Morgan Services, Inc.

862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Morgan Services, Inc. and Local Union No. 3017, Laundry and Dry Cleaning International Union, AFL-CIO and Christana Farris, Petitioner. Cases 25-CA-17770, 25-CA-17770-2, and 25- RD-924 30 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 18 June 1986 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief. The General Counsel filed limited cross-exceptions, a supporting brief, and an answering brief. The Union filed its posthearing brief to the judge and filed an answering brief to the Respondent's exceptions.' 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, 2 and conclusions as modified below 8 and to adopt the recommended Order. 1. The judge found that the Respondent's pro- duction manager, Arthur McHargue, coercively in- terrogated employees Mary Phelps, Jackie Ann Abbott, and Sharon Rice, thereby violating Section 8(a)(1) of the Act and engaging in objectionable conduct warranting setting aside the 10 January 1980 decertification election. Applying the frame- work for analysis in Rossmore House, 269 NLRB 1176 (1984), 5 and Sunnyvale Medical Clinic, 277 1 The Respondent's posthearing motion to supplement the record is denied. The General Counsel's and Union's motions to strike portions of the Respondent's brief pertammg to its motion are also denied. 2 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 Or 1951). We have carefully examined the record and find no basis for reversing the findings. In fn. 3 of the judge's decision, he misidentified G.C. Exh. 1(u) as 1(a). Also, in sec. I,C of his decision, the judge inadvertently referred to Sec. 10(c) whereas it is clear from context that he meant to refer to Sec. 8(c) Neither inadvertent error affects our decision. 3 We agree with the judge's conclusion that after the election the Re- spondent violated Sec. 8(a)(1) by threatening employees with reprisal if they cooperated with the Board or the Union in the investigation of the unfair labor practice charges and objections to conduct of the election We find it unnecessary to rely on his alternative rationale concerning dis- credited facts. 4 All dates refer to 1986 unless otherwise indicated. 5 Enfd. sub nom Hotel ti Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Qr 1985). NLRB 1217 (1985), we reaffirm the judge's fmd- ings concerning Phelps and Abbott but we reverse his fmding concerning Rice. In late December or early January, McHargue initiated approximately 25 private and individual interviews with day-shift employees in his office. Among those interviewed were Phelps, Abbott, and Rice. Long-time employee Phelps testified that she has never gone to McHargue's office on her own initiative and it was an unusual event to be summoned there individually. She said that McHar- gue asked her what the Union had done for her. She replied, "Nothing, except it was job security," explaining that with a union the Respondent could not fire her without just cause. McHargue replied that if he had wanted to get rid of her, he could have done so by claiming there were no openings when she had sought to return from her last sick leave. Abbott testified that McHargue, her immediate supervisor, summoned her to his office about the end of 1985. McHargue asked her if she had two children, explaining that the question was for insur- ance purposes. He then asked how she felt about the Union. She said she would be better off with the Union. He asked her why. Abbott replied that she had not had any problems with the Union and felt she would be better off with it. McHargue asked her how she was going to vote. Abbott re- plied, "I have not made up my mind yet." Shop Steward Rice testified that she had been in McHargue's office in the past to present grievances and that McHargue knew she supported the Union and opposed decertification. On direct examination, Rice stated that McHargue asked her why she thought she had to have a union. McHargue later asked her how she knew that the "Labor Board" would protect her job. She answered that she had gone to the "Labor Board" for "several different things" when employed by the Respondent's prede- cessor. According to Rice, McHargue then shrugged his shoulders and said he could get rid of just about anybody, that he did not have to keep anybody. Rice replied, "Well, I don't think that's the way it works." On cross-examination Rice testi- fied that McHargue question's concerning Board protection of her job referred to earlier conversa- tions. She testified, "Well, he rides me a lot," and there had been a couple of occasions where she said, "Hey, that's enough. I'll go the Labor Board, if I have to." Rice also testified on cross-examina- tion that McHargue told her she did not have to worry about her job, that there would be no major changes if the Union was voted out, that he could not make any promises about increasing insurance 284 NLRB No. 95 MORGAN SERVICES 863 or pay, and that whether or not the Union was going to stay was up to the employees in the plant. In Rossmore House and Sunnyvale the Board abandoned a per se test for evaluating employer- employee conversations in favor of "a case-by-case analysis which takes into account the circum- stances surrounding an alleged interrogation and does not ignore the reality of the workplace."6 This analysis includes practical consideration of whether, under all the circumstances, the interroga- tion reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. Among those circumstances which may be relevant in a particular case are the back- ground, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. Applying this analysis to McHargue's interviews with Phelps and Abbott, we note initially that nei- ther employee was an active union supporter at the time. The employees were summoned one by one from work to Production Manager McHargue's office, an unusual event creating an atmosphere of • unnatural formality. McHargue possessed the au- thority to hire, fire, and discipline. He, not the em- ployees, introduced the topic of union activity. McHargue's question to Phelps and Abbott sought specific information about their union sentiments that could provide the basis for retaliatory discrim- ination. McHargue communicated to them no le- gitimate purpose for asking these questions. Finally, McHargue's specific inquiry about how Abbott in- tended to vote, despite her truthful reply, preempt- ed her statutory right to the secrecy of her ballot. Under all these circumstances, we conclude that the interrogations of Phelps and Abbott had a rea- sonable tendency to interfere with, restrain, or coerce them in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. This conduct also constituted objectionable inter- ference with the election. By contrast, we find that McHargue's question- ing of Shop Steward Rice did not violate Section 8(a)(1) of the Act. Rice admitted to management her open union adherence and opposition to decer- tification. The general nature of the information sought, why Rice thought she had to have a union, was not particularly sensitive in this context. Fur- thermore, contrary to argument by the General Counsel in her cross-exceptions, McHargue's state- ment in the same conversation that he "could get rid of just about anybody with—you know, he didn't have to keep anybody," cannot reasonably be construed as a threat of reprisal for union activi- 6 Sunnyvale, supra at 1217 ty because there was no connection between his statement and any such activity. 7 McHargue's statement was made in response to Rice's apparent belief that the "Labor Board" would protect her job under any circumstances. We find, therefore, that the statement, when viewed in context, is more reasonably characterized as a reference to an employer's authority generally to discipline em- ployees. Additionally, McHargue specifically as- sured Rice in this same conversation that her job was not in jeopardy and that there would be no major changes if the Union was voted out. Under all these circumstances, we conclude that McHar- gue did not unlawfully interrogate or threaten Rice. 2. The judge also found that the Respondent vio- lated Section 8(a)(1) of the Act and engaged in ob- jectionable conduct by promising to implement a grievance procedure if employees voted to decerti- fy the Union. The judge credited the testimony of the decertification Petitioner Christana Farris, at the hearing, 8 finding that Plant Manager Ron Ren- zoni flatly promised night-shift employees that, if the Union were voted out, a "Fairness Group" grievance procedure similar to that existing at the Respondent's Cleveland laundry would be imple- mented in Indianapolis. The record is silent wheth- er Respondent's other laundries have this grievance procedure for nonunion employees. Farris testified that Renzoni referred to employee gossip that he would fire anyone he disliked if the Union was voted out. She avers he stated it would not be like that because there would be a board of people con- sisting of two employees and a supervisor which would vote on employee dismissals. The judge noted that sometime before this meet- ing and the election, Renzoni wrote a letter to all employees which McHargue posted on the compa- ny bulletin board. Renzoni's letter stated, inter alia, that Morgan has a "Fairness Group" grievance procedure for nonunion employees at its Cleveland laundry, that such procedure is illustrative of what occurs elsewhere, but that the law proscribed a 7 Member Johansen cannot agree with his colleagues' fmdmg that there was "no connection" between McHargue's statement that he could get rid of just about anybody and any umon activity McHargue made the statement in the course of satisfying his curiosity as to why Steward Rice thought the Labor Board could protect her job. Member Johansen nevertheless agrees with his colleagues' conclusion that McHargue's statement did not violate Sec. 8(a)(1) because, when viewed in the con- text of the entire conversation, the statement cannot reasonably be con- strued as a threat of retaliation for union activity. 8 The crucial portion of Farris' testimony concerning the Respondent's promise of benefit for voting against the Union is contained in her pre- trial affidavit, which counsel for the Charging Party read into the record and which Farris affirmed in substantial part on the stand. In light of Farris' reaffirmation of her affidavit on the stand, we find no merit in the Respondent's hearsay exceptions. 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD promise of this or any other benefit if the Union is decertified. The judge found that in talking to night-shift em- ployees concerning grievance handling and utiliza- tion of a "Fairness Group," Renzoni went beyond the careful statements in his posted letter and flatly promised that, if the Union were decertified, such a procedure would be implemented in Indianapolis as it had been in Cleveland. The judge concluded that Renzoni thereby violated Section 8(a)(1) and en- gaged in objectionable conduct by promising a ben- efit if the Union were voted out. We agree. Renzoni's statement to the effect that if the Union were decertified there would be a joint employer-employee board established to review dismissals constituted a promise of benefit in ex- change for votes against the Union. Renzoni's cred- ited statement impermissibly exceeded the language in his prior posted letter, which outlined what could be done without a union and disclaimed any promise of benefit. Contrary to our dissenting col- league, we fmd that Renzoni',8 statement to a signif- icant number of night-shift employees, notwith- standing prior disclaimers of a promise of benefit, went beyond mere assurance that employees would not lose benefits and promised a grievance machin- ery significantly different in kind from that existing under contract with the Union and which was not automatic or necessarily available to all the Re- spondent's nonunion employees at its Indianapolis laundry or elsewhere. In light of these facts, we find the cases on which our dissenting colleague relies clearly distinguishable 'from the instant case. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Morgan Services, Inc., Indianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. [Direction of Second Election omitted from pub- lication.] CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would reverse the judge's fmdings of coextensive preelection unfair labor practices and objectionable conduct and would certify the results of the election.' I agree with my colleagues' adoption of the judge's finding that the Respondent violated Sec, 8(a)(1) by a postelection threat of reprisal if employees cooperated in the Board investigation. I also agree that it is unnecessary to rely on the judge's alternative rationale. Finally, I agree that Production Manager McHargue did not violate the Act in his con- versation with Union Steward Rice 1. In viewing the credited evidence concerning "the alleged unlawful interrogations of employees Phelps and Abbott under the appropriate standards set forth in Rossmore House and Sunnyvale, I fmd that the private conversation between Production Manager McHargue and each of these employees was noncoercive speech protected by Section 8(c) of the Act. The Respondent had engaged in no unlawful conduct at the time of the election campaign, nor did it have any history of hostility towards or dis- crimination against union supporters. In mid-De- cember 1985, after the decertification petition had been filed, Plant Manager Renzoni distributed to employees copies of the Board document, "Your Government Conducts An Election," and read to employees specific passages relating to the protec- tion of employee rights. Additionally, 2 days before the election, the Respondent's president, Richard Senior, told a joint assembly of day- and night-shift employees, "I want you to feel secure in your job and to feel good about Morgan. If you need a union in order to do that, you should vote for the Union." The general assurances against adverse conse- quences of the election campaign dovetailed with the Respondent's efforts to contest the Union's campaign predictions of a loss of job security and benefits if it were decertified. As part of these ef- forts and in order to convey the Respondent's open, legitimate preference for a nonunion oper- ation, McHargue had individual conversations with several employees, including Phelps and Abbott. Although such interviews with McHargue in his office were an unusual event, this office was locat- ed directly off and had picture windows open to the production area. In addition, Phelps admitted that McHargue frequently spoke to employees as a group in the lunchroom about "a lot of things," in- cluding the Union's campaign., The conversations with Phelps and Abbott were brief, innocuous, and nonrecurring. They did not contain any express threat, of reprisal or force or promise of benefit. McHargue's inquiries were lim- ited. He asked Phelps one rhetorical question, "What has the Union done for you?" He asked Abbott how she felt about the Union, and how she was going to vote. There was no apparent pressure for responses to the questions. In each instance the questions resulted in immediate, truthful, and candid responses. As Abbott testified, "He just asked my opinion on what I was going to do. I just told him I hadn't made up my mind yet." An elici- tation of an employee's views on unionization and voting sentiments is not violative of the Act when unaccompanied by a threat of reprisal, promise of MORGAN SERVICES 865 benefit, or other coercive circumstances. A & E Stores, 272 NLRB 737 (1984). Under all the cir- cumstances, McHargue's brief questioning of Phelps and Abbott, unaccompanied by any threats, promises of benefits, or other coercive circum- stances, did not violate the Act or interfere with the election. 2. I also disagree with my colleagues that the Respondent unlawfully promised employees the benefit of a different or improved grievance proce- dure if they voted to decertify the Union. In my view, Renzoni's alleged statement could not be construed as a promise in the overall context of other employer statements and contemporaneous disclaimers of promises of benefits, but, if Renzoni did promise anything, it was to maintain an existing benefit, not provide a new one. According to decertification Petitioner Christana Farris, Renzoni addressed night-shift employees a day before the election about the subject of em- ployee benefits in the event of decertification. Ren- zoni told the night shift they would not lose benefit coverage if the Union was voted out and he could not promise any raises. He sought to allay employ- ee concern about arbitrary discharge if decertifica- tion occurred by stating that there would be a joint board established to vote on dismissals after two writeups. At the time, the Respondent and the Union had a four-step contractual grievance and arbitration procedure for unit employees. Contemporaneous with this speech, Renzoni had posted a letter to all employees on the company bulletin board. The letter addressed job security concerns in the context of union campaign propa- ganda engendering fear of job loss upon decertifi- cation. The letter assured employees that no such job loss would occur. It noted that nonunion com- panies have effective and fair grievance procedures and described the Respondent's "Fairness Group" grievance procedure at its Cleveland facility. It then explicitly disclaimed promising this or any other benefit if the Union was decertified, noting that the Cleveland procedure merely illustrated what had been done elsewhere. The letter closed with the statement that "No one will lose any ben- efits or suffer any loss of job, wages or benefits be- cause of the election." In addition, Renzoni's uncontroverted testimony is that the Respondent's president, Senior, ad- dressed the issue of grievance procedures and the "Fairness Group" alternative in a joint meeting of day- and night-shift employees held a day before Renzoni's speech to the night shift. Senior told the employees that he could not guarantee implementa- tion of the "Fairness Group" procedure there. Renzoni's statement to night-shift employees, when properly evaluated in light of his letter, Sen- ior's remarks, and Renzoni's specific disclaimer of a promise of raises could not reasonably be construed as a promise to implement the "Fairness Group" procedure in the event of decertification. Renzoni was participating in the Respondent's efforts to re- spond to the Union's contentions and employee concerns regarding job benefit losses if the Union were decertified. In the process, he legitimately made comparison with existing benefits for non- union employees elsewhere. 2 The single isolated failure to repeat specific disclaimers when discuss- ing the "Fairness Group" procedure should not be removed from the overall context in order to justi- fy finding an absolute promise. Even assuming that Renzoni's statement could properly be found to be a promise, however, I would still find no violation. An employer in a de- certification election situation has the right to assure employees that they will continue to receive benefits comparable to those enjoyed under a col- lective-bargaining agreement. El Cid, Inc., 222 NLRB 1315, 1316 (1976). The General Counsel has failed to prove here that Renzoni's alleged promise of a "Fairness Group" grievance procedure consti- tuted an offer of a new or increased benefit, rather than a promise to maintain the equivalent of the ex- isting contractual grievance and arbitration proce- dure. Consequently, I would dismiss this complaint allegation and overrule the parallel objection. 2 See, e g., Duo-Fast Corp., 278 NLRB 52 (1986); Viacom Cablevision, 267 NLRB 1141 (1983). Steve Robles, Esq., for the General Counsel. Thomas Canafax Jr., Esq., of Chicago, Illinois, for the Respondent. Neil E. Gath, Esq., of Indianapolis, Indiana, for the Charging Party. DECISION STATEMENT OF THE CASE FINDINGS OF FACT WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Indianapolis, Indiana, on a consolidated unfair labor practice com- plaint,' issued by the Regional Director for Region 25, 1 The principal docket entries in this case are as follows: Charge in Case 25-CA-17770, filed against the Respondent by Local Union No. 2017, Laundry and Dry Cleaning International Union, AFL- CIO (Union), on January 23, 1986, charge in Case 25-CA-17770-2 filed against the Respondent by the Umon on January 27, 1986; consolidated complaint issued against the Respondent by the Regional Director for Region 25 on March 7, 1986, Respondent's answer filed March 18, 1986; hearing held in Inchanapohs, Indiana, on April 21 and 22, 1986, briefs Continued 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and later amended, which alleges that Respondent, Morgan Services, Inc.,2 violated Section 8(a)(1) of the Act. More particularly, the consolidated complaint, as amended, alleges that the Respondent coercively interro- gated employees in a systematic fashion concerning their union sympathies and that it threatened employees with reprisal for their union activities and for cooperating with the Board in the investigation of unfair labor prac- tice charges and objections by the Charging Union. The interrogations also constitute objectionable conduct that the Charging Union alleges to be the basis for setting aside an election held on January 10, 1986, and directing the running of a second election. The Respondent denies the commission of any unfair labor practices or objec- tionable conduct. On these contentions the issues were joined.3 I. THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE CONDUCT ALLEGED Respondent is a Chicago-based concern that operates laundries in Buffalo, Cleveland, Indianapolis, and else- where. For several years it operated its Indianapolis laundry at 938 East Georgia. During that period of time, it was part of a multiemployer association, the Indianap- olis Cleaners & Launderers Club. Its employees were covered by a collective-bargaining agreement between that Association and the Charging Union that expired on January 25, 1986. American Linen Supply Co. operated a laundry at 201 East Lincoln. It was a member of the same association and its employees were covered by the same multiemployer agreement. In the fall of 1984, Respondent purchased the assets of American Linen Supply Co. at the East Lincoln Street address. On November 1, 1984, American Linen Supply Co. ceased its operations and Respondent began moving its George Street operation, including all its employees, into the former American Linen plant. It now operates in Indianapolis exclusively from that plant and has a bar- filed with me by the General Counsel and the Respondent on or before June 6, 1986. The principal docket entries in the consolidated representation case are as follows. Petition filed by Chnstana Farris, an individual, on November 21, 1985, seeking a decertification election in a unit composed of all the Re- spondent's production, mamtenance, custodial, and stockroom employees employed at its Indianapolis, Indiana laundry, with the usual exclusions; representation election held on January 10, 1986, resulting in a vote by 19 employees to decertify the Union and 11 to retain it as a bargaining rep- resentative; objections to the conduct of the election filed by the Union on January 17, 1986; Regional Director's report, recommendations to the Board, and order consolidating cases issued on March 20, 1986, recom- mending a hearing on two of the four objections and overruling two of them; exceptions to report filed by the Respondent with the Board on April 2, 1986; Board's Decision and Order, dated April 16, 1986, overrul- ing exceptions and directing a hearing. 2 Respondent admits, and I find, that it is a Delaware corporation that maintains its headquarters in Chicago, Illinois, and a place of business in Indianapolis, Indiana, where it is engaged in the operation of a commer- cial laundry. During the preceding 12 months, the Respondent, in the course and conduct of its busmess, has purchased and received at its Indi- anapolis, Indiana facility directly from points and places located outside the State of Indiana goods and materials valued in excess of $50,000 Ac- cordingly, the Respondent is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act The transcript corrections are noted and corrected. gaining unit that is an amalgamation of its George Street employees and former American Linen employees whom it hired.4 Before merging its operation, Respondent en- tered into a letter agreement with the Charging Union in which it agreed to hire American Linen employees at their current 1984 wages but declined to offer them any seniority which, for most purposes, would antedate their date of hire as Respondent's employees. In the fall of 1985, the Respondent's Buffalo plant un- derwent a decertification election. The Buffalo decertifi- cation effort failed and the employees at that plant voted on November 8 to retain a Laundry Workers affiliate as their bargaining agent. Following that election, the Re- spondent put out a statement in the Morgan Review, a quarterly house organ, in which its president, Richard Senior, congratulated the 33 Buffalo employees who voted for decertification and expressed the hope that the day would come when a majority in Buffalo would see things the same way. The newsletter went well beyond merely trumpeting the virtues of a nonunion laundry. It gave specific details about how a decertification petition might be circulated and filed and informed the reader about the 60- to 90-day period during which a petition might be submitted to the Board. A copy of this newslet- ter was handed out to all the Respondent's Indianapolis employees. Shortly thereafter, Christana Farris, a night-shift em- ployee at the Indianapolis laundry, circulated a showing- of-interest petition at the plant and, on obtaining the sig- natures of 30 percent of the members of that bargaining unit, filed a decertification petition on November 21. An election was held on January 10, 1986, between the hours of 2:45 and 4 p.m. In mid-December, Ron Renzoni, the Indianapolis plant manager, obtained a set of information pamphlets pub- lished by the Board and distributed them at a meeting of laundry employees in mid-December. He also read to employees certain passages in the Board pamphlet relat- ing to the protection of employee rights. On December 18, the Union sent to each member of the bargaining unit a letter in which it called their atten- tion to the fact that the contract was about to expire. It solicited suggestions for contract proposals and included a form that employees might use to make known to the Union their principal concerns. In the letter, the Union criticized the Company for bragging that employees would be better off without a union rather than devoting its energies to good-faith bargaining. The letter extolled the practice of having wages and benefits incorporated into legally enforceable contracts and stated: For the record, the Union doesn't believe that the Company has changed into Santa Clause. If you think they have, just ask them to put it in writing in a new Union contract that will guarantee your rights. The Union does not believe that the Compa- ny has a better deal to offer you in the absence of the Union. Without the Union, the only deal you 4 In addition to laundry workers, the Respondent employs a group of truckdrivers, whom it calls service representatives. Service representa- tives are represented by a Teamsters local in a separate bargaining unit. MORGAN SERVICES 8-67 will get is a raw deal—lower wages, poorer health insurance and no pension plan. Beginning in late December or early January, Arthur McHargue, the production manager, held a series of pri- vate interviews with about 25 of the day-shift employees. These one-on-one talks took place in McHargue's office, a small glass-enclosed area located on the first floor of the building near the production area. McHargue admits telling each of the employees during the course of these interviews that he felt the Union had done little or noth- ing for them and they would be better off without it. In a few instances, he spoke about his own membership in another union several years before and based his state- ments, at least in part, on his own experience. McHargue denies asking employees any questions about their union activities. However, McHargue was an evasive witness who gave contradictory testimony and made a number of patently unbelievable statements. I discredit his testi- mony in this regard. I credit the testimony of Mary L. Phelps, a longtime employee of the Respondent, who stated that, in the course of an interview with McHargue, McHargue spoke to her about insurance, telling her the Company's health insurance program was better than the one offered by the Union. He told her it had paid all of the medical ex- penses associated with his heart attack. He went on to ask Phelps what the Union had done for her. She re- plied, "Nothing, except it was security." She explained her answer by stating the Respondent could not fire her under the union contract without just cause. McHargue's reply was, "I don't know where you get that. If I wanted to get rid of you, I could have done that. I could simply have said there were no openings," referring to the time when Phelps came back to work after an ex- tended illness. An interview took place shortly before the election be- tween McHargue and Sharon Rice, the former shop steward in the old American Linen unit. McHargue asked her why she thought she had to have a union. She replied that she had worked for other employers, some with unions and some without unions, and that one em- ployer had closed up and pulled out when a union start- ed to come in. He then asked her if there was something that he needed to tell her and she replied the only thing she needed to talk about was health insurance. Rice was expecting to go into the hospital soon and she asked whether the Union would continue to pick up the costs if it was voted out or whether the Company would pro- vide health benefits without any waiting period. McHar- gue said that he was covered by the Company's policy and it was better. However, he was unable to answer her specific question and said he would get the information and give it to her. McHargue went on to ask her how she knew the Labor Board would protect her. She told him she had gone to the Labor Board when she was employed by American Linen. McHargue then went on to say he could get rid of anyone he wanted and he did not have to keep anyone. Her reply was, "I don't think it works that way." In his interview with Jackie Ann Abbott, McHargue began by asking her if she had two children. Abbott re- plied that she did, but they were living with her mother. McHargue justified the question by saying he was asking it for insurance purposes. He went on to ask her how she felt about the Union. She replied she felt she was better off with a union. McHargue then asked her why_ She told him that, in her opinion, there were no problems. She stated she had not filed any grievances but felt she was better off with the Union. McHargue then asked her how she was going to vote. She replied she had not yet made up her mind. During the course of this conversa- tion, McHargue was making notes on a yellow pad. As noted previously, the election took place on Friday, January 10. On Wednesday afternoon, January 8, Company President Senior addressed a joint assembly of day- and night-shift employees which took place about 2 p.m. In the course of his talk, he outlined the percent- ages of gross revenue that resulted in wages, utility pay- ments, and profits and told the employees about the Morgan philosophy that wished employees to feel secure in their jobs and to feel good about the Company. He said employees who felt as he did should vote the union out. If they did, he would not let them down. After the speech, Renzoni asked employees if there were any ques- tions. Nothing in this speech nor any subsequent ques- tions has been challenged as either unlawful or objection- able. On the following day, Renzoni spoke to day-shift em- ployees in a gathering that took place in the cafeteria at 2 p.m. His speech lasted 15 or 20 minutes. Nothing stated in this speech has been challenged as either unlawful or objectionable. Renzoni also wrote an open letter "To All the People at Morgan," which was placed on the compa- ny bulletin board. 5 Among the matters discussed in the letter is a grievance procedure which the Respondent had instituted at its Cleveland laundry. The letter states, in part: Some people believe that without a union, there would be no grievance procedure to appeal deci- sions of supervisors. That simply is not true. Many non-union companies have effective and fair grievance procedures. Morgan itself has a grievance procedure that is used by some of its non-union employees. In Cleveland there is a "Fairness Group" for non- union employees. Under this procedure, the em- ployee picks one half of the Review Board which hears his or her grievance. Instead of arbitration, which could take 6, 8, or 12 months to complete, the final decision under the Fairness Group is made by either the General Manager or the President of the Company, at the employee's choice. This proce- dure works. It is quicker than arbitration and the company can deal more directly with the problems of employees because it is not a party to a legal action, as in arbitration. 5 McHargue testified he could not remember if he posted RenzonPs letter before or after the election. The text of the letter begins "In the upcoming election . . " I conclude it was posted before the election. 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The law prohibits me from promising this or any other benefits if the union is decertified. However, it illustrates what has been done elsewhere and that unions are not the best answer when it comes to job security. Senior made reference to this procedure in his talk to employees and so did Renzoni. Christana Farris, the proponent of the decertification petition, testified credibly 6 about a meeting which Ren- zoni held at 3 p.m. with night shift employees. In the course of this meeting, he attempted to persuade them to vote against the Union in the decertification election. Renzoni told night-shift employees on this occasion that employees would still be covered with health insurance and benefits if the Union was voted out. He did not make any kind of comparisons between the union's health and pension plans and what employees would be getting if they voted against the Union. He said employ- ees would not lose their vacations and would still have personal days if they need them. However, he stated he could not promise anything concerning raises. He men- tioned talk that was going around that he would fire em- ployees if he did not like them if the Union was not there to protect them. He stated this was not so because there would be a board of people set up composed of two employees and a supervisor and this board would vote on whether the employee would be dismissed. He stated further that an employee would have to have two writeups before a vote by the board would take place. In her affidavit, Farris also stated that the above-recit- ed talk took place beginning at 3 p.m. on January 9 and thus less than 24 hours before the beginning of the elec- tion on January 10. On the stand, she said she could not remember whether the talk was given on that date. Re- spondent's witnesses denied such a talk took place on January 9, although Renzoni admitted talking exclusively to a group of night-shift employees on January 2. No witnesses were produced by the General Counsel for the Charging Party to corroborate the portion of the affida- vit relative to the timing of Renzoni's talk. Accordingly, I conclude the talk took place before the election, as re- cited by Farris, but there is insufficient evidence to find that it took place on January 9. The employees supported decertification by a vote of 19 to 11. Following the election, timely objections were filed. Two of those objections were referred to hearing in conjunction with unfair labor practice charges which were filed a few days later. McHargue learned by phone 6 The Respondent objected to the fact some of Farris' testimony is found in a pretrial affidavit that, m substantial part, she affirmed when she took the stand. Respondent claims the contents of the affidavit are not probative because they are hearsay. From a party to the proceeding, an out-of-court affidavit that contains adnnsmons against interest is pri- mary evidence and an exception to the hearsay rule. The affidavit was affirmed by Farris in all but one portion when she testified, so the Re- spondent was at liberty to cross-examine her, either on the original affida- vit or the contents thereof as affirmed Accordingly, it is not hearsay. It should be remembered that Fams was called by the union attorney, and the procedure utilized by him was appropnate in examining an adverse witness Because Farris was the proponent of the decertification petition, any statements made by her that might be adverse to the validity of the election carry a ring of credibility, and this fact influenced the credibility determination of the filing of the objections to the election. Shortly thereafter, he spoke to a gathering of day-shift employ- ees in the cafeteria. He informed them of the filing of ob- jections, and he may have mentioned the charges as well. I credit corroborated testimony that McHargue went on to say that, if the Board or the Union approached em- ployees in connection with these items, they did not have to talk to them and, if they did, it would be used against them and their jobs. 7 McHargue's statement had the reverse effect on two or three employees, who went directly to the Board office after work that day to give affidavits. C. Analysis and Conclusions I find the interrogations of Phelps, Rice, and Abbott by McHargue were coercive and conclude they were unfair labor practices and objectionable conduct that af- fected the result of the decertification election on Janu- ary 10. These interrogations took place in the locus of highest managerial authority, as far as the day-to-day op- erations of the Company are concerned. It is idle for the Respondent to suggest otherwise simply because any em- ployee could go to Renzoni if she did not like what McHargue said or did. As a normal operating routine, McHargue did the hiring and firing and the disciplining of employees. Indeed, he even suggested that higher management had an obligation to clear with him before calling employees off the floor for any purpose. At least some of the employees questioned in McHargue's office had rarely gone in there in the course of their duties, and none had gone in there for the purpose of being ques- tioned about their union sympathies. The questions posed to these employees by McHargue concerning their union activities and sentiments were not innocuous or casual. They were part of a systematic campaign by McHargue to produce a "No" vote at the January 10 election. The questions were posed in the course of private one-on-one conversations that were designed to intimidate. Concern- ing at least two of the three subjects of this intimidation, there is no basis for concluding that they were known union adherents, and there is no basis for arguing, as the Respondent does, that the Act or recent constructions thereof by the Board authorize the intimidation of known union adherents. This kind of probing into union sentiments, into the reasons for those sentiments, and into how employees intend to vote is a violation of the Act. Moreover, there is no basis for arguing that Section 10(c) of the Act applies to objectionable conduct, whatever effect it may have in the aret of unfair labor practices. Fiber Industries, 267 NLRB 840 (1983). By coercively in- terrogating employees in the manner found above, the Respondent violated Section 8(a)(1) of the Act and en- gaged in objectionable conduct that affected the outcome of the' January 10 election. The statements made by Renzoni to night-shift em- ployees, as recounted by Farris, did not take place within the period of time covered by the Peerless Plywood rules 7 McHargue's version of his statement, which I discredit, is that em- ployee statements to the Board could be used as evidence against them or the Company 8 107 NLRB 424 (1953). MORGAN SERVICES 869 and are not objectionable on that account. However, in his talk with night-shift employees, Renzoni went beyond what he said in the letter that was posted on the bulletin board. In the posted letter, Renzoni hedged in discussing the Fairness Group and the manner in which grievances were handled at the Respondent's Cleveland laundry. The procedure outlined in the letter was couched in language of what could be done relative to grievance handling if the union were voted out. Renzoni also stated in his letter that he could make no promises concerning grievance handling or other matters. In talking to night-shift employees concerning griev- ance handling and the utilization of a Fairness Group, Renzoni was not so careful. He flatly promised them that if the union were voted out such a procedure would be implemented in Indianapolis, as it had been in Cleveland. Such a promise of benefit for voting against a union vio- lates Section 8(a)(1) of the Act and is objectionable con- duct which affects the result of an election. Whiting Mfg. Co., 258 NLRB 429 (1981); NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). It was properly referred to the Board and me by the Regional Director as part of the catchall provision in Objection 4, and it was fully litigat- ed in the proceeding which took place on April 22 and 23. American Safety Equipment Corp., 234 NLRB 501 (1978); Knight Electrical Displays, 234 NLRB 975 (1978). After the election took place and objections and charges were filed, McHargue attempted to preserve the fruits of his illegal activity by a further illegal act. He warned the day shift that if they attempted to cooperate with the Board or the Union in the forthcoming investi- gation it would go against them and their jobs. Even his discredited version of the statement he made carries a menacing overtone. He admits giving employees the equivalent of a Miranda warning, telling them that any evidence provided the Board in the performance of its statutory duty could be held against either the employees themselves or the Company. This admitted statement, on its face, is an interference with protected rights because it is an attempt to discourage free access to the Board. Having been uttered after the election, McHargue's state- ment is not a basis for setting aside the election, but it is a violation of Section 8(a)(1) of the Act. I so find and conclude. On the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the follow- ing CONCLUSIONS OF LAW 1.Respondent, Morgan Services, Inc. is now and at all times material herein has been engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. 2. Local 3017, Laundry and Dry Cleaning Internation- al Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union activities and sympathies, by promising to im- plement a grievance procedure if they voted to decertify the Union, and by threatening employees with reprisal if they should cooperate with the Board in the investiga- tion of unfair labor practice charges and objections to the conduct of an election, the Respondent violated Sec- tion 8(a)(1) of the Act. 4. The first two referenced actions of the Respondent in Conclusion of Law 3 constitute objectionable conduct affecting the results of a decertification election which was conducted among certain of the Respondent's Indi- anapolis, Indiana employees on January 10, 1986. 5. The aforesaid unfair labor practices and objection- able conduct have a close, intimate, and adverse effect on the free flow of commerce within the meaning of Sections 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices and objectionable conduct af- fecting the outcome of an election, I will recommend that it be required to cease and desist therefrom and to take other affirmative actions designed to effectuate the purposes and policies of the Act. I will also recommend that the Respondent be required to post the usual notice, advising its employees of their rights and of the results in this case.9 On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Morgan Services, Inc., Indianapolis, Indiana, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union sympathies and activities. (b) Promising to implement a grievance procedure or any other benefit if employees vote to decertify the Union. (c) Threatening employees with reprisal if they coop- erate with the Board in the investigation of unfair labor practice charges or objections to the conduct of an elec- tion. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at the Respondent's place of business in Indi- anapolis, Indiana, copies of the attached notice marked "Appendix." 11 Copies of said notice, on forms provided 9 The General Counsel filed a standard brief requesting that the recom- mended Order include a visitatonal clause permitting the Board to engage in discovery in order to monitor compliance with the Order. No necessity for such an order has been demonstrated in the record in this case or in the General Counsel's brief as it concerns the facts and circum- stances of this case Accordingly, I decline to recommend such a remedy. 10 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findmgs, conclusions, and recommended Order shall, as provided m Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. " 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- Continued 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by the Regional Director for Region 25, after being signed by Respondent's authorized respesentative, shall be posted immediately on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that Case 25-RD-924 be severed from Cases 25-CA-l7770 and 25-CA--17770- 2; that the objection to the conduct of the election relat- ing to a Peerless Plywood violation be overruled and the remainder of the objections referred be sustained; that the election conduct be set aside; and that Case 25-RD- 924 be remanded to the Regional Director for Region 25 for the purpose of conducting another election at such time as he deems the circumstances will permit the free choice of a bargaining agent. 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." 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. WE WILL NOT coercively interrogate employees con- cerning their union sympathies and activities. WE WILL NOT promise to implement a grievance pro- cedure or any other benefit in exchange for a vote to de- certify the union. WE WILL NOT threaten employees with reprisal if they cooperate with the Board in the investigation of unfair labor practice charges or objections to the conduct of an election. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by the Act. MORGAN SERVICES, INC.