Indiana Cal-Pro, Inc.

796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Indiana Cal-Pro , Inc. and Laborers' Local Union No. 741 , a/w Laborers International Union of North America AFL-CIO. Case 25-CA-18182 16 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 3 April 1987 Administrative Law Judge Mary Ellen R. Bittner 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, 2 as modified, 3 and to adopt the rec- ommended Order as modified below. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Indiana Cal-Pro, Inc., Ellettsville, Indi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(a). "(a) Interrogating employees about whether they desire union representation and whether they would sign a petition disavowing support for the Union; threatening to close the facility if the Union I The Respondent asserts that the judge's credibility resolutions are the result of bias After a careful examination of the entire record, we are satisfied that the allegation is without merit Further, it is the Board's es- tablished policy is not to overrule an administrative law judge's credibil- ity 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 In light of our affirmance of the judge's finding that the majority of the Respondent's employees executed valid authorization cards on behalf of the Union, we disavow as irrelevant the judge's observation, at fn 23 of her decision , that the Respondent's unfair labor practices herein are not so outrageous and pervasive that they would justify a Gissel bargaining order "irrespective of a union's majority status " 2 In adopting the judge 's finding that the Respondent engaged in un- lawful employee interrogation, we do not rely on the incident involving Superintendent Summit's questioning employee Kemp concerning wheth- er Kemp was "at liberty" to say anything about the union meeting, which the General Counsel neither alleged nor litigated as a-violation We further find it unnecessary to rely on the judge's finding that Fore- man Christy unlawfully questioned employees about "what their feeling was" concerning union activity These additional findings of interroga- tion would merely be cumulative and would not affect the remedy 3 We shall accordingly delete from the recommended Order and notice the specific descriptions of interrogation which we have declined to adopt became the employees' representative; participating in the preparation and dissemination of a petition disavowing the Union; and soliciting employees to sign that petition and to prepare another." 2. Substitute the attached notice for that of the administrative law judge. , APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT ask you whether you desire union representation or whether you will sign a petition disavowing support for the Union. WE WILL .NOT threaten to close our Ellettsville, Indiana facility if the Union becomes your collec-, tive-bargaining representative. WE WILL NOT participate in the preparation or dissemination of petitions disavowing the Union, and WE WILL NOT ask you to sign or prepare such petitions. WE WILL NOT refuse to recognize or bargain with Laborers' Local Union No. 741, a/w Labor- ers International Union of North America, AFL- CIO, as the exclusive representative of our employ- ees in the following appropriate bargaining unit: All production and maintenance employees at our Ellettsville, Indiana facility, excluding office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights' guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with Laborers' Local Union No. 741, a/w Labor- ers International Union of North America, AFL- CIO, about the rates of pay, wages, hours, and other terms and conditions of employment of the employees in the appropriate unit described above. INDIANA CAL-PRO, INC. Steve Robles, Esq., for the General Counsel. Charles Hampton White, Esq. (Cornelius & Collins), of Nashville, Tennessee, for the Respondent. 287 NLRB No. 81 INDIANA CAL-PRO 797 DECISION STATEMENT OF THE CASE MARY ELLEN R., BITTNER, Administrative Law Judge. The original charge, in this proceeding was filed on 13 August 1986, by Laborers' Local Union No. 741, a/w Laborers' International Union of North America, AFL- CIO (the Union) against Indiana Cal-Pro, Inc. (the Re- spondent). On 9 October 1986 the complaint issued, al- leging, in substance, that the Union, as of 17 June 1986, represented a majority of the Respondent's employees in an appropriate bargaining unit; that the Respondent had engaged in numerous acts that interfered' with, re- strained, and ' coerced 'its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, and had thereby violated Section 8(a)(1) of the'Act, and that the Respondent's conduct precluded the holding of a fair election among the em- ployees to determine whether they desire union represen- tation. The complaint further alleged that the Respond- ent's unfair labor practices warranted an order requiring it to recognize and bargain with the Union as of July .1986. The Respondent has denied the commission of any unfair labor practices., - - A hearing was held before me on 12 and 13 January 1987 in Bloomington, Indiana. Following the hearing, the General Counsel and the Respondent filed briefs, which have been considered.' On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing , FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Tennessee corporation with its principal office and place of business in Nashville, Ten- nessee, and a facility in Ellettsville, Indiana, where it is engaged in the mining and processing of high-calcium limestone. During the 12-month period preceding the is- suance of the complaint, a representative period, the Re- spondent, in the course and conduct of its business oper- ations, sold and shipped from the, Ellettsville facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Indiana. The answer admits and I find that the Respondent is an employer engaged in commerce within the meaning of the Act, and I further find that it will effectuate the pur- poses of the Act to assert jurisdiction here Ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. ' The General Counsel's unopposed motion to correct the record is granted III THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The Respondent's operation and prior relationship with the Union The Respondent is headquartered in Nashville, Ten- nessee, and maintains a facility in Ellettsville, Indiana, where it mines limestone and crushes it into a fine powder for use by glass manufacturers. As of 10 July 19862 there were 14 production and maintenance em- ployees3 at the Ellettsville operation, plus at least 3 non- unit personnel: the plant's superintendent, Steven Summit; the mine foreman, Lester Christy; and the office manager, Jim Morris.4 The Ellettsville operation began in 1978 and, accord- ing to the General Counsel's opening statement at the hearing, which was not contradicted on this point, from that time until 1984 the Union and a local of the Operat- ing Engineers International Union were recognized as point representatives of the production and maintenance employees. The Respondent filed a petition for a Board- conducted election in 1984; at that time the two unions disclaimed any interest in continuing to represent the em- ployees, and the employees remained unrepresented until the events at issue in this case. Following the decertification of the point representa- tives, the Respondent met in early April 1985, with an employee relations committee composed of employees John Siniard and Don Anderson. An apparent result of this meeting was a memorandum distributed to the em- ployees on 25 April 1985 stating various terms and con- ditions of employment; one of these was a provision that wages would be reviewed annually in December It is undisputed that this document- was the only written statement of schedules, vacation pay, and so on that was distributed to the employees after the decertification It is also undisputed that during the summer of 1986 the Respondent was suffering from a decline in business, although the extent of that decline is not indicated in the record., 2. The 1986 organizing campaign Employee John Siniard credibly testified that on 15 June he went to the union hall to obtain blank authoriza- tion cards, which he then passed out to the other em- ployees. Nine of the employees signed cards, which were returned to Siniard by 20 June. On 8 July the Union filed a petition in Case 24-RC- 8360 seeking a Board-conducted election in a unit of pro- duction and maintenance employees, and also wrote to the Respondent, demanding recognition. The parties stip- ulated that the Respondent received the letter 2 or 3 days later, i.e., by 11 July, and also stipulated that, as 'of 2 All dates here are 1986 unless otherwise indicated s The parties stipulated at the hearing that a unit of production and maintenance employees is appropriate for purposes of collective bargain- ing 4 There are also some references in the record to a Richard Neil, who worked in the office It is clear that he was not in the bargaining unit 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the date of the hearing, the Respondent had refused to recognize the Union. There is some dispute as to when the Respondent learned about the union activity. Mine Foreman Christy testified that employee Don Thompson, with whom Christy rode to work, had told him that the men had been "talking union"; this was apparently the first con- versation Christy had with any employee about the orga- nizing campaign . Christy further testified that he did not report this or other conversations he had with employees about the Union to Plant Superintendent Summit and that as far as he knew Summit became aware of the or- ganizing campaign when the Union wrote to the Re- spondent demanding recognition. Summit testified, how- ever, that he first* became aware of the organizing 'cam- paign when employee Gary Parker' asked him about a union card, apparently about 2 weeks before the Union formally requested recognition. B The Events During the Union Campaign 1. The alleged misrepresentation as to the purpose of the cards The Respondent contends that the employees were not advised that signing authorization cards would indicate their desire for union representation, but, instead, were told only that signing cards would enable a union repre- sentative to talk to them. In support of this assertion, Christy testified that .around the first of July some em- ployees told him that Simard had approached them to sign something that would entitle them to talk to a union representative. Similarly, Summit testified that, shortly before the Union filed its representation petition, he had a conversation with employee Roger Kemp, who said, among other things, that he had been misled about the purpose of the 'authorization cards. However, the only employee to testify in support of the Respondent's con- tention was Kemp, who stated that he signed an authori- zation card on 17 June "with the impression that the Union was to come out and talk to us," and that he read the card, but "not thoroughly." Neither Christy, Summit , nor Kemp impressed me as particularly credible witnesses. Siniard , however, who seemed to be candid and. to generally exhibit good recall, credibly denied telling , any employees that the card would. enable a • union representative to talk to them. Indeed, Siniard credibly testified that all he told the em- ployees was that the card was "to bring the Union back," and that none of the employees asked him the purpose of the cards. Most of the employees who testi- fied corroborated Siniard, and stated that there was no misrepresentation about the purpose of the authorization cards. Thus, Garry Shrum testified that Siniard asked him if he would be interested in bringing the Union back, and that when he replied in the affirmative, Siniard asked him if he would sign a card, to which Shrum re- plied that he would. Shrum signed a card on 17 June and left it in Siniard's vehicle Similarly, Warren Walls testi- fied that Siniard gave him a card and said that signing it meant that he wanted union representation. Walls signed the card and returned it to Siniard. Also corroborating Siniard, employee Hershel Sparks testified that he was off work between 8 June and 6 August with a broken arm, and that he signed a union card on 17 June at Sin- lard's home. According to Sparks, Siniard told him that the men wanted to bring the Union back and asked him how he felt about it, and Sparks replied that he would "like to see it." Shrum, Walls, and Sparks, as well as Siniard, appeared to be forthright. I therefore credit all four witnesses and find that Siniard did not misrepresent the purpose of the authorization cards when he solicited employees to sign them. I therefore further find that, as of 20 June, 9 of the 14 unit employees, a clear majority, had expressed a desire for union representation.5 r2., The alleged threats and interrogations a. The supposed June wage increase and Christy's comments about lack of work As noted above, the Respondent conducted a wage review each December and,had notified the employees of this practice in the memo posted in April 1985. None- theless, Kemp testified that, at some point during the summer of 1986, Siniard told him that the employees were supposed to have received a raise a month or two earlier and that the Respondent was not meeting its obli- gation ,to the employees. Both Kemp and Summit testified that .Kemp later asked Summit, about the-raise. According to Summit, he told Kemp that the latter should know better because wage reviews were in December, and Kemp said that Siniard had told him that the employees were supposed to have received a raise in June. In that same conversa- tion, still according to Summit , Kemp told him that the employees had been asked to sign union authorization cards, and that he thought they had made a mistake be- cause he had been misled about the purpose of,the cards. Christy also testified about the rumors of a June raise. According to him, after the Respondent received the Union's representation petition he had a conversation with Kemp and employee Gary Hoff about whether the employees were supposed to have received a raise in June. Christy testified that he told the employees that he had not heard anything about it , and that they then asked why Siniard would have lied to them about the matter Christy further testified that Hoff also said that Simard had told him a different story than he had told Kemp and had said that the Respondent was ,breaking its agreement with the employees Christy further testified that in either that conversation or another Hoff and Kemp asked him if the employees would be making a mistake in seeking representation by the Union, and that he replied that, "knowing because of the slump in our sales, we were down to a 4-day week, I couldn't really see any point, and I couldn't 'see what 5 1 include Kemp as one of the nine signers I do not credit his testimo- ny that Siniard misrepresented the purpose of the card and, in any event, Kemp read the card, which unambiguously designates the Union as the ,signer's collective -bargaining representative, and Kemp testified that it was his "impression" that the Union was to talk to the employees, not that Siniard told him that that was the only purpose of the card Kemp's card is, therefore, valid Colonial Lincoln Mercury Sales, 197 NLRB 54, 66 (1972) INDIANA CAL-PRO 799 their motive was for needing a Union as a bargaining agent " Christy initially testified that he did not tell the employees that they were going to be out of work, but then conceded that the possibility of no work "may have been mentioned." That concession was consistent with the affidavit Christy had previously provided to a Board agent, in which he stated that, "Hoff and Kemp asked me what I thought would happen if the Union got back in. I told them that given the slump we were in and the drop in sales, it could mean that there's no work."s Hoff did not testify, and although Kemp testified that he talked to both Christy and Summit about the Union a day or two after he signed his authorization card, he did not detail the conversation with Christy. I find that Christy did talk to Hoff and Kemp about the Union and, in response to their question about what would happen if the Union represented them, told them that with the slump in the Respondent's business there might be no work. The General Counsel argues that this comment violat- ed Section 8(a)(1) of the Act as a threat of plant closure. I disagree. It is well established that predictions based on economic circumstances, as opposed to threats of occur- rences that are under the employer's control, are lawful, and in this instance Christy tied his reference to the pos- sibility of a lack of work to the Respondent's adverse economic situation. In these circumstances, I find that the comment did not violate Section 8(a)(1) of the Act.' Christy also testified to another conversation about the supposed June wage increase, testifying that at some point he had a conversation with employees Ron Badg- ley, Garry Shrum, Warren Walls, and someone identified in the record as "Billy Parris,"8 that during this conver- sation Badgley asked if there was any truth to the rumor that there was supposed to have been a wage increase in June, and that he replied that as far as he knew, there was not. Siniard, who I noted above I found to be a generally credible witness, testified that he had never heard any- thing from the Respondent about a June wage increase, that the employees had received raises in December 1985, and that he did not tell any employees that there would be an increase in June. The only employees to tes- tify besides Simard and Kemp were Shrum, Walls, John Sheppard, and Hershel Sparks, and none of these wit- nesses were asked about the supposed rumors of a June wage increase, although Christy testified that Shrum and Walls were present on an occasion when he was asked about the matter. In these circumstances I credit Siniard and find that he did not tell other employees either that the Respondent was supposed to have given the employ- ees a wage increase in June or that the Respondent had reneged on its agreement with the employees. 6 Christy's original affidavit, offered into evidence as a General Coun- sel exhibit, was lost, and the court reporter therefore submitted a copy as part of the record Counsel for the General Counsel and for the Respond- ent have been informally advised of this procedure and have indicated they have no objection, and the copy is therefore received into evidence Walter Garson, Jr & Associates, 276 NLRB 1226, 1229 (1985) It does not appear that anyone by that name was employed by the Respondent at material times, and the individual to whom Christy re- ferred was probably Billy Pierce, a unit employee b Summers' comment, as repeated by Summit Shrum testified9 that on some date he could not speci- fy he was in the plant lunchroom and heard Summit say that he had called Summers, the Respondent's president, who worked out of the Respondent's headquarters in Nashville, and told him that the men wanted to bring the Union back. According to Shrum, Summit said that Summers had been upset, and had said, "[F]ine, let them bring the Union back in, but we will be closing the doors down if they do." Shrum further testified that he men- tioned this conversation to two or three other employ- ees. Summit denied that he ever discussed the Union with Shrum, and I credit Shrum, and find that Summit made the comment Shrum attributed to him. I further find that the remark was a threat to close the facility if the em- ployees selected the Union as their representative and that it therefore violated Section 8(a)(1). c. Summit's remarks to Kemp Kemp testified that he attended a union meeting a few days after he had signed a card, and that a day or two after the meeting he initiated a conversation with Summit at the facility by telling him that he had gone. According to Kemp, Summit asked if he was "at liberty" to say anything about the meeting, and Kemp replied, "I guess." Then, still according to Kemp, Summit asked what the Union was offering, and he replied that they did not offer or guarantee anything, and that someone had asked a question about insurance which had never been answered. Kemp further testified that he told Summit that Short had said that if the employees did not want to be represented the Union "would back out gracefully." At some point in the conversation, Summit said that he had been in the Union and did not derive any benefit from it, and that he did not think the em- ployees would benefit from union representation. Kemp also testified that he did not remember if Summit said anything about the plant closing, but later stated that Summit had given his opinion that if the employees struck, Summers might close the plant Summit testified that in his conversations with Kemp the latter said that he had "messed up," that he had been misled , and that he had learned from attending a union meeting that the Union could not guarantee anything. Summit was not specifically asked if he made the state- ment that Kemp attributed to him Although Kemp was called as a witness for the General Counsel, it was clear that his sympathies in this proceeding lay with the Re- spondent, and he very reluctantly testified to Summit's comment. I therefore credit Kemp that the comment was made. The complaint does not specifically allege that Sum- mit's question to Kemp whether the latter was "at liber- 9 Shrum, who was no longer working for the Respondent at the time he testified, impressed me as a highly credible witness He seemed to be candid and forthright, and to try to recall events accurately I therefore credit him 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ty" to talk about the union meeting was unlawful,1° and counsel for the General Counsel does not urge in his brief that a finding of an unfair labor practice should be based on that inquiry. However, both participants in the conversation testified, and the Respondent was fully af- forded the opportunity to litigate the matter, and I thus find it appropriate to consider it In Rossmore House, 269 NLRB 1176 (1984), the Board held that "all the circumstances" must be considered in determining whether an interrogation violates the Act The Board went on to note that Some factors which may be considered in analyzing alleged interrogations are. (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation See Bourne v NLRB, 332 F.2d 47 (2d Cir 1964) These and other relevant factors are not to be mechanically applied in each case Rather, they represent some areas of inquiry that may be considered in applying in the Blue Flash test of whether under all the circumstances the interroga- tion reasonably tends to restrain, coerce, or inter- fere with rights guaranteed by the Act 11 Applying this test to the instant situation, I note that the inquiry occurred in a context of other unfair labor practices, sought specific information as to the Union's campaign, was undertaken by the highest official regular- ly at the facility, and occurred at the employee's work- place In these circumstances, and despite the fact that Kemp initiated the conversation, I find that Summit's questions were coercive and violated Section 8(a)(1) of the Act It is also not clear whether the complaint specifically alleged that Summit's remark to Kemp about the conse- quences of a strike was unlawful, and counsel for the General Counsel did not discuss this conversation in his brief. 12 Assuming that the legality of the remark is in issue, I find that the comment was not so much a threat of adverse consequences of unionization as a reasonable prediction of what would happen if the Respondent were required to withstand a strike on top of its other eco- nomic problems I therefore conclude that the comment did not violate Section 8(a)(1) d. Summit's comment to Walls Walls13 was off work due to illness from about 25 June to 20 July and credibly testified that during the first week of July he went to the Respondent's office to get some insurance forms According to Walls, while he was in the office he told Summit that "Things are looking a 10 The complaint alleges that the Respondent, about 29 July, interro- gated employees, but that allegation apparently refers to other conduct, discussed below 11 269 NLRB at 1178 fn 20 12 The complaint's allegation that the Respondent, through Summit, on an unknown date in July, threatened plant closure if the Union became the employees' collective-bargaining agent may have been meant to refer to other conduct, also discussed below 13 Walls also impressed me as a credible witness He appeared forth- right and also appeared to try to recount events accurately I thus credit him unless otherwise indicated little slow around here," and Summit replied that that was the case Walls then said that he was surprised that the operation had not closed, and Summit responded that, "I know one thing for sure, if that Union gets in the Company will close the doors." Summit, denied that he had any conversation with Walls in the office in which the Union was discussed, or that he ever told Walls that if the Union came in the plant would close For the reasons given above, I credit Walls, and find that the conversation occurred as he de- scribed it. I further find that Summit's comment was a threat that the facility would close if the Union succeeded in its or- ganizing efforts, and that, unlike some of the other re- marks discussed here, this comment was not a prediction based on objective considerations, but a pure and simple threat. I therefore find that it violated Section 8(a)(1) of the Act. e. Summit's comment to Shrum Shrum credibly testified that on Friday, 18 July14 he was working with Christy when Summit came tip to them and said that, "You guys might think about looking for another job," explaining that he had received a letter from Summers, the Respondent's president, saying that if the Union won the right to represent the employees "they was going to close the doors down." Summit also said that the Respondent had offered him a job "down south,"15 and had told him to discuss the situation with his family and see how they felt about moving. Accord- ing to Shrum, Summit further said that the Respondent either had sent or was going to send letters to its custom- ers notifying them that the Ellettsville plant might close and that they should start thinking about buying their product elsewhere Shrum further testified that after Summit left he ad- vised Christy that he was going to start taking Fridays off to look for another job The following Friday, July 25, Shrum accepted a new job, and formally resigned his employment with the Respondent on 28 July Summit flatly denied ever discussing the Union with Shrum and testified that he was never present during any conversation between Christy and Shrum in which the Union was discussed Summit further testified that he had never told Shrum that the Respondent had sent let- ters advising customers that the operation would close if the Union came in Similarly, Christy testified that he did not recall ever being present when Summit discussed the Union with Shrum, and also testified that Summit had not said in his and Shrum's presence that the Respondent had sent letters to customers and the plant would be closed if the Union represented the employees Nonethe- less, I credit Shrum, and find that Summit made the re- marks Shrum attributed to him I further find that these remarks constituted a threat of plant closure, which vio- lated Section 8(a)(1) of the Act. 14 At that time, according to Shrum, because business was slow the employees regularly worked Monday through Thursdays, and worked on Fridays only if they so chose 15 Apparently in Nashville, the Respondent's headquarters INDIANA CAL-PRO 801 f Summit's comment to Sparks As noted earlier, Sparks returned to work on 6 August after being off with a broken arm. He testified that on that date he went to the office and spoke to Summit and Richard Neil who worked in the office According to Sparks, Summit asked him if he had a job and said that Summers and Joe Arnold, the Respond- ent's vice president of operations, had said that if the Union "got, back in they was going to close the doors down " Sparks further testified that he did not respond, but that during that week Summit made similar com- ments three or four times in his presence. Summit denied having any conversation with Sparks during the summer of 1986 about the Union, and testified that he had checked the Respondent's payroll records and that Sparks returned to work the week of 15 August However, the payroll records were not introduced into evidence I was more favorably impressed with Sparks' demeanor than Summit's, and Neil did not testify. I therefore find that the conversation occurred as Sparks described it I further find that Summit's remark was a threat to close the facility if the Union represented the employees, that that threat violated Section 8(a)(1), and that the repetitions of the threat were also unlawful. g. Christy's alleged interrogation of employees Testifying as a witness for the General Counsel, Christy testified that he had had conversations with other employees similar to the one he had with Kemp in which he told Kemp, in response to the latter's question about what would happen if the Union came in, that be- cause of the slump in sales, it "could mean that there's no work " Christy denied, however, that he ever asked employees any questions abouf the union activity. At that point, the General Counsel showed him his prehear- ing affidavit, in which he stated, "I did ask employees what their feeling was, why they didn't ask John Simard the questions they were asking me about the once a year with the Company," i.e, the annual wage review sched- uled for December Christy attempted to explain this ap- parent inconsistency between his affidavit and his testi- mony by stating that the questions to which the affidavit referred were not about union activity, but about why the employees did not address their inquiries to Simard instead of to him. I do not credit Christy on this point, given his concession in the affidavit that he asked em- ployees "what their feeling was," and thus find that he did ask employees their views about the union activity. Further, as it appears that Christy was interrogating the employees precisely in order to ascertain whether they supported the Union, I conclude that these ques- tions violated Section 8(a)(1) of the Act 16 3 The petitions disavowing interest in union representation and related conduct a Events prior to July 30 Kemp testified that a few days or a week before 31 July he went to the union hall with several other em- ployees to tell the Union's representatives that they did not want to be represented, and that while they were at the union hall union representative Short and employee Don Thompson had an argument, which resulted in Short telling Thompson to leave Kemp further testified that he thought that Simard was one of the employees who went with him to the union hall on that occasion However, Simard credibly testified that he attended an evening union meeting in late July, but that there was no discussion at that meet- ing about the Union withdrawing its petition for an elec- tion. Simard further credibly testified that the day after this meeting Kemp told him that he thought "we screwed up," and that when Simard asked him to ex- plain, Kemp said that if the 'employees brought the Union back, management would "shut the doors." Sin- iard asked what made Kemp say that, and Kemp replied that Simard had told some lies, and that Christy had said the employees had the "best insurance that was going," and also referred to the supposed June raise Siniard re- plied that he had not lied, because the employees' insur- ance "wasn't worth the paper that it was wrote on." Ac- cording to Siniard, Kemp then asked him to call the Union and ask it to "back off," and he replied that he would do S0.17 Kemp denied having any conversation with Simard in which he accused the latter of lying to him For the rea- sons given earlier, I credit Simard and find that the con- versation occurred as he described it. Simard credibly testified that the morning after this conversation with Kemp, Summit called him into the office and, in Kemp's presence, asked him if he had called the Union or told the Union to "back off," and Siniard said that he had not Summit then asked Simard if the latter was going to call the Union and Simard said that he would., Summit denied having this conversation with Simard, but I credit Simard and find that Summit asked Simard if he had called the Union and then asked him to do so. I further find that this question was in effect an instruction to Siniard to tell the Union to stop its organizing efforts, that it was coercive, and that it therefore violated Sec- tion 8(a)(1) of the Act Also contrary to Smiard, Christy testified that on 29 July Simard asked him to be relieved from work long enough to call union agent Hardy, saying that he wanted to get the Union to "pull" the representation petition be- cause he had been to a union meeting the night before and he and the other men wanted to end their affiliation with the Union. Christy further testified that in that same conversation Simard told him that Kemp had started the 16 Robins Federal Credit Union, 273 NLRB 1352, 1335-1356 (1985), Kona 60 Minute Photo, 277 NLRB 867 (1985) 17 On cross-examination , Simard testified that he offered to call the Union I do not view this inconsistency as reflecting adversely on his overall credibility 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union campaign and he had gone along with him, and that he hoped no one had any hard feelings toward him. According to Christy, he told Siniard that he could call the Union any time, and Siniard said that he would wait until lunchtime. Siniard denied having this conversation with Christy. I credit Siniard. b The events of 30 or 31 July18 Summit testified that on 30 July employee Don Shep- pard asked him to help him draft a petition to get rid of the Union . Acording to Summit, he wrote at the top of a piece of paper , "This is a petition to discontinue the rep- resentation of the Laborers [sic] Union Local 741 of Bloomington," gave the paper to Sheppard, and Shep- _ pard took it into the lunchroom Summit further testified that at that point it was about 3:15 p.m ., close to quitting time, and that he followed Sheppard into the lunchroom and saw some of the employees sign the paper . Accord- ing to Summit, Walls was the only employee to ask him what the paper was. Sheppard corroborated Summit , except that Sheppard testified that Summit wrote the petition around noon and that he picked it up and took it to the lunchroom before quitting time. Siniard and Walls testified that the petition was lying on a table in the plant lunchroom at 3:30 in the afternoon on 31 July, and that Summit was nearby. Both employ- ees testified that Summit told them that the paper was a petition to the Union that they could either sign or not, and that they signed because they were afraid that failure to do so would label them as union supporters . Siniard and Walls further testified that , at the time they signed the petition, Summit's name was at the bottom. The parties stipulated that on 8 August Summers wrote to Board agent Stanley Durnell in the Regional Office for Region 25, enclosing a copy of a document al- leged to be a petition signed by employees and a letter to a Field Representative of the Laborers International Union of North American asking his intentions regarding representation of the Respondent's employees in light of that petition . The copy sent to the Regional Office ap- pears to be of a document which was torn across the top and the bottom, contains the previously quoted heading, and bears 12 signatures, including Siniard's, but not Sum- mit's. The document also bears , the upper right-hand corner, the notation "7-31-86," and, under that date, the name "John Sheppard." Sheppard's name appears again on the document as the first signature under the heading. Summit, essentially corroborated by Sheppard , testi- fied that , the day after the petition was signed in the lunchroom it was on his desk, that he never signed it; and that no portion of it was ever torn off, but that the document as it appeared on his desk was a facsimile of the one sent to the Regional Office . Summit further testi- fied that he sent the petition to Summers , called him to say he had done so, and that Summers asked him if the petition had been written by one of the employees. 18 It is not clear from the record whether the events about to be de- scribed occurred on 30 or 31 July I find it unnecessary to resolve the issue Summit replied that he,had written it, and Summers then said that the petition was not legal. I credit Summit's comment that the petition was "not legal," he sent it to the International Union with which the Union is affili- ated. Simard and Walls testified that the copy of the petition sent to the International was not a copy of the, one they signed, that, in addition to displaying Summit's signature, the petition they signed was not torn and did not have Sheppard's name in the upper right-hand corner. I credit the two employees and find that the petition they signed was also signed by Summit. Kemp testified about `the circumstances surrounding his signing of the petition, but not about whether Summit signed it. According to Kemp, he was in the office about quitting time that day Summit asked him if he wanted the Union to represent him, and when he replied that he did not, Summit asked him if he wanted to sign a peti- tion which so stated. Kemp replied that he would, and did.. Kemp further stated that Siniard was present at the time and that Summit asked Siniard if he had called the Union yet to tell them that the employees did not want representation. According to Kemp, Siniard said that he had not yet called but would.19 I further credit Kemp's testimony that Summit asked him if he wanted the Union to represent him and if he wanted to sign the petition Both the inquiry as to an em- ployee's desire to be represented and the solicitation to sign the petition disavowing the' Union were coercive and violated Section 8(a)(1) of the Act. I also find that Summit substantially participated in the preparation of the petition; that because of that conduct and Summit's presence when employees signed it, the pe- tition cannot be considered an indication of the employ- ees' views toward union representation, 2 0 and that Sum- mit's involvement in the preparation of the petition, sepa- rate and apart from his comments to Kemp, violated Section 8(a)(1) c Subsequent events Siniard, essentially corroborated by Walls, credibly testified that the day after he signed the petition several of the employees were in the lunchroom when Christy asked if someone would rewrite the petition because ,Summers had telephoned and advised that it was "not legal" for Summit to sign it. Siniard further testified that he told Christy that he would neither rewrite the petition nor sign a new' one. Christy denied that he told employees that the petition was "not legal," and also denied that he talked to either Siniard or Walls about signing another petition For the reasons previously stated, I credit Walls and Siniard. I therefore find that Christy solicited employees to prepare a new antiunion petition, and that the Respondent there- by violated Section 8(a)(1) 19 I have found above that Summit asked Siniard if he had called the Union and that this question violated the Act Siniard referred to a con- versation in the morning, while Kemp testified it occurred around quit- ting time I find it unnecessary to resolve the discrepancy 20 Midwestern Mining, 277 NLRB 221 (1985), cited by the General Counsel INDIANA CAL-PRO 803 Simard testified that the -same day Christy advised the employees that the petition was not legal , he ,called union business agent Hardy and told him that the em- ployees wanted him to "back off." Hardy asked why, and Siniard said that Summit2I had presented the em- ployees with the petition At that point, according to Siniard, Hardy said that he was going to file an unfair labor practice charge with the Board , because the peti- tion was "not legal '•' It is undisputed that at least one more petition was prepared . Kemp testified that a day or so after the peti- tion discussed above was signed, Summit told him that he did not think that that petition would do any good and that he believed that the Union thought that he had "filled it out" (i e , written the text ), and caused the em- ployees to sign it. According to Kemp , he asked Summit about writing a petition himself, and Summit said it was up to Kemp. Summit similarly testified that Kemp asked him if he should write a second petition and that he re- plied that he did not know. According to Kemp, he wrote a second petition, along with Sheppard and employee Richard Crowe signed it, and then left the petition on a table. According to Kemp, he heard nothing more about that document , so he and some of the other employees decided to send a registered letter to the Union This letter was apparently signed by some other employees and sent to the Union but was not offered into evidence and is not alleged to be a basis for the Respondent's refusal to recognize the Union. Both Summit and Kemp testified that Kemp told Summit about the letter after he had mailed it 4 The representation proceeding As noted above, the Union filed a petition in Case 25- RC-8360 on 8 July Subsequently, the parties entered into a Stipulation for Certification Upon Consent Elec- tion, setting an election date of 21 August However, the instant charge was filed on 13 August, blocking further processing of the representation proceeding Consequent- ly, the election was not held C The Propriety of a Bargaining Order The, General Counsel urges that a majority of the em- ployees had designated the Union as their collective-bar- gaining representative in June, that the Respondent's unfair labor practices eroded that majority and destroyed any possibility of a fair election, and that in consequence the Respondent should be ordered to recognize and bar- gain with the Union . In support of this contention, the General Counsel cites NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), for the proposition that where "the pos- sibility of erasing the effects of past practices and of en- suring a fair election (or a fair rerun) by the use of tradi- tional remedies, though present , is slight and that em- ployee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue . . ....22 The. Respondent, on the other hand , contends that any unfair labor practices it committed were not serious enough to warrant a bargaining order, citing various cases in which, despite , finding that an employer engaged in unlawful conduct, the Board, or the courts of appeals concluded that a bargaining order was not a necessary remedy In the instant case, I have found that ( 1) a majority of the employees (9 of 14) in the appropriate unit had desig- nated the Union as their collective-bargaining representa- tive as of 20 June; (2) the Union had demanded recogni- tion by 11 July; (3) in July and August the Respondent violated Section 8(a)(1) of the Act by: (a) Summit's repe- tition to Shrum of Summer's threat to close the facility if the Union represented the employees ; (b) Summit's ques- tions to Kemp about what happened at a union meeting; (c) Summit's comment to Walls that "if that Union gets in the Company will close the doors"; (d) Summit's 18 July remarks to Shrum that if the Union represented the employees "they was going to close the doors down," and that the Respondent had advised or was about to advise its customers that the plant might close, (e) Sum- mit's threat to Sparks on 6 August that the plant would close if the Union "got back in" (noting, also, that that threat was repeated); (f) Christy's interrogation of em- ployees as to "what their feeling was " about the Union; (g) Summit's question of Siniard as to whether he had called the Union to ask it to "back off' and then, after Siniard replied in the negative , asking him to make the call; (h) Summit's inquiry of Kemp as to whether he wanted to be represented by the Union and solicitation of him to sign the petition; (i) Summit's participation in the preparation of the petition , signing of ,it, and presence when employees signed it ; and (j) Christy's solicitation of employees to sign a new petition after being advised that the one signed by Summit was "not legal " Thus, the question becomes whether this conduct is such that tradi- tional remedies are not likely to ensure a fair election, so that the employees' freedom of choice would be better protected by a bargaining order than a representation election.23 In Kona 60 Minute Photo, supra, cited by the General Counsel , the Board found a bargaining order appropriate where the respondent unlawfully interrogated three em- ployees in a small unit , posted a notice in which it threat- ened to cancel pay raises and to discharge some or all of the employees because of their union activities , and, by its general partner, threatened to fire any employees found to be involved with the union and that seeking union representation would be an exercise in futility be- cause respondent would refuse any bargaining request and would hire new employees if the employees struck over its refusal to bargain in good faith. The Board found that this conduct "struck at the very core of the employees' organizational efforts," that the threats were widely disseminated, and that "The seriousness of -the 23 In Gissel the court also referred to the possibility of issuing bargain- 21 The transcript stated "Dave " The General Counsel's motion to cor- ing orders irrespective of the Union 's majority status in "exceptional" rect the record to read "Steve" comports with my notes and is granted cases "marked by 'outrageous ' and 'pervasive' unfair labor practices " 395 above - U S at 613 The Respondent 's conduct here does not fall into that cate- 22 395 U S at 614-615 gory 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's conduct is further underscored by the small size of the unit and the high level of the manage- ment officials involved Taken as a whole, the Respond- ent's acts involve the type of severe and pervasive coer- cion which has lingering effects not readily dispelled" and that "[r]equiring the Respondent simply to refrain from such conduct will not eradicate the lingering effects of the violations Correspondingly, an election would not reliably reflect genuine, uncoerced employee senti- ment.24 I conclude that similar considerations mandate a bar- gaining order in the instant case. The two management officials responsible for tpe day-to-day operation of the Ellettsville facility made widely disseminated and repeat- ed threats to the employees in a small bargaining unit that the Respondent would close the facility if the Union became the employees' collective-bargaining representa- tive, interrogated employees about their feelings toward the Union, and the plant superintendent drafted a peti- tion for the employees to sign disavowing support for the Union, signed that petition himself, solicited an em- ployee to sign it, and stood nearby while other employ- ees signed. Further, the member of management who was second-in-command, after learning that that petition was invalid, solicited employees to draft another. In these circumstances, I find that it is unlikely that a fair and free election would ever be conducted, and I there- fore conclude that the best way to effectuate the employ- ees' choice, as indicated by their signing of union author- ization cards, is to order the Respondent to bargain with the Union Inasmuch as the date that the Respondent began its course of unlawful conduct is not clear in the record and as in any event it appears that the unfair labor practices began about the time that the Respondent received the representation petition, I shall recommend that the Respondent be ordered to bargain as of 11 July. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Indiana Cal-Pro, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Laborers' Local Union No. 741, a/w Laborers' International Union of North America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3 All production and maintenance employees of the Respondent at its Ellettsville, Indiana, facility, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since 20 June 1986, the Union has represented a ma- jority of employees in the unit described above for pur- poses of collective bargaining 5. By ,interrogating employees about their feelings about the Union and about what occurred at union meet- ings, asking employees whether they desired union repre- sentation and whether they would sign a petition dis- 24 277 NLRB 867, 870, 871 avowing support for the Union, threatening to close the facility if the Union became the employees' representa- tive, participating in the preparation and dissemination of a petition disavowing the Union, and soliciting employ- ees to sign that petition and to prepare another, the Re- spondent has violated Section 8(a)(1) of the Act. 6 By failing and refusing to recognize and bargain with the Union as the employees' collective-bargaining representative, but instead attempting by means of unfair labor practices to destroy its employees' support of that labor' organization, the Respondent has violated Section 8(a)(1) and (5) of the Act. 7 The unfair labor practices found above warrant an order requiring the Respondent to bargain with the Union at the latter's request concerning rates of pay, wages, hours, and other working conditions of the unit employees 8 The record does not establish that the Respondent has otherwise violated the Act. THE REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. Having found that the Respondent has violated Sec- tion 8(a)(l) and (5) of the Act by refusing to recognize and bargain with the Union as the representative of the employees in an appropriate bargaining unit, I shall rec- ommend that the Respondent be ordered to recognize and bargain with the, Union, at the latter's request, con- cerning the rates of pay, wages, hours, and other terms and conditions of the employees in that unit Further, as is customary in these cases, I shall recom- mend that the Respondent be required to post an appro- priate notice Finally, the General Counsel has requested that the remedy include a visitatorial clause I find such a clause unnecessary in the circumstances of this case, and there- fore deny the request On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Indiana Cal-Pro, Inc, Ellettsville, In- diana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their feelings about Laborers' Local Union No. 741, a/w Laborers' Interna- tional Union of North America, AFL-CIO or any other labor organization, and about what occurred at union meetings, asking employees whether they desire union representation and whether they would sign a petition disavowing support for the Union, threatening to close 25 If no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided by Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes INDIANA CAL-PRO the facility if the Union became the employees ' repre- sentative, participating in the preparation and dissemina- tion of a petition disavowing the Union and soliciting employees to sing that petition and to prepare another (b) Failing and refusing to recognize and bargain with the Union as the employees' collective-bargaining repre- sentative. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request , recognize and bargain with Laborers' Local Union No. 741, a/w Laborers' International Union of North America, AFL-CIO as the representative of its employees in the appropriate unit described above, con- cerning unit employees' rates of pay, wages, hours, and other terms and conditions of employment The appro- priate unit for purposes of collective bargaining is- All production and maintenance employees of the Respondent at its Ellettsville, Indiana, facility, ex- cluding office clerical employees, professional em- 805 ployees, guards , and supervisors as defined in the Act (b) Post at its premises in Ellettsville, Indiana, copies of the attached notice marked "Appendix "26 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 the notices are not altered, defaced, or covered by another other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 26 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 "