended that the Charging Party's objec- tions be sustained in the respects noted above, that the election be set aside, and that the case be remanded to the Regional Director for the purpose of conducting a second election. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce as alleged. 2. The Union is a labor organization as alleged. 3. Respondent Company violated Section 8(a)(1) of the Act by granting employees a wage increase on 26 April 1984 in order to dissuade them from supporting the Union, by engaging in unlawful interrogation of employ- ees concerning their opinion and sentiments towards the Union, and by threatening plant closure if employees se- lected the Union to represent them, as described herein- above. 4. Respondent's conduct in connection with the an- nouncement and grant of the wage increase paid to em- ployees on 6 May and its unlawful interrogation of and threats of plant closure communicated to employees fol- lowing the Union's filing of a representation petition in Case 25-RC-8036 on 2 May 1984 constituted objection- able conduct warranting that the results in the election be set aside and a new election conducted. REMEDY To remedy the unfair labor practices found above, Re- spondent will be directed to cease and desist from engag- 7 These violations occurring prepetitlon do not therefore constitute ob- jectionable preelection penod conduct. KOKOMO TUBE CO. ing in such conduct or like or related conduct and to post the attached notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Kokomo Tube Company, Peru, Indi- ana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Granting employees a wage increase to dissuade them from seeking union representation. (b) Coercively interrogating employees about their protected union activities. (c) Threatening employees with plant closure if the employees select the Union to represent them. (d) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facilities in Peru, Indiana, copies of the notice attached hereto as "Appendix."9 Copies of said notice, on forms provided by the Relgional Director for Region 25, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicu- ous places, and be maintained for a period of 60 consecu- tive days thereafter. Reasonable steps shall be taken to insure that the notices are not altered, defaced or cov- ered by any other material; (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 8 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 e 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 365 (c) Nothing herein shall be construed as requiring Re- spondent to withdraw, cancel, or rescind the 26 April 1984 wage increase. IT IS FURTHER RECOMMENDED that the results in the election conducted on 22 June 1984 in Case 25-RC-8036 be set aside and this case be severed from Case 25-CA- 16543 and remanded to the Regional Director to conduct a new election. 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 or- dered us to post and abide by this notice. Wi, WILL NOT coercively interrogate our employees about their protected union activities. WE WILL NOT threaten our employees with plant clos- ing if they choose United Steelworkers of America AFL-CIO, CLC or any other labor organization as their collective-bargaining agent. WE WILL NOT grant employees a wage increase to dis- suade them from supporting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. KOKOMO TUBE COMPANY