English Brothers Pattern and Foundry

DECISIONS OF NATIONAL LABOR RELATIONS BOARD English Brothers Pattern and Foundry and Ware- house Union Local 6, International Longshore- men's and Warehousemen's Union. Case 32-- CA-2182 December 23, 1980 BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN On August 21, 1980, Administrative Law Judge Michael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order, as modified herein. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraphs 7 and 9 of the Administrative Law Judge's Conclusions of Law: "7. By polling employees on October 8, 1979, by asking them to raise their hands if they wanted the Union, and thereafter polling individual employees at their work stations, Respondent interrogated its employees for the purpose of undermining support for the Union and thereby violated Section 8(a)(l) of the Act. "9. All production, maintenance, and warehouse employees, including shipping and receiving clerks, employed by the Employer at its Hayward, Cali- fornia, facility, excluding office clerical workers, salesmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act." AMENDED REMEDY We are of the opinion, in agreement with the General Counsel, that the policies of the Act will best be effectuated if the notice which Respondent I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The General Counsel requests that an additional instance of polling be found and included in the Conclusions of Law. This polling occurred at the employee meeting held by Clyde English shortly before the indi- vidual polling of employees at their work stations concerning their union sentiments. Both polls indicated majority support for the Union, have been litigated here, and are binding upon Respondent We amend the Conclusions of Law accordingly 253 NLRB No. 67 is required to sign and post includes an introduc- tory paragraph explaining to employees by what process their rights have been upheld, and that it is appropriate to post the notice in Spanish as well as English. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, English Brothers Pattern and Foundry, Hayward, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph l(d): "(d) Polling employees at group meetings, as well as polling individual employees at their work stations, for the purpose of determining their sup- port for the Union without adequate safeguards and for the purpose of undermining support for the Union." 2. Substitute the following for paragraph l(e): "(e) Failing or refusing to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Warehouse Union Local 6, International Longshoremen's and Warehousemen's Union, as the exclusive representative of its employees in the following appropriate unit: All production, maintenance and warehouse employees, including shipping and receiving clerks, employed by the Employer at its Hayward, California, facility; excluding office clerical workers, salesmen, guards and supervi- sors as defined in the Act." 3. 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 Act, as amend- ed, gives all employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice 530 ENGLISH BROTHERS PATTERN AND FOUNDRY To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT coercively interrogate em- ployees concerning their union activities. WE W. NOT threaten employees with plant closure as a means of defeating the Union. WE WILL NOT suggest that benefits would be increased and solicit grievances for the pur- pose of undermining support for the Union. WE WILL NOT poll employees, either at group meetings or on an individual basis at their work stations, as to their support for the Union without adequate safeguards and for the purpose of undermining support for the Union. WE WILL NOT fail or refuse to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with Warehouse Union Local 6, International Longshoremen's and Warehousemen's Union, as the exclusive repre- sentative of all the employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, recognize and bar- gain collectively with the above-named Union, as the exclusive representative of all the em- ployees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production, maintenance and warehouse employees, including shipping and receiving clerks, employed by the Employer at its Hayward, California, facility; excluding office clerical workers, salesmen, guards and supervisors as defined in the Act. ENGLISH BROTHERS PATTERN AND FOUNDRY DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge: This case was heard before me at Oakland, California, on April 29, 1980,1 pursuant to an amended complaint I All dates herein refer to 1979 unless otherwise indicated Relations Board for Region 32 on April 24, 1980,2 and which is based on a charge filed by Warehouse Union Local 6, International Longshoremen's and Warehouse- men's Union (herein called Union) on October 11. (A first amended charge was filed on October 12 and a second amended charge was filed on November 30.) The complaint alleges that Respondent English Brothers Pat- tern and Foundry (herein called Respondent) has en- gaged in certain violations of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended (herein called the Act). Issues Whether Respondent restrained and coerced its em- ployees in the exercise of their Section 7 rights by com- mitting the following acts in violation of Section 8(a)(1) of the Act: (a) By interrogating its assembled employees concern- ing their support for and activities on behalf of the Union; (b) By individually polling its employees as to whether they had designated the Union as their collective-bar- gaining representative; (c) By promising its assembled employees increased benefits and wages in order to discourage support for the Union; (d) By threatening its assembled employees with plant closure before Respondent would deal with the Union; (e) By refusing to recognize and bargain with the Union as the collective-bargaining representative of unit employees when Respondent was under a legal duty to do so. (This also in violation of Section 8(a)(5) of the Act.) All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits that it is a California partnership engaged in the manufacture of wood and metal patterns and aluminum, bronze, and brass castings, and having its place of business located in Hayward, California. It fur- ther admits that during the past year, in the course and conduct of its business, it has sold and sent goods or services valued in excess of $50,000 to customers or busi- ness enterprises within the State of California, which cus- 2 The original complaint was filed on November 30. After the hearing had begun, counsel for Respondent represented that he had received his copy of the amended complaint only day before the hearing although he had received telephone notice from the General Counsel a few days before No claim was made that Respondent was not ready for hearing While suggesting that counsel for Respondent file a written answer to the amended complaint. I did not require him to do so and he has not done so His oral amendment to the original answer may stand without preju- dice. 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tomers or business enterprises themselves meet one of the Board's jurisdictional standards, other than the indirect inflow or indirect outflow standards. Accordingly it admits, and I find, that it is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. I'HE LABOR ORGANIZATION INVOI.VED Respondent admits, and I find, that Warehouse Union Local 6, International Longshoremen's and Warehouse- men's Union is a labor organization within the meaning of Section 2(5) of the Act. 111. 'I'HE AI.LEGED UNFAIR LABOR PRACTICES A. The Facts Since 1946, Ernie English owned and operated a small foundry in Hayward, California. Over the years his son, Clyde English, worked in the business, and about 3 years ago Clyde joined his father as a partner on a full-time basis. Respondent's production employees are all young Mexican males who speak little or no English and have limited educations. Their testimony, as reflected below, was given through an interpreter. The parties agreed and stipulated at the hearing that as of October 8, the follow- ing production, maintenance, and warehousing persons (hereafter P, M, & W) were employed by Respondent and that these employees constituted an appropriate unit for purposes of collective bargaining: Jose Arias Gorge Cardenas Sergio Gonzalez Alfredo Inguanso Jose Inguanso Richardo Ramirez Francisco Reynosa Juan Villalpando Miguel Felix. Beginning in early to mid-September, or before, Re- spondent's production employees began to discuss among themselves a perceived lack of fringe benefits and low wages. One of their number, Sergio Gonzalez, an em- ployee of Respondent for about 3 months, had a brother- in-law who worked elsewhere and was a member of the Union. Sometime in mid-September, Gonzalez went with his brother-in-law to the union hall in Oakland where Gonzalez met Felix Rivera, an organizer, and Roberto Flotte, union business agent. It was explained to Gonza- lez that in order to bring in the Union as collective-bar- gaining representative, he and other employees would have to sign union authorization cards. Flotte also told Gonzalez at this time that if he and the other employees wanted the Union, they should all return to the union hall to sign the cards. Accordingly, about 2 weeks later, Gonzalez returned to the union hall with six of his fellow employees, Arias, Reynosa, two Inguanso broth- ers, Ramirez, and Cardenas. Gonzalez had explained to the others the purpose of the cards and four of his co- workers signed at the union hall and three signed later at the home of Arias. This was done because the Union did not have sufficient cards for all seven at the time Re- spondent's employees went there. I find that all seven signed the cards because they wanted the Union to be their collective-bargaining representative. The cards were printed in English only and read: I designate the Warehouse, Processing & Allied Workers, Local No. 6, I.L.W.U. as my bargaining agent with the company on wages, hours, and working conditions. The cards then contained lines for [printed] name, ad- dress, phone, date, name of employer, and signature. Five of the persons who signed cards testified at the hearing and I am fully satisfied that they as well as the others understood clearly the purpose of these cards. The employees were particularly concerned about medi- cal benefits because the wife of one of their number, Al- fredo Inguanso, had incurred large maternity expenses not covered by any medical insurance plan. It was also stipulated between the parties that, on Oc- tober 5, Ernie English received a verbal telegram over the telephone from the Union stating that it represented a majority of Respondent's P, M, & W employees and requesting that Respondent bargain over wages, hours, and working conditions. It was further stipulated that on October 6, Respondent actually received the telegram re- ferred to above. On October 8, Rivera and Flotte went to Respondent's place of business and talked to Clyde English. The union officials again stated that they represented a majority of Respondent's P, M, & W employees and that they were ready to sit down and negotiate a contract. English re- sponded to this by saying, "Well, we are under a union. We have a union here." The basis for this statement was the fact that two patternmakers and Clyde English him- self, all outside the unit, were members of the pattern- makers' union. Rivera replied to the English statement that, to the best of his knowledge, this was not true. The two union officials then left and while outside greeted several of Respondent's employees who had previously signed union authorization cards and were then on cof- feebreak. Upon conclusion of the coffeebreak, Clyde English called a meeting of his P, M, & W employees in the shop. The parties sharply dispute what occurred at this meeting. All agree that Clyde English first directed that all ma- chines be turned off. Then he called Letitia Anguiano, a bilingual secretary, to translate from English to Spanish and vice versa. English had used Anguiano before on two or three occasions to interpret between himself and the employees, and her method, while not perfect, was adequate. She did not perform simultaneous translation, but rather one or two sentences or phrases at a time. An- guiano, a current employee of Respondent, testified at the hearing, but was of little value in resolving the con- flicts in testimony. Basically, Anguiano testified that she could not remember what was said either by Clyde Eng- lish or by the employees. Other witnesses, however, claimed to remember what was said at the meeting. The General Counsel presented Gonzalez, Cardenas, Arias, Ramirez, and Reynosa as witnesses. None of the witnesses were currently em- ployed by Respondent. All of them testified to what they heard Anguiano say in Spanish as a translation of the re- marks of Clyde English to the assembled employees. 532 ENGLISH BROTHERS PATTERN ANI) FOUNDRY Gonzalez testified that Anguiano said the employees should not think about the Union coming in. Anyone who did not want to work should tell him. Then the fol- lowing question and answer occurred at the hearing: Q. [By the General Counsel] During the meeting at any point do you recall that the employees raised their hands? A. [By Gonzalez] Yes. He [English] asked us whether we wanted the Union and he said that whoever wanted the Union should lift his hand a little bit. And we all raised it just a little bit, very low. Gonzalez testified that seven employees raised their hand-presumably the same seven who had signed the cards. On cross-examination, Gonzalez added to his rec- ollection of the meeting. English began by asking who had called in the Union, but nobody responded. Still later, on redirect examination, Gonzalez testified that, at one point, English said he would close the plant before giving in to the Union. 3 The next witness, Cardenas, also testified about the meeting and, like Gonzalez, testified that English asked employees to raise their hands if they wanted a union. Then English added that the Union would not come in and that he would close his business before he would give money to the "government."Cardenas concluded his testimony by relating additional comments of English to tell the Union not to come in if employees wanted more money. The witnesses Arias. Ramirez, and Reynosa also testified and generally supported the accounts of the first two witnesses. For Respondent, Ernie English, who was present for the meeting, did not testify, but Clyde English did. Called both as an adverse witness and as a witness in Re- spondent's case-in-chief, English testified that he told the assembled employees that he had no objection to the Union, that he did not care who called the Union, but asked, "What seems to be the problem?" One of the em- ployees mentioned that they had no medical benefits and English replied that he was working on a plan, but that it would take additional time. Then English asked his employees whether they wanted some form of profit- sharing, saying further that Respondent might provide profit-sharing at a later date. English further testified that, a week before the meeting, he had arranged for a wage increase for the P, M, & W employees, but it had not been announced generally. English mentioned it at this meeting. Only two employees, Jose Inguanso, and a foreman, Villalpando, allegedly knew about the raise. Neither of these persons testified, Inguanso because he was in Mexico at the time of the hearing and Villalpando for unexplained reasons. In addition, neither payroll re- cords nor any other business records were offered by Respondent. In continuing his testimony, English denied asking employees to raise their hands or threatening to close down the plant. He did admit saying to employees, 3 Anguiano used the Spanish word for "government" instead of "union." But Gonzalez testified that he and everyone else knew what she meant to say as a translation of English's remarks. "What are you trying to do, close the plant down or what?" After the meeting ended, English had short conversa- tions with several of the employees individually. Al- though English did not use an interpreter, he was able to communicate. Again the content of the conversations is disputed. All the employee witnesses testified that Eng- lish came up to them as they were working and asked them if they wanted the Union. All answered that they did. English, while admitting that he contacted the em- ployees, testified that he asked only whether the individ- ual thought it was a "bueno" [good] union. English denied that what he did constituted polling his employ- ees. B. Discussion and Analysis 4 I begin by resolving all conflicts in the testimony against Clyde English. I find him to be a less credible witness than the five former employees. In reaching my conclusion, I note that neither Gonzalez nor Cardenas had mentioned to a Board agent English's statement asking all employees who wanted the Union to raise their hands. In addition, Anguiano did not recall employ- ees raising their hands. Yet, these discrepancies are not sufficient to convince me that English did not make the statement. First, Arias, Reynosa, and Ramirez were not impeached on this point.5 Next, Anguiano was not a credible witness. Of all the employee witnesses involved in the meeting of October 8, she was the only one still employed there. Her testimony that she was unable to remember any of the conversation in which she acted as interpreter is totally incredible. Finally, I believe the five employees and disbelieve English because the undisputed evidence clearly shows a course of action to defeat the Union by coercing employees into retreating from their desire to have the Union represent them. 6 This course of conduct becomes more meaningful when first examined in light of surrounding circumstances. English called a meeting of employees during work- time immediately after the two union officials had made their demand for recognition and for bargaining. No group meetings of employees had ever been held before. 4 I agree with the General Counsel that Anguiano, in interpreting to the assembled employees, acted as agent of Respondent. As the Board stated in Community Cash Stores. Inc., 238 NLRB 265 (1978), affd. 603 F2d 217 (4th Cir 1979), "The critical issue in making this determination [whether an employee, not an acknowledged supervisor acted as a Re- spondent's agent]l is whether under all the circumstances [the employee would reasonably believe that the employee was reflecting company policy, and speaking and acting for management." Based on Anguiano's actions here, there can be little doubt that employees reasonably believed that she spoke and acted for management. s Respondent mistakingly argues in its brief that none of the five wit- nesses had previously mentioned that they were asked to raise their hands. In addition, I find, contrary to Respondent's claim, that seven of the employees raised their hands in response to the question As to whether English observed the raised hands. this is less clear, but also in- material 6 In addition. Respondent's unexplained failure IIo call Ernie English. partner in the business. and a witness to the October 8 meeting. creates an adverse inference that his testimony would support the General Coun sel's case. See artin Luther King. Sr. Nursing Center. 231 NRB 15 {1977) (failure of employer to produce material ilness): rodm(xr Lumber Compunv. 227 NLRB 1123, 1130 (1977) (failure of employer to produce witness to corroborate denials) 53 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD English directed that all machines be turned off and pro- duction was halted for the duration of the meeting.7 Im- mediately before this meeting, Respondent's P, M, & W employees had been on a coffeebreak. They saw and spoke to the two Spanish-speaking union officials who had just left the building after having spoken to Clyde English. This then is the background for the meeting and I turn to the individual violations alleged by the General Counsel. 1. Unlawful interrogation The credited testimony indicates that English began the meeting by asking who had called in the Union. The fact that no one responded to this question is itself evi- dence of its coercion. 8 Later, English asked all who wanted the Union to identify themselves by raising their hands. This time several of the employees responded, but cautiously, as reflected by the testimony of Gonzalez re- lated in "The Facts." The test applied in determining whether a violation of Section 8(a)(1) of the Act has oc- curred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the exercise of employee rights under the Act." 9 Apply- ing this test, I find that Respondent, by interrogating its employees as set forth above, has interfered with, re- strained, and coerced its employees in the exercise of its Section 7 rights. My conclusion here is supported by the lack of any legitimate reason for the questioning of em- ployees.1 0 In addition, English, while interrogating em- ployees, gave them no assurances against reprisals. " 2. Threats to close the plant The interrogation discussed above was not only coer- cive when considered in the context of the union demand for recognition and bargaining but was also ac- companied by English's threat to close the plant before giving in to the Union. This threat is itself a violation of Section 8(a)(l) of the Act.12 In this respect, I agree with the General Counsel that even accepting English's ver- sion of what was said, "What are you trying to do, close the plant?" in the context of discussing the union petition and what employees wanted from English, would require that a violation be found. This is so because he is clearly conveying to employees that by going to the Union, they risked having the business closed.' 3 I Gonzalez testified that the meeting lasted about 1-1/2 hours. I believe this estimate to be exaggerated. However, a small business can ill afford any lost production time. Therefore, the length of the meeting, as well as its content, served to emphasize Respondent's purpose-which I find to be to erode support for the Union. 0 H Restaurant, Inc., trading as The Backstage Restaurant, 232 NLRB 1082 (1977). 9 Electrical Fillings Corporation, a Subsidiary of I-T-E Imperial Corpora- tion, 216 NLRB 1076 (1975). 10 See Jefferson National Bank, 240 NLRB 1057 (1979); World Wide Press, Inc., 242 NLRB 346 (1979). d N.L.R.B. v. Cement Transport, Inc., 490 F.2d 1024, 1028 (6th Cir. 1974), cert. denied 419 U.S. 828 (1974). 12 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-620 (1969); Keeshim Charter Service. Inc., 250 NLRB 780 (1980). Is Winn-Dixie Stores, Inc., 236 NLRB 1547, 1550 (1978). 3. Increased benefits and solicitation of grievances In this area there is little conflict between English and his employees. English testified that in attempting to find out what the employees wanted, he raised the question of profit-sharing. I credit this portion of English's testi- mony and find that it violates the Act. He was clearly indicating that if this is what it took to keep the Union out, he would consider it. As to wages, English asked whether this is what the employees wanted. This time, however, he had some- thing positive to offer, claiming that the decision to raise wages had been made "a week before any of this hap- pened." English was apparently referring to a week before October 5, his first official notice of union activi- ties. Respondent had the burden of proof to show that a wage increase had been decided upon prior to the criti- cal period when it was announced. Two persons alleged- ly knew about it: one was in Mexico and the other, a foreman, did not testify for unexplained reasons. Also, Ernie English did not testify and no payroll or other business records were introduced to show when the raise in pay was decided upon. Accordingly, I find that the purpose of mentioning it to the assembled employees was to persuade them that a union was not necessary for in- creased benefits, because only the Employer had the nec- essary power. This violates Section 8(a)(l) of the Act.t4 I also find that English told the employees that more wages would come only if the Union was kept out. This is still another violation of Section 8(a)(l). The solicitation of employee grievances after a union's demand for recognition and for bargaining accompanied by a promise, express or implied, that the grievances will be remedied is a violation of the Act. The essence of such a violation is not the solicitation of grievances itself; rather, it is the promise to correct them, either express or inferred from the solicitation. 5 Such conduct constitutes an unlawful restraint upon and interference with the em- ployee's self-organizational rights guaranteed under the Act because implicit therein is the promise that benefits will be awarded to them by their employer so long as they are not represented by a labor organization and be- cause it tends to frustrate the employees' organizational efforts by showing them that union representation is un- necessary. Thus, when Respondent herein, in response to the Union's demand for recognition and for bargaining, solicited grievances from its employees and then indicat- ed that it would or might satisfy their demands, it violat- ed Section 8(a)(l) of the Act.t 4. The Employer's post-meeting poll of employees It is undisputed that after the above-discussed meeting with employees ended, they returned to work. Shortly 4 For the same reasons, I find that English's promise to have medical benefits in December or January is not supported by evidence that it had been arranged before the employer learned of the union activity and is therefore violative of Section 8(a)(1). if The Stride Rite Corporation, 228 NLRB 224 (1977). Campbell Soup Company, 225 NLRB 222 (1976); Uarco Incorporated, 216 NLRB 1 (1974). 16 N.L.R.B. v. Exchange Parts Company, 375 US. 405, 409-410 (1964). McMullen Corporation d/b/a Briarwood Hilton, 222 NLRB 86 (1976); Te- ledyne Dental Products Corp., 210 NLRB 435 (1974). 534 ENGLISH 3ROTIiERS PATTERN AND FOUNDRY thereafter, English had a brief conversation with each at his work station. The parties dispute what was said, but I credit the employees' version. English asked each of the five whether they wanted the Union and each of them said they did. English testified that he may have talked to five employees. Thus, there is no disagreement that a majority of the unit was contacted. I find that a majority was polled. The General Counsel correctly states that there is a duty on an employer to bargain following a demand for recognition. He may demand an election or agree with the Union on some alternative means to resolve the issue. The Supreme Court stated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 594 (1969): Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition re- quest, and he can demand an election with a simple "no comment" to the Union. The Board pointed out, however, that an employer could not refuse to bargain if he knew, through a personal poll for in- stance, that a majority of his employees supported the Union .... In this case, after the two union organizers made a demand for recognition on October 8, English never in- dicated any doubt as to the majority status of the Union, never asked for an election, never made a "no com- ment." Instead, I find that he told the organizers that the employees already had a union there. This is some evi- dence of Respondent's bad faith since there was no union there. However, after Respondent's poll of the afternoon of October 8, there was evidence of majority support for the Union and Respondent cannot now disavow the result of its poll. In Direct Image Corporation of New York. a subsidiary of Direct Image Corporation, 233 NLRB 365 (1972), the Board affirmed a finding that the respondent there was legally bound by the results of the poll and was obligated to comply with the Union's demand for exclusive recognition and bargaining rights. 17 Because Respondent failed to do this, I find that it violated Section 8(a)(5) of the Act. The General Coun- sel has shown majority support for the Union not only as a result of the poll, but also as a result of a majority of employees signing union authorization cards. The polling of employees under the circumstances of this case has a second undesirable result for Respondent, i.e., a violation of Section 8(a)(1) of the Act.'8 In this re- spect, I note that English was no low-level supervisor, but rather, a partner and co-owner of Respondent, and son of the other owner. Moreover, the individual poll was taken after a group meeting, at which English indi- cated in unmistakable terms, his opposition to the Union. His attitude toward the Union transcended the language barrier. I find that Respondent failed to observe the Struksnes guidelines, supra, which might have prevented 17 See also Sullivan Electric Company. 199 NLRB 809. 810 (1972), where the Board said, "An employer cannot disclaim the results [of the poll] simply because he] finds them distasteful." 18 Struksnes Construction Co.. Inc., 165 NLRB 1062 (1967) an 8(a)(1) violation here. That is, Respondent gave no as- surances against reprisal nor did he use a secret ballot.'9 I find also that the purpose of the poll was not to deter- mine the truth of a union's claim of majority-Respond- ent never indicated such doubt and, in any event, would have confirmed it at the first meeting-but rather the purpose was to coerce and intimidate employees in the exercise of their Section 7 rights. Finally, I find that Re- spondent has engaged in other unfair labor practices as found herein and otherwise created a coercive atmos- phere. Thus, the evidence fully supports the finding of an 8(a)(l) violation. After reviewing the record, I am convinced that a bar- gaining order is warranted in this case. First, Respondent threatened to close its plant before it would bargain with the Union. I agree with the General Counsel that this alone is sufficiently serious to warrant a bargaining order. 20 In addition, on October 8, Respondent made promises of increased wages and benefits. This, together with Respondent's other unfair labor practices, has a tendency to undermine majority strength and impede the election processes. t The evidence regarding the union authorization cards and the poll shows employee major- ity support for the Union. 2 2 I agree with the General Counsel that by taking the poll under the circumstances of this case, Respondent waived its right to an NLRB election and is bound by the results of the poll.2 3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow thereof. '" Compare Offner Electroncs, Inc., 127 NLRB 991 (1960). 20 Jimmy-Richard Co.. Inc., 210 NLRB 802, 808 (1974), enfd. 527 F.2d 803 (D.C. Cir. 1975). 2' Stanley M Feil. Inc., 250 NLRB 1154 (1980). citing .VL.R.B. Gissel Packing Co.. Inc., 395 U.S 575, 614 (1966). 12 Cf. Brooks Cameras, Inc., 250 NLRB 820 (1980). 13 Neither party has raised the issue of employee turnover in this case as affecting my recommended bargaining order. Therefore, extensive dis- cussion is not warranted. However, I have carefully read the case of Peo- ples Gas System, Inc. v. NL R.B., 629 F.2d 35 (D.C. Cir 1980), where, because of employee turnover, the court refused to enforce a bargaining order in a refusal-to-bargain case involving a company's alleged good- faith doubt of an incumbent union's majority status Although I am bound by the Board's decision In Peoples Gas, I cannot believe that the D.C Circuit or any other circuit would refuse to enforce a bargaining order in the present case despite the evidence showing in the approxi- mate 10 months' time since the Union's demand, apparently six of the nine unit members are no longer employed by Respondent The basis for this finding is: (1) the lack of evidence showing that any new employees as may have been hired did not desire union representation in the same proportion as the former employees; (2) the necessity to deter employers from committing unfair labor practices like those committed here; (3) the Union, as an innocent party, should not be put to the burden of an elec- tion when they had a right to recognition as of October 8; and (4) other factual differences which distinguish Peoples Gas from the instant case. In conclusion. I note that, initially, the General Counsel attempted to in- clude with this case an issue regarding Respondent's layoff of employees However, insufficient evidence was found during the preliminary investi- gatiln to support this allegation and it was not included In the complaint 535 DECISIONS OF NAITIONAL LABOR RELATIONS BOARD CONCI.USIONS OF LAW 1. Respondent, English Brothers Pattern and Foundry, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse Union Local 6, International Longshore- men's and Warehousemen's Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Anguiano, in interpreting to the assembled employ- ees, acted a an agent of Respondent. 4. By interrogating employees concerning their union activities and sympathies, Respondent violated Section 8(a)(l) of the Act. 5. By threatening to close its plant before it would bar- gain with the Union, Respondent violated Section 8(a)(l) of the Act. 6. By suggesting that benefits would be increased and by soliciting grievances for the purpose of undermining support for the Union, Respondent violated Section 8(a)(1) of the Act. 7. By polling employees for the purpose of undermin- ing support for the Union, Respondent violated Section 8(a)(1) of the Act. 8. By refusing to recognize and bargain with the Union after determining said Union had majority support of Respondent's employees, Respondent violated Section 8(a)(5) of the Act. 9. The following P, M, & W employees of Respondent or their replacements constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Jose Arias Gorge Cardenas Sergio Gonzalez Alfredo Inguanso Jose Inguanso Richardo Ramirez Francisco Reynosa Juan Villalpando Miguel Felix 10. The above-named labor organization is, and has been since October 8, the exclusive bargaining repre- sentative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 11. By failing and refusing to recognize and to bargain with the Union on and after October 824 as the exclusive representative of the employees in the appropriate unit, Respondent has violated Section 8(a)(5) and (1) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. I shall also recommend that, upon request, Respondent be ordered to recognize and bargain with the Union as the exclusive representative of all employees in the stipu- lated, appropriate unit. 24 Peerless of Amernca. Incorporalted, 198 NLRB 982, 984 (1972). Finally, in view of the egregious nature of Respond- ent's unlawful conduct directed at its employees because of their union-related activities, I find that Respondent's conduct demonstrates a general disregard of its employ- ees' fundamental statutory rights and warrants a broad remedial order. See Hickmott Foods, Inc., 242 NLRB 1357 (1979). Upon the foregoing findings of fact, conclusions of law, and the entire record, I hereby issue the following recommended: ORDER2 5 The Respondent, English Brothers Pattern and Found- ry, Hayward, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union activi- ties. (b) Threatening employees with plant closure before Respondent would bargain with the Union. (c) Suggesting that benefits would be increased and so- liciting grievances for the purpose of undermining sup- port for the Union. (d) Polling employees as to their support for the Union, without adequate safeguards and for the purpose of undermining support for the Union. (e) Failing or refusing to recognize and bargain collec- tively with Warehouse Union Local 6, International Longshoremen's and Warehousemen's Union, as the col- lective-bargaining representative of the following-named employees or their replacements in the stipulated P, M, & W unit: Jose Arias Gorge Cardenas Sergio Gonzalez Alfredo Inguanso Jose Inguanso Richardo Ramirez Francisco Reynosa Juan Villalpando Miguel Felix (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which will ef- fectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclu- sive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its business copies of the attached notice marked "Appendix."2 6 Copies of said notice, printed 25 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived fr all purposes. 2h In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. 536 ENGLISH BROTHERS PATTERN AND FOUNDRY both in English and Spanish2 7 on forms provided by the Regional Director for Region 32, after having been duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- 27 Caprkico Refavturanr. Inc., 24q N.RB 68hR5, fn 3 (1980) tices are not altered, defaced, or covered by any other material. In addition, Respondent shall send a copy of said notice by mail to the last known address of each and every member of the stipulated unit, who for any reason is not currently employed at Respondent on either a per- manent or temporary basis. 28 (c) Notify the Regional Director for Region 32. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' I. a it n 2 537