Nissan Research And Development, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1989

296 N.L.R.B. 598 (N.L.R.B. 1989)

598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nissan Research and Development, Inc. and United
Steelworkers of America, AFL-CIO-CLC.
Cases 7-CA-25951 and 7-RC-18022
September 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On January 30, 1987, Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed cross-excep-
tions, a brief in support, and an answering brief.
The General Counsel filed an answering brief to
Respondent's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,' and
conclusions and to adopt the recommended Order.
Respondent Nissan Research and Development
(NRD) is engaged in the testing and development
of motor vehicles. NRD is a subsidiary of Nissan
Motors Corporation (NMC). NRD is in Michigan;
NMC is in California. NMC handles NRD's pay-
roll and benefits policies.
The Union began its organizing campaign at Re-
spondent in spring 1986 after it was contacted by
one of the NRD automotive technicians who was
dissatisfied with numerous policies at NRD. The
Union conducted a meeting at which a majority of
the auto technician employees signed authorization
cards.
The authorization card at issue here is printed on
both sides. The front of the card states, "I hereby
authorize the United Steelworkers of America,
AFL-CIO-CLC to represent me in collective bar-
gaining" and includes spaces for the signer' s name,
address, telephone number, employer, job title, de-
partment, office location, date , and signature. In
the lower right hand corner of the front of the
card, in parentheses, is the word "over."
The back of the card states:
Dear Employee
The purpose of signing this Authorization
Card is to have the United States Government
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
(the National Labor Relations Board) conduct
a Secret Ballot Election for all eligible em-
ployees at your place of work.
The signed Authorization Card is not an ap-
plication for membership in the Office, Techni-
cal and Professional Division of the United
Steelworkers of America.
By Federal Law 30% of all eligible employ-
ees must sign Authorization Cards in order to
have the Government conduct a Secret Ballot
Election to determine if a majority of the eligi-
ble employees at your place of work desire
Union Representation.
The signed Authorization Cards are kept
confidential. Your employer will not know
that you signed an Authorization Card unless
you tell him.
At the time the cards were solicited, the follow-
ing oral representations were made to the employ-
ees by the union proponents: "Signing the card was
in effect to get the ball rolling so they could peti-
tion for an election"; "they needed to have the
cards signed before they could petition to have an
election"; "the purpose of signing the card was just
to have an election started" (this statement was
subsequently contradicted on cross-examination);
and "it would look good if a majority signed cards
so they could petition the Board to hold an elec-
tion." Five of the six unit employees signed the
cards at the union , meeting . The sixth employee
signed at a later time.
After the cards were solicited and signed, the
Union filed a petition seeking to represent NRD's
auto technicians. NMC's personnel relations man-
ager , Morris Duckworth, was alerted by the filing
of the Union's petition to the problems at NRD.
He traveled to Michigan and questioned the NRD
auto technicians concerning what they perceived to
be their problems. After hearing the auto techni-
cians' complaints about low wages and problems
with management, Duckworth indicated that he
would see what could be done about their con-
cerns. It was determined by NMC that the NRD
auto technicians were being paid less than what
similar NMC employees were being paid and it
was decided that the auto technicians' wages
would be raised to a level comparable to that re-
ceived by other similarly situated employees at
NMC. As a result, the NRD auto technicians'
wages were substantially increased (17.8%-36%).
The wage increase appeared in paychecks issued 1
day before the May 16, 1986 election, which the
Union lost.
Respondent contended the wage increases were
justified because it had determined company policy
296 NLRB No. 80
NISSAN RESEARCH & DEVELOPMENT 599
was not being followed at NRD. The administra-
tive law judge rejected Respondent 's arguments
and found the Respondent in violation for soliciting
employee grievances with an implied promise to
remedy them and for granting a wage increase. We
affirm and we also adopt the judge 's finding that
on the basis of these two violations , which were
also timely alleged as objections to the election, the
election should be set aside.
As to the authorization cards, the judge found
that the stated purpose of the cards was to secure
an election and thus negated its use for any other
purpose . As a result the judge found the cards
were invalid to establish that the Union represented
a majority of the employees . As there was no other
showing that the Union represented a majority of
the employees , the judge found it unnecessary to
determine if the Respondent 's unfair labor practices
warranted a bargaining order . We agree with this
result as we also find the authorization card in this
case to be ambiguous . Though the card authorizes
the Union to represent the signer in collective bar-
gaining , the authorization is qualified , if not negat-
ed, by the language on the card (which several of
the signers admittedly read ), stating that "[t]he pur-
pose of signing" the card is to have a Board-con-
ducted election . (Emphasis added .) Given this lan-
guage , we do not agree that this card clearly and
unambiguously authorizes the Union to represent
the employees. Compare John S. Barnes Corp., 180
NLRB 911, 913 (1970), enfd. 77 LRRM 2372 (D.C.
Cir. 1971), cert. denied 404 U.S. 854 (1971), in
which the Board found the cards at issue did not
clearly and unambiguously authorize the union to
represent the signers in collective bargaining be-
cause the authorization was tempered by a refer-
ence to an election.
As we conclude that the card here is ambiguous,
we then look to the card solicitors' solicitations to
determine if their statements removed the ambigui-
ty by making the employees aware that the card
had two clearly defined purposes : ( 1) to authorize
the Union to be their bargaining representative, as
it stated on one side, and/or (2) to obtain an elec-
tion , as it stated on the other . The solicitors' state-
ments do not achieve that end. To the contrary,
the statements only reinforce the card 's stated writ-
ten purpose : sign the card to enable the Union to
set in motion the process leading to a Board-con-
ducted election . 2 In these circumstances, the am-
biguous nature of the card remains , and the fact
that the solicitors ' statements did not expressly
x Two other statements printed on the card, i e., the card is not an ap-
plication for membership and 30 percent of the eligible employees must
sign a card to obtain an election , further support the conclusion that the
card's purpose was electoral and not representational
limit the purpose of signing the card to securing an
election is of no significance . Nor does the fact that
one employee was told by a card solicitor that the
Respondent might "instate" the Union if all six em-
ployees signed cards alter these conclusions. The
statement was made to only one employee and
there is no indication that the other cardsigners had
knowledge of it. Consequently, even if the state-
ment's meaning were clear , it would not establish
that the five other cardsigners were aware that
their signatures authorized the Union to represent
them.
Since the ambiguity inherent in the cards was
not clarified by the card solicitors, the signed cards
do not represent an endorsement of the Union as
the employees ' representative . We also find the
cards to be sufficiently ambiguous to invalidate
them as a basis for the issuance of a bargaining
order under NLRB v. Gissel Packing Co.3
The Supreme Court was careful in Gissel (which
consolidated four cases whose facts involved just
single-purpose cards) to reserve judgment on the
applicability of the Cumberland Shoe4 rule "when
applied to ambiguous , dual-purpose cards."5 The
present case clearly shows the problem of using
ambiguous authorization cards to try to establish
majority status . It cannot be determined from the
content of the cards what the employees intended
when they signed them . It is certainly not clear
that the employees signed the cards with the intent
that the Union represent them, particularly in view
of the oral representations made to them about an
election. We agree with the Fifth Circuit's observa-
tions in NLRB v. J. M. Machinery Corp., 410 F.2d
587, 593 (5th Cir. 1969), that "if unions wish to
perfect their majority claims on the basis of author-
ization cards they should do so with cards which
clearly state their purpose."
The essential difference between our approach
and that of our dissenting colleague is to be found
in the premises from which we start . Member Cra-
craft adopts as an initial premise that the card here
is an unambiguous , dual-purpose card that both un-
conditionally authorizes the Union to be the signa-
tory employee's bargaining representative and con-
stitutes the signatory employee's request for a rep-
resentation election . From that premise , she then
examines the "totality of the circumstances" sur-
rounding the card solicitations to determine wheth-
er the signatory employees were led to believe that
a 395 U S 575 (1969)
4 144 NLRB 1268 (1963)
5 395 U S at 609. The Court suggested that a single-purpose card is
unambiguous because "it states on its face that the signer authorizes the
Union to represent the employee for collective bargaining purposes and
not to seek an election." Id. at 584. Emphasis added
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an election was the sole objective of obtaining
signed cards . Because in her view there was no
such evidence , the cards ' purpose of union authori-
zation remains intact so as to be counted in deter-
mining majority support for a Gissel bargaining
order.
In contrast , we start from the premise that the
card here is ambiguous . It cannot be said with suf-
ficient certainty that the card bestows unqualified
union authorization , coupled with a request for an
election . If anything , we find it more likely that the
card supported only a request for an election, with
the union authorization fulfilling a statutory prereq-
uisite to the holding of the election and thus is only
a conditional grant of bargaining authority to the
Union.6
In the present case there is no evidence to show
that the Union made it clear to the employees, save
possibly one of the six (Montibellar), that the cards
could form the basis for securing representation
without an election . As a result we agree with the
judge that the cards do not establish that the Union
enjoyed majority status and thus are insufficient to
support a bargaining order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nissan Re-
search and Development, Inc., Ann Arbor, Michi-
gan, its officers, agents , successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election held in
Case 7-RC- 18022 be set aside and the case re-
manded to the Regional Director for Region 7 to
conduct a new election at such time as he deems
appropriate.
MEMBER CRACRAFT, dissenting in part.
Years of litigation over bargaining orders devel-
oped the Cumberland Shoe' doctrine , a clear prin-
6 See Levi Strauss & Co, 172 NLRB 732, 733 ( 1968), a case involving a
single-purpose authorization card in which the Board explained why the
language of Sec. 9(c)(1)(A) renders a simple request for a representation
election legally insufficient to trigger the Board 's processes without some
showing that "the employees' wish to be represented by a particular labor
organization , a requirement that entails an expression of intent in all re-
spects the same as that in an authorization card " Thus, as a practical
matter , an ostensibly single -purpose card requesting an election will inevi-
tably be a dual -purpose one , having some reference to the union being
the authorized bargaining agent for the signatory employee . The conun-
drum is whether the signatory employee is understood to have granted
only conditional representational authority for the purpose of holding an
election , or instead to have given unreserved authority (which can be
used to establish the union 's majority status without an election).
i Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd 351 F 2d 917
(6th Cir 1965), reaffirmed in Levi Strauss & Co, 172 NLRB 732 (1968),
both approved in NLRB v. Gissel Packing Co, 395 U.S 575 , 606-608
(1969).
ciple of law with regard to solicitation of signa-
tures on single-purpose2 authorization cards. If the
solicitor orally represents to the signer that the
purpose of signing the single -purpose authorization
card is to obtain an election , the card is still valid.3
However , if the solicitor states that the sole pur-
pose in signing the card is to obtain an election, the
card may not be counted in assessing the union's
majority.4
The law is not as clear with regard to dual-pur-
pose cards .5 The Board has traditionally honored
such cards6 while the circuit courts of appeals
have sometimes disagreed with the Board 's rule.?
8 A single-purpose authorization card may be a union membership
card , an application for membership , a dues-checkoff authorization, or a
card that designates the union as the signer 's bargaining representative C.
Morris , The Developing Labor Law 503-504 (2d ed 1983)
8 See , e g, Montgomery Ward & Co., 288 NLRB 126 at 127 (1988)
(statements that signatures are needed to bring in a union, have a meet-
ing, get information, or get an election are not inconsistent with the
stated representative purpose of the card ), Horizon Air Services, 272
NLRB 243 , 258 fn . 18 (1984), enfd 761 F .2d 22 ( 1st Cir 1985) (cards are
to get an election and have a union representative come to talk to em-
ployees), Windsor Industries , 265 NLRB 1009 , 1020-1021 (1982), enf
denied on other grounds 730 F.2d 860 (2d Cir 1984) (cards will be used
to get enough votes for a closed ballot election)
4 As the Court stated in Gissel•
[E]mployees should be bound by the clear language of what they
sign unless that language is deliberately and clearly canceled by a
union adherent with words calculated to direct the signer to disre-
gard and forget the language above his signature
395 US at 606 See also Burlington Industries v NLRB, 680 F 2d 974
(4th Cir 1982 ) (cards invalid because signers were told they were to
bring in a union for an election purpose only ; cards were just for percent-
age of the representation inside the plant to ask for an election ), Stanley
M. Feil, Inc., 250 NLRB 1154, 1173 (1980) (card of employee Hall signed
on March 10 , 1978, not counted where employee told it would be used
only to achieve an election)
5In fact , there does not appear to be complete agreement regarding
the nature of dual-purpose cards. In both Dresser Industries, 248 NLRB
33 (1980), modified 654 F.2d 944 (4th Cir 1981 ), and World Wide Press,
242 NLRB 346 (1979), the "dual purpose" cards stated they were to so-
licit the privilege of becoming a member (membership) and to designate
the union to represent the employee in all negotiations (authorization) In
C. J. Glasgow Co., 148 NLRB 98 (1964 ), enfd . 356 F 2d 476 (7th Cir
1966), the cards were to "authorize the UAW to represent me" (authori-
zation ) and to be used "in support of the demand of (UAW) for rec-
ognition or for an NLRB election" (recognition/election) 148 NLRB at
104. See also Lenz Co., 153 NLRB 1399 (1965), enf denied in relevant
part 396 F 2d 905 (6th Cir . 1968) (bold type on cards stated their purpose
was to petition for an election (election) while fine print authorized the
union to represent employees (authorization )) See also S Schlossberg
and F Sherman , Organizing and the Law 50-51 (rev ed 1971)
6 See, e g, Dresser Industries, 248 NLRB 33 ( 1980), modified 654 F 2d
944 (4th Cir 1981) (cards were for membership and authorization); Lenz
Co., 153 NLRB 1399 (1965), enf denied in relevant part 396 F2d 905
(6th Cir. 1968) (cards were for the purpose of petitioning the Board for
an election and authorizing the union to represent the employees); C J.
Glasgow Co , 148 NLRB 98 (1964), enfd. 356 F2d 476 (7th Cir. 1966)
(cards were for authorizing the union to represent the employees and for
recognition or an election), Peterson Bras, 144 NLRB 679 (1963), enf
denied in relevant part 342 F. 2d 221 (5th Cir 1965) (authorization and
recognition/election), Winn-Dixie Stores , 143 NLRB 848 , 851 (1963),
enfd 341 F 2d 750 (6th Cir 1965), cert . denied 382 U S 830 ( 1965) (elec-
tion and authorization)
Among those courts that have rejected the use of dual -purpose cards
to support a Gissel bargaining order are the Fifth and Sixth Circuit
Courts of Appeals . See Kawneer Ca v NLRB , 413 F.2d 191 , 194-195 (6th
Cir 1969), ITT Semi-Conductors , 395 F 2d 257 (5th Cir 1968 ); NLRB Y.
Continued
NISSAN RESEARCH & DEVELOPMENT 601
The Supreme Court has not passed on the conflict
among the circuits with regard to dual -purpose
cards.8 However, the Court has cautioned the
Board with regard to single-purpose cards that the
trial examiner 's findings in General Steel Products,
157 NLRB 636 (1966), "represent the limits of the
Cumberland rule's application" and to "guard
against an approach any more rigid than that in
General Steel." In General Steel, the trial examiner
stated:
Accordingly, I reject the Respondent's con-
tention "that if a man is told that his card will
be secret, or will be shown only to the Labor
Board for the purpose of obtaining election,
that this is the absolute equivalent of telling him
that it will be used `only' for purposes of obtain-
ing an election."
With respect to the 97 employees . . . Re-
spondent . . . contends . . . that their cards
should be rejected because each of these em-
ployees was told one or more of the following:
(1) that the card would be used to get an elec-
tion, (2) that he had the right to vote either
way, even though he signed the card , and (3)
that the card would be kept secret and not
shown to anybody except to the Board in
order to get an election . For reasons hereto-
fore explicated , I conclude that these state-
ments, singly or jointly , do not foreclose use
of the cards for the purpose designated on
their face.
157 NLRB at 645. (Emphasis added.)
Initially , as noted above , it appears that there is
no such thing as a "true" dual-purpose card. Au-
thorization cards may reflect one, two, or more
varying purposes . Accordingly, I conclude that
there can be no bright line rule with regard to all
Shelby Mfg Ca, 390 F 2d 595, 596 (6th Cir. 1968), NLRB v Peterson
Bros, 342 F 2d 221 (5th Cir 1965) However, both the District of Colum-
bia and Seventh Circuit Courts of Appeals have accepted dual-purpose
cards in support of bargaining orders See NLRB v. Fosdal Electric, 367
F 2d 784, 787 (7th Cir. 1966), Auto Workers (Aero Corp) Y NLRB, 363
F 2d 702, 704 (D C Cir 1966); NLRB v. C J. Glasgow Co, 356 F 2d 476,
478 (7th Cir. 1966) The Ninth Circuit has also suggested that dual-pur-
pose authorization/election cards may be just as unambiguous as a single-
purpose authorization card . See Sahara Datsun Y NLRB, 811 F 2d 1317,
1321 fn. 3 (1987), cert denied 454 U.S. 835 (1987) ("The cards are unam-
biguous 'dual-purpose ' cards that both request an election and designate
the [union] as the employee 's representative Dual-purpose authorization
cards may be relied on to justify a Gissel order "), NLRB Y Anchorage
Times Publishing Co, 637 F.2d 1359, 1362 fn 2, 1368-1369 (9th Cir 1981)
(counting dual election /authorization cards toward Grssel bargaining
order majority)
" "We need make no decision as to the conflicting approaches used
with regard to dual -purpose cards And we reiterate that nothing we
say here indicates our approval of the Cumberland Shoe rule when ap-
plied to ambiguous , dual-purpose cards " Gissel, 395 U S. at 606, 609
dual-purpose cards due to their varying nature.9 As
noted in Levi Strauss:
The foregoing does not of course imply that
a finding of misrepresentation is confined to
situations where employees are expressly told
in haec verba that the "sole" or "only" purpose
of the cards is to obtain an election. The
Board has never suggested such a mechanistic
application of the foregoing principles , as some
have contended . The Board looks to substance
rather than to form . It is not the use or nonuse
of certain key or "magic" words that is con-
trolling, but whether or not the totality of cir-
cumstances surrounding the card solicitation is
such as to add up to an assurance to the card-
signer that his card will be used for no pur-
pose other than to help get an election.
172 NLRB at 733 fn . 7. By analogy , I believe it is
proper to look at the totality of the circumstances
in evaluating dual-purpose cards . Application of a
totality of the circumstances test herein leads me to
conclude that the cards should be counted for pur-
poses of granting a Gissel bargaining order.
The majority opinion fully sets forth the lan-
guage utilized on the cards . The front of the card
stated that it was an authorization for the Union to
represent the employee in collective bargaining.
The employee signed on the front and put his ad-
dress, telephone number, employer , job title, de-
partment, office location , and date on the front as
well. In the lower right-hand corner of the front of
the cards the word "over" appeared in parentheses.
The back of the card stated that "the" purpose of
the authorization was to have an election , that the
card was not an application for membership, that
Federal law required a 30-percent showing of in-
terest , and that the card would be kept confiden-
tial. Three of the six employees stated affirmatively
that they did not read the back of the card while a
fourth employee stated that he could not recall
reading the back of the card.10
9 Perhaps the best resolution to the problems raised regarding dual-pur-
pose cards is to affirmatively state that henceforth we will use only
single-purpose cards to assess the union 's majority for purposes of Gissel
bargaining would be willing to adopt such a rule , which would be pro-
spectively applied to all cases in which cards were thereafter solicited.
10 In adopting the rule that "employees should be bound by the clear
language of what they sign unless that language is deliberately and clear-
ly cancelled ," the Supreme Court cautioned that the subjective motiva-
tions of employees in signing authorization cards involved "an endless
and unreliable inquiry " due to the tendency "many months after a card
drive and in response to questions by company counsel , to give testimony
damaging to the union , particularly where" the company has in the
meantime threatened employees in violation of Sec . 8(a)(1). Gissel, 395
U.S at 608 Consistent with this principle , an employee 's testimony that
he or she failed to read a card does not necessarily invalidate the Board's
reliance on the card as evidence of majority support See , e g , Ona Corp.
Continued
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the totality of the circumstances, I
would not find that these cards were ambiguous.
The statements on the back of the card were addi-
tionally repeated orally to employees. None of the
statements on the back of the card nor any of the
oral representations indicated that the only purpose
in signing the card was to have an election." Be-
cause the back of the cards only stated what we
have held permissible to state orally, I would count
the cards as evidence of majority support . I believe
that this result is consistent with the totality of the
circumstances herein . The cards , although dual
purpose , are not ambiguous . It is clear that in sign-
ing the cards the signers authorized the Union to
act as their collective-bargaining agent rather than
solely requesting an election.
Like my colleagues , I would prefer that unions
use single-purpose authorization cards . Moreover,
it appears that the Supreme Court signaled the ad-
visability of such a practice in its references to
dual-purpose cards in Gissel.12 However, in light of
existing precedent that has based bargaining orders
on dual-purpose cards , ' s and based on the totality
261 NLRB 1378, 1410 (1982), enfd . 729 F2d 713 ( 11th Cir 1985) How-
ever, such evidence is relevant in assessing the totality of the circum.
stances Keystone Pretzel Bakery, 242 NLRB 492, 493-494 (1979), enfd.
696 F.2d 257 (3d Cir 1982) ("One factor which the Board has consid-
ered in the 'totality of the circumstances ' is whether the employees read
the cards.") The affirmative evidence that three of the employees did not
read the back of their cards and that a fourth could not recall reading the
back of his card may not be disregarded . I find this evidence relevant
under the totality of the circumstances herein and I would not discard it
as subjective motivational evidence It does not have the inherent un-
trustworthiness of a statement that attempts to disavow union activity fol-
lowing the employer's commission of serious unfair labor practices. See
Gissel, 395 U S at 608 citing Sheinkman , Recognition of Unions Through
Authorization Cards, 3 Ga. L. Rev. 319 ( 1969).
1 ' John S. Barnes Corp., 180 NLRB 911 (1970), enfd per curiam 77
LRRM 2372 (D.C. Cir 1971), cert denied 404 U.S. 854 (1971), relied on
by my colleagues , is distinguishable . In that case , seven cards were invali-
dated because they stated at the top of the card , "In order that the Na-
tional Labor Relations Board may conduct a secret ballot election, one-
third of the employees must sign and return this card If you care about
your conditions , don't delay Sign today " An authorization to represent
the employee in collective bargaining followed - "I hereby authorize the
[Union] to represent me in collective bargaining on- wages and working
conditions " and then another reference to an election was made. "It is
my understanding that I will be invited to join should the union be elect-
ed to represent me." The Board held that this language did not clearly
and unambiguously authorize the Union to represent the employees. In
my view , this is not the correct test to apply in determining whether a
valid authorization exists. In any event , the cards used herein are suffi-
ciently different Accordingly , I do not find Barnes useful in determining
the outcome herein
iz 395 U.S. at 606, 609.
"See, e.g., C. J. Glasgow Co., 148 NLRB 98 (1964), enfd 356 F.2d
476 (7th Cir. 1966) (cards were for authorization and recognition or an
election ), Winn-Dixie Stores, 143 NLRB 848 , 851 (1963), enfd 341 F.2d
750 (6th Cir 1965), cert denied 382 U S 830 ( 1965) (cards stated that
the signer "authorize [d the union] to represent me and in my behalf peti-
tion the National Labor Relations Board for an election to determine bar-
gaining rights" relied on ), Lenz Co., 153 NLRB 1399 (1965), enf. denied
in relevant part 396 F. 2d 905 (6th Cir. 1968) (election/authorization).
These cases were not overruled in Gissel and I would not depart from
their holdings at this time
of the circumstances herein including the employ-
ees' failure to read the back of the cards, I would
count the cards as evidence of majority support.
Neither the judge nor my colleagues has been
compelled to examine the underlying unfair labor
practices to determine whether a bargaining order
is warranted . I agree with my colleagues ' finding
that the Respondent violated the Act and engaged
in objectionable conduct by soliciting and promis-
ing to remedy grievances and substantially increas-
ing unit members ' wages 1 day before the Board-
conducted election . Because these unfair labor
practices affected every employee in the unit, were
committed by the highest management officials
and, particularly with respect to the substantial
wage increase , were of a nature that the effects are
difficult, if not impossible , to dispel , I would issue a
bargaining order rather than direct a second elec-
tion.14
14 See, e g , Honolulu Sporting Goods Co., 239 NLRB 1277 , 1282-1283
( 1979), enfd 620 F.2d 310 (9th Cir. 1980).
Ellen Rosenthal, Esq., for the General Counsel.
Jerome C. Byrne, Esq. (Gibson, Dunn & Crutcher), of Los
Angeles, California , for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
This case was heard at.Detroit , Michigan, on 3 and 4
November 19861 pursuant to a charge filed in Case 7-
CA-25951 on 20 June by the United Steelworkers of
America, AFL-CIO-CLC (the Union) and a complaint
issued on 5 August.
The complaint alleges Nissan Research and Develop-
ment, Inc. (the Respondent) violated Section 8(a)(1) of
the National Labor Relations Act (the Act) by interfer-
ing with , restraining, and coercing its employees regard-
ing their union activities and in order to undermine the
representative status of the Union among the unit em-
ployees and to render an uncoerced rerun election im-
possible by soliciting grievances of unit employees with
the implied promise that certain of those grievances in-
cluding grievances about low wages would be favorably
resolved ; advised unit employees they would receive a
substantial wage increase; distributed paychecks to unit
employees the day before a representation election which
contained wage increases ranging from 17 .8 percent to
36 percent ; and refused to recognize the Union as the ex-
clusive bargaining representative of the unit employees.
The complaint further alleges that Respondent's unfair
labor practices are so serious and substantial in character
that the possibility of erasing the effects of those unfair
labor practices and of conducting a fair rerun election by
the use of traditional remedies is slight, and the employ-
i All dates referred to are in 1986 unless otherwise stated
NISSAN RESEARCH & DEVELOPMENT 603
ees' sentiments regarding representation , having been ex-
pressed through authorization cards, would , on balance,
be protected better by issuance of a bargaining order
than by traditional remedies alone.
The Respondent in its answer dated 12 August and
amended at the hearing admits it informed unit employ-
ees they would receive a wage increase effective on or
about 5 May and that paychecks incorporating such
wage increases ranging from 17.8 percent to 36 percent
were distributed to those employees on 15 or 16 May.
However, it specifically denies having violated the Act
as alleged.
The issues involved in Case 7-CA-25951 are whether
the Respondent unlawfully solicited employees ' griev-
ances with the implied promise they would be resolved;
announced and granted employees wage increases; and
refused to recognize the Union as the exclusive repre-
sentative of the unit employees thereby violating Section
8(a)(1) of the Act; and whether a remedial bargaining
order is warranted.
Consolidated for hearing with the complaint in Case
7-CA-25951 is the resolution of objections to the elec-
tion conducted in Case 7-RC-18022. This election by
secret ballot was conducted on 16 May based upon a pe-
tition filed by the Union on 4 April and pursuant to a
Stipulation for Certification Upon Consent Election exe-
cuted by the parties and approved by the Regional Di-
rector for Region 7 on 30 April among the Respondent's
employees in the appropriate collective-bargaining unit
described as follows:
All full-time and regular part-time auto mechanic
technicians and auto mechanic technician trainees
employed by the Respondent at its facility located
at 3995 Research Park Drive, Ann Arbor, Michi-
gan; but excluding office clerical employees , profes-
sional employees , guards and supervisors as defined
in the Act, and all other employees.
The tally of ballots reflects that out of approximately
six eligible voters, two cast votes for the Union and four
cast votes against the Union.
On 23 May the Union timely filed the following objec-
tions to the conduct of the election:
1. The Company informed employees just two
weeks prior to the election that it was increasing
their wages by $2.00 to $3.00 per hour.
2. The employees received this pay increase in
their checks received May 15, 1986, one day prior
to the election.
The Regional Director for Region 7 concluded that
these objections raised issues of substantial and material
facts including potential credibility resolutions and or-
dered that a hearing be held to resolve them.
The issues involved in Case 7-RC-18022 are whether
these objections have merit and warrant setting aside the
election.
On the entire record in this case2 and from my obser-
vations of the witnesses and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent" I make the following4
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Delaware corporation , with its principal
office and place of business located at Ann Arbor,
Michigan , is engaged in the business of the testing and
development of motor vehicles . During 1985, a repre-
sentative period , Respondent in the course of its oper-
ations derived gross revenues in excess of $50,000 and it
purchased and received at its Ann Arbor, Michigan facil-
ity tools, test equipment , office supplies , and other goods
and materials , valued in excess of $50,000, directly from
points located outside the State of Michigan.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is located at Ann Arbor , Michigan,
where it is engaged in the testing and development of
motor vehicles . It employs approximately 40 employees.
Included among its officials and supervisory personnel
are Vice President Yamagata , Vice President Nishigi,
Vice President Nagahara, Corporate Administration
Manager Ralph Grambush ,5 and Executive Vice Presi-
dent Maeda.6
The Respondent is 80 -percent owned 7 by Nissan
Motor Corporation in U.S.A. (NMC). NMC is an import
car distribution company and has its headquarters locat-
ed at Carson , California , which is a suburb of Los Ange-
les, California. It is the channel through which Nissan in
Japan sends automobiles and automobile parts to the
United States . It has approximately 13 regions , 11 distri-
bution centers, and 8 ports and employs about 2200 em-
ployees throughout the United States . Included among
NMC's officials and supervisory personnel at its head-
quarters are Vice President of Administration K. Ogura,
Vice President of Human Resources in Administration
Ronald Cabibi ,8 Corporate Personnel Relations Manager
2 The General Counsel 's unopposed motion dated 30 December 1986
to correct the transcript is granted
a The Union did not submit a brief
Unless otherwise indicated the findings are based upon the pleadings,
admissions , stipulations and undisputed evidence contained in the record
which I credit
Grambush assumed this position on 7 July
These five individuals are supervisors under the Act
7 The other 20 percent is owned by Nissan Motor Corporation Limited
in Japan (Nissan)
8 During the spring of 1986 Cabibi held the position of director of em-
ployee relations
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Morris Duckworth , and Corporate Personnel Adminis-
tration Manager Robert Walpole.9
The president of NMC is also the president of the Re-
spondent and the vice president of finance for NMC is a
member of the board of directors of the Respondent.
The work product of the Respondent goes back to
Nissan in Japan to which the Respondent functionally re-
ports.
The relationship between NMC and the Respondent
besides having the common ownership and officials men-
tioned includes NMC handling the payroll and pay-
checks at its corporate office for the Respondent. NMC
Personnel Relations Manager Duckworth also contends
NMC establishes all of the benefits including pay for the
Respondent 's personnel and the policies by which it op-
erates.10
B. The Unit and the Union's Alleged Majority Status
The Union began an organizing campaign among the
Respondent 's employees in the spring of 1986. Frank
Slavik, who is employed by the Respondent as an auto-
motive technician , testified he initially contacted Union
Organizer Joe Vereb and arranged a meeting between
Union Organizers Vereb and Steve Kelik and the Re-
spondent 's automotive technicians . The reason for ar-
ranging the meeting as described by Slavik was the auto-
motive technicians were very dissatisfied and saw no
other way of getting management to listen to their com-
plaints . Their principal complaint was low wages.
The first union meeting was held on 28 March. The
Respondent 's employees who attended this meeting be-
sides Slavik were automotive technicians Brian Monti-
beller, Michael Kassa , Robert Bolhuis, and automotive
technician trainee Thomas Flanagan . Respresenting the
Union were Organizers Vereb and Kelik. According to
Salvik at the meeting the union representatives gave
them union authorization cards to sign and told them
they needed the majority of the cards signed to file a pe-
tition . They said the purpose of petitioning for an elec-
tion was to have the Union represent them as a bargain-
ing unit . They also said the cards would be kept confi-
dential and would not be given to the company.
Slavik stated at the meeting he read and then signed a
union authorization card and he observed the other em-
ployees present at the meeting also read and sign union
authorization cards which he identified. These cards
were then given to the Union's representatives.
The union authorization cards signed which have
"Office, Technical and Professional Employees" at the
top are captioned on the front side immediately above
the space where the employee signs and dates the card as
follows:
I Hereby Authorize The United Steelworkers of
America, AFL-CIO-CLC To Represent Me In
Collective Bargaining.
The back of the authorization card is captioned as fol-
lows:
9 Those four individuals are agents of the Respondent.
10 None of the Respondent's officials testified
The purpose of signing this Authorization Card is
to have the United States Government (the Nation-
al Labor Relations Board ) conduct a Secret Ballot
Election for all eligible employees at your place of
work.
The signed Authorization Card is not an applica-
tion for membership in the Office, Technical and
Professional Division of the United Steelworkers of
America.
By Federal Law 30 percent of all eligible em-
ployees must sign Authorization Cards in order to
have the Government conduct a Secret Ballot Elec-
tion to determine if a majority of the eligible em-
ployees at your place of work desire Union Repre-
sentation.
The signed Authorization Cards are kept confi-
dential . Your employer will not know that you
signed an Authorization Card unless you tell him.
The other employees that attended the union meeting
Thomas Flanagan , Michael Kassa , Robert Bolhuis, and
Brian Montibeller, who were presented as witnesses by
the Respondent , all acknowledged signing union authori-
zation cards at the meeting which they identified. Both
Flanagan and Kassa denied and Bolhuis did not recall
reading the back side of the authorization cards they
signed . These employees also testified about what they
were told by the union representatives at the meeting
about signing the authorization cards . Kassa said they
were told that signing the cards was in effect to get the
ball rolling so they could petition for an election and the
cards were necessary to start the procedure . Bolhuis
stated they were told they needed to have the cards
signed before they could petition to have an election.
Flanagan on direct examination stated they were told the
purpose of signing the card was just to have an election
started. However, under cross-examination , Flanagan,
who acknowledged having read the front of his authori-
zation card before he signed it, contradicted his earlier
testimony by first specifically denying the union repre-
sentatives said signing the cards was just to get an elec-
tion and then claimed he did not remember their having
said it.
Montibeller stated they were told they needed to sign
the cards and it would look good if a majority signed
cards so they could petition the Board to hold an elec-
tion . However, he further stated they were told if they
could get a majority or all six employees to sign cards it
was possible the Company would not even fight and
would just instate the Union there . Montibeller also said
they were told the Union would petition for an election
so they would be recognized as the representative.
Flanagan and Kassa also said they were told nobody
would see the cards and Bolhuis and Montibeller said
they were told the Company would not know who
signed them.
According to Montibeller there was also something
said in the meeting about the vote could be withdrawn if
the Union or they decided to. Montibeller testified Orga-
nizer Vereb gave an example of a Honda plant in Ohio
where they had petitioned for a vote and the company
had taken its own survey and after it was decided it was
NISSAN RESEARCH & DEVELOPMENT
not going to pass the election was withdrawn. This ex-
ample was given by Vereb because the employees all had
fears and worries about what was going to happen after
they signed the cards.
Chuck Dorais, another automotive technician em-
ployed by the Respondent and presented as a witness by
the Respondent, testified he did not attend the union
meeting but signed a union authorization card. Dorais
identified a card dated 7 April as the card he signed.
Dorian stated Frank Slavik gave him the card to sign,
which he denied reading , and told him the card would
take forth in getting them a vote for the election.
Brian Montibeller testified that shortly before the elec-
tion was held but after the election notices were posted
at the Respondent , which was between 6 and 8 May, he
asked Frank Slavik to call and have the election can-
celed . However, Slavik reported back the vote would go
on and would not be withdrawn. While Montibeller
claimed he had discussions with Bolhuis , Kassa, or
Flanagan before asking Slavik they did not testify about
it and Chuck Dorais denied he was involved in trying to
get the election cancelled . Under cross-examination
Montibeller acknowledged he made this request during
the same period of time he was told about a raise he was
getting . I t Frank Slavik acknowledged Montibeller asked
him to see if they could get the election canceled. After
making several unsuccessful attempts to contact Organiz-
er Vereb who was not in his office , Slavik informed
Montibeller he was unable to get Vereb and they could
not do it right then. According to Slavik none of the
other employees who were also present when he dis-
cussed this with Montibeller said anything to him about
cancelling the election and the issue was not raised at a
union meeting held the day before the election.
On 4 April the Union filed a petition seeking to repre-
sent Respondent 's auto mechanic technicians . On the pe-
tition it was indicated a request for recognition as bar-
gaining representative was made on 31 March t z and in
the space provided for showing the date the employer
declined recognition or if no reply has been received, the
words "Petition to serve as notice" had been inserted.
Thereafter the Union and the Respondent executed a
Stipulation for Certification Upon Consent Election ap-
proved by the Regional Director for Region 7 on 30
April. The unit contained in the stipulation is described
as follows:
All full-time and regular part-time auto mechanic
technicians and auto mechanic technician trainees
employed by the Respondent at its facility located
at 3995 Research Park Drive , Ann Arbor, Michi-
gan; but excluding office clerical employees , profes-
sional employees, guards and supervisors as defined
in the Act, and all other employees.
The Respondent admits and I find the above-described
unit constitutes a unit appropriate for purposes of collec-
" The announcement of this wage increase as discussed infra occurred
on or about 5 May.
is No evidence was proffered to show such a request for recognition
was made.
605
tive bargaining within the meaning of Section 9(b) of the
Act.
The election was held on 16 May which the Union
lost by a vote of 2 to 4.
The unit at all times material herein was comprised of
automotive technicians Frank Slavik , Chuck Dorais,
Brian Montibeller , Robert Bolhuis , and Michael Kassa
and automotive technician trainee Thomas Flanagan who
became an automotive technician on or about 5 May.
C. Soliciting Employees ' Grievances
Frank Slavik testified the second week in April he ob-
served NMC Corporate Personnel Relations Manager
Duckworth at Respondent 's garage talking to employees
Michael Kassa and Chuck Dorais . Slavik joined in the
conversation which was mostly about their jobs . Slavik
also said there may have been a couple of complaints
about Respondent 's Vice President Yamagata and wages.
This was the first time Slavik had seen Duckworth at
Respondent 's facility.
The following day Slavik testified the staff engineer in-
formed the six automotive technicians to report to the
conference room which they did. Duckworth was
present . Slavik also believed Executive Vice President
Maeda'3 was there . Slavik stated Duckworth introduced
himself and asked them to air their complaints. Duck-
worth also said he had heard there were some problems
and he would like to know why. The employees then
brought up some of their complaints . The main com-
plaint was about the wages which everybody was very
dissatisfied with. There were also several complaints
about Vice President Yamagata . They mentioned they
had complained about them before and asked why no
one ever listened or paid attention that they were not
being paid more . Duckworth 's response was California
believed Japan was following the management at the Re-
spondent and Japan believed Los Angeles was following
them and therefore no one was and no one was aware of
their problem . Duckworth mentioned several of the
Nissan facilities were unionized and as a rule they either
received the same or slightly less wages . He also men-
tioned he would be their negotiator if they went union
and he was a tough negotiator . Slavik asked Duckworth
why he came there whereupon Duckworth replied he
had heard there were some problems and someone had
called the Union and he came to see what problems
caused that.
Duckworth also said that he had taken a quick look at
their wages and he thought they were a little bit low and
he would make recommendations that their wages be
brought up to corporate standards. When Slavik asked
Duckworth whether he had the authority to make sure
his recommendations were followed his response was he
did not have the authority but his boss did and his boss
generally followed his recommendations.
According to Slavik when employees asked questions
relating to company policies Duckworth said he did not
know the answer and it would be best for someone who
had expertise in the area to answer questions.
13 Maeda did not testify.
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Slavik denied that prior to Duckworth's visit anyone
from NMC had ever come to the Respondent and asked
employees about their problems.
Corporate Personnel Relations Manager Duckworth
acknowledged visiting the Respondent's facility on 16
April and talking to some of the automotive technicians
that day. He also acknowledged but at a later meeting
telling the employees if the Union was successful he
would probably be the negotiator and they were hard
negotiators. However he denied recalling having a meet-
ing with all the technicians the following day as de-
scribed by Slavik.
Duckworth stated he first learned of a problem at the
Respondent about 14 April when Vice President Cabibi
informed him he had received the Union's petition from
Vice President Ogura. Cabibi directed him to go to Re-
spondent's facility and assist the Japanese staff with the
petition to ensure all of their policies and practices were
being adhered to in the course of those types of matters.
Duckworth, who denied having much knowledge of the
Respondent at the time or having visited there before,
stated Cabibi, pursuant to his inquiry, informed him the
Respondent followed MNC's policies and procedures.
Vice President Cabibi, who denied being aware at the
time there were any automotive technicians employed at
the Respondent, corroborated Duckworth's testimony
about those instructions.
Duckworth denied in trying to find out whether the
policies had been followed it was his goal to determine
what might have prompted the filing of the petition.
Upon his arrival at Respondent's facility on 16 April
Duckworth attempted to talk to Vice Presidents Yama-
gata and Nishigi but had problems communicating with
them because of language barriers. He then talked to
Judy Miles, who was the administrative assistant to Ex-
ecutive Vice President Maeda, to an engineer named
Humay and to two secretaries. Both Miles and Humay
informed Duckworth the automotive technicians were
unhappy about their pay which was not in accord with
other Nissan facilities . Based upon his conversations with
Miles, Humay, and the secretaries, none of whom testi-
fied, Duckworth concluded Nissan policies and proce-
dures were not being followed at Respondent's facility.
He decided those factors necessary to resolve the turmoil
at Respondent's facility which he would recommend
were there had to be a total disclosure of corporate
policy; someone had to be assigned there who under-
stood the policies and could enforce them; and the bene-
fits and wages had to be dramatically improved bringing
them into line with the standard pay policy throughout
the United States which all of their people followed
unless there was a collective-bargaining agreement cov-
ering them. His recommendations would also include an
administrative manager being placed there and Vice
President Yamagata either being removed or only being
responsible for the Japanese nationals assigned there.
Duckworth stated that afternoon he talked to the auto-
motive technicians after -a secretary' 4 told him they
wanted to speak to him. While Duckworth claimed at
the hearing he had concerns about talking to them he
stated Nissan had a policy' 5 of honoring employees' re-
quests to talk about problems.
According to Duckworth the number of automotive
technicians present when he talked to them that day
varied from two to three or four and they would come
and go . He denied any other company officials were
present. His version was he introduced himself and asked
them what they did. While talking several of them asked
questions . Those questions included what Duckworth's
responsibilities were and whether the responsibilities of
the technicians in Los Angeles were comparable or simi-
lar to theirs. One employee mentioned he had been on
probation about 2 years and asked what the company
policy was on probation which Duckworth explained.
Two employees mentioned they had been promised a
pay raise before quitting their jobs and coming to work
for the Respondent but after they started work they
were told the Respondent could not pay them what they
were promised . Another employee said he had been
denied the right to lease a vehicle by Vice President Ya-
magata because he already had two cars in his family.
One employee said when he asked Yamagata for a pay
raise Yamagata asked him why he did not put his wife to
work . Another employee mentioned he did not under-
stand the health and insurance policies and had been un-
successful in having it explained. When one of the em-
ployees asked him was he there because of the petition
his response was that was a stimulus for his coming but
he was there now to listen to the concerns they had ex-
pressed to him and to ensure Nissan 's policy for which
he was responsible was adhered to by the Respondent.
Duckworth testified he told them he would take their
concerns and those of the office staff back. He also told
one employee , who asked if he had the authority to im-
plement such changes, that he would be coming back.
There was also conversation about them wanting him to
come back's and explain some of those things because
they did not have a lot of information.
During the conversation Duckworth said he was asked
why the technicians in Los Angeles made more than
they did and they said had been told it was based upon
economics in the Los Angeles area . Duckworth denied it
and said they had a standard rate . When they asked
whether the standard rate applied to Nissan Motor Man-
ufacturing Corporation in Smyrna , Tennessee , which was
substantially higher than that at the Respondent, he told
them it had its own policies and he was not familiar with
their pay structure.
Under cross-examination Duckworth denied he started
off these conversations with the automotive technicians
by telling them he was there to find out what was going
on, to explain policies, to make sure they were being
properly implemented and that the employees then start-
ed asking him questions . However, upon being confront-
ed with an affidavit he had given, which was prepared
by an attorney representing the Respondent and submit-
14 The secretary was not identified and did not testify
75 This policy was not further described or identified
16 Duckworth could not identify who asked him to return
NISSAN RESEARCH & DEVELOPMENT 607
ted to the Board, Duckworth admitted making those
same statements in his affidavit. Although he stated such
statements were true he still denied the conversations
were started that way and claimed such statements in his
affidavit were an attempt to be concise as to the general
nature of the conversations covered.
He also acknowledged asking them what they liked
and disliked about working for Nissan and telling them
he was there to ask them what their concerns were and
to resolve them if possible. Duckworth acknowledged a
significant complaint raised by the automotive techni-
cians was about their wage rates and said he informed
them a group in his department would evaluate their
wage rates and make adjustments to cover any deficien-
cies. Duckworth also told them all of their complaints in-
cluding those on wages would be looked into.
Duckworth further said he told the technicians he
planned to make another visit there in a week or two
which he had been planning to do all along.
I credit the testimony of Frank Slavik rather than Cor-
porate Personnel Relations Manager Duckworth con-
cerning the statements Duckworth made to the automo-
tive technicians. Apart from my observations of the wit-
nesses in discrediting Duckworth his testimony was both
contradictory and implausible. Having credited Slavik I
find about the middle of April Corporate Personnel Re-
lations Manager Duckworth solicited the grievances of
the automotive technicians and by telling them he would
recommend their low wages be brought up to corporate
standards and his recommendations were generally fol-
lowed impliedly promised them their grievances about
low wages would be favorably resolved. This finding is
also consistent with Duckworth's admissions he told the
automotive technicians he was there to ask them what
their concerns were and to resolve them if possible and
his own conclusions their wages were low.
The following day Duckworth stated he informed Ex-
ecutive Vice President Maeda, who he said was not
there the previous day, about his findings and the recom-
mendations he planned to make and to discuss with Vice
President Cabibi and Vice President Ogura. Maeda
agreed an American administrator had to be employed
and Nissan's policies had to be enforced. Maeda placed
part of the blame on Vice President Yamagata's inability
to communicate in English and his following some very
traditional Japanese-type patterns or programs in em-
ployee relations.
About 21 April after his return to California Duck-
worth stated he reported to Cabibi and Ogura on his
findings and recommendations for the Respondent's facil-
ity. These recommendations were to have an American
administrative manager ; do an immediate evaluation and
survey of the salaries which he knew were low; to
ensure its policies were being enforced; the policies and
procedures had to be distributed on a wider basis; and
that specific guidelines had to be followed on discipline
and the way to handle employees. He requested Cabibi
to direct the study on salaries because he did not have
direct authority over them himself.
Duckworth stated upon discussing the pay increase
with Cabibi and Ogura which he said would probably be
substantial, Cabibi was asked if they granted a pay raise
would it not be construed as an unfair labor practice.
Cabibi however said it would be wrong if they did noth-
ing and since the policy had not been followed to contin-
ue it would be morally wrong. Cabibi said they should
do what was right despite the fact a petition had been
filed and that was the course they would follow and was
what should have been followed all along . Cabibi men-
tioned people had already been injured and to withhold
what they deserved would be improper.
Vice President Cabibi testified he concluded from
Duckworth's report about Respondent not following
policies that the primary problem was one of communi-
cation and cultural differences and Respondent's Vice
President Yamagata really did not understand their
system and there was a need for some assistance in that
area.
Cabibi, who claimed he was surprised to learn of the
pay problems reported by Duckworth, stated he went to
NMC's compensation department to investigate the prob-
lem where he also found a lack of communication. The
understanding of Corporate Personnel Manager Robert
Walpole," who was responsible for handling the day-to-
day administration of compensation and benefits, and
Manager of Compensation Fujita,18 both of whom were
under Cabibi, was they had no authority to and were not
to enforce or monitor NMC's policies over the Respond-
ent. They had merely taken the recommendations of Re-
spondent's officials on wage increases and had processed
them through the payroll without evaluating their validi-
ty or the conformance to policy. Cabibi stated he was
surprised to learn this since up until that time it was his
understanding NMC had monitored the practices of Re-
spondent's management as to NMC's policies.
According to Cabibi, Gaffeny, who is no longer em-
ployed by NMC, had previously coordinated the pro-
gram for him and when Gaffeny left, this responsibility
of making sure NMC's policies and programs were com-
municated to the Respondent fell to Walpole and Fujita.
However, Cabibi denied recalling whether he specifically
assigned them to do this and said he did not clearly com-
municate what he wanted them to do.
Under cross-examination while Cabibi acknowledged
NMC's personnel policy booklet provided that a commit-
tee on which he was a member was responsible for con-
ducting periodic audits and reviews of the compensation
program to ensure compliance with policy and budget
guidelines he denied having done a periodic review of
the Respondent.
Cabibi testified he then directed Fujita to make a study
on Respondent's employees including the six automotive
technicians to find out where those employees should be
if NMC policies, procedures, and directions had been fol-
lowed in accordance with company policy.
Cabibi acknowledged having discussed the petition
with Duckworth and others and he determined they
should correct any deficiency as soon as possible regard-
less of what other consequences might be involved.
17 According to Duckworth, Walpole had previously visited the Re-
spondent 's facility.
18 Neither Walpole nor Fujita testified
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cabibi stated each 6 months NMC's compensation de-
partment sends out documents entitled "Nonexempt
Salary Merit Review" to all vice presidents , directors
and managers who have nonexempt personnel reporting
to them . These documents represent directions, imple-
mentation schedules , charts of rates and recommended
rate increases, and target percentages for the amount of
merit increases . The effective dates of these reviews are
1 April and 1 October of each year at which time the
wage increases are given . Under NMC's policies the
automotive technicians covered are hired at a standard
minimum and move up under an automatic progression
for three steps to midrange , provided they perform satis-
factorily, after which they go to a merit system. The
automotive technicians in addition to receiving the auto-
matic raises in each of the three steps also receive the 2-
to 3-percent cost-of-living raises . Under NMC's system
all departments to whom these documents are sent are
required to report back to NMC in writing to Walpole
and Fujita on salary adjustments for their employees
showing their job classifications and recommended in-
creases . This program is monitored by NMC which has
to approve the wage increases and Fujita has to sign an
approval form stating the employment relation depart-
ment has reviewed the recommendations as approved
and has authorized payroll to put it into their system and
make the payment to the employees.
Both Cabibi and Duckworth stated Fujita informed
them such documents had systematically been sent to the
Respondent and its predecessor company ERI from
which it took over in 1983. Duckworth also said Re-
spondent 's vice president, Yamagata, had told him he
had received the documents and Cabibi said when he vis-
ited Respondent 's facility on 28 April Yamagata had the
documents for the last several years on file.
Cabibi acknowledged NMC had two subsidiaries locat-
ed in the United States which were not covered by
NMC's policies . They were Nissan Motor Manufacturing
Corporation located at Smyrna , Tennessee , and Nissan
Design International . Cabibi stated both of them report-
ed to Nissan and gave as the reason the Smyrna plant
was not covered was because it was a manufacturing
plant and under Japanese policy and culture such facili-
ties exercise total self-control over their operations.
Frank Slavik testified he attended a second meeting
held a couple of weeks after the first meeting. Present at
this meeting were Corporate Personnel Relations Manag-
er Duckworth, Vice President Cabibi, and all of the
hourly employees including the clerical employees and
the six automotive technicians.
Slavik stated Duckworth introduced Cabibi who ex-
plained his speciality was benefits and company policy
and said he was there to field questions about the policy.
The employees then raised questions . There was a dis-
cussion about whether a car could be rented and for how
long and while Slavik stated Cabibi said there would be
changes he did not remember his exact response. Com-
plaints were raised about wages which was the major
issue . They were told an American administrator would
be hired to administer to the American staff and make
sure policies were followed and they would try and pro-
mote someone from within the Company who under-
stood policies so there would be less of a problem trying
to train or teach someone Nissan's policies . They were
also told it would be recommended they follow corpo-
rate guidelines and they were furnished a handbook at
the meeting.
Both Duckworth and Cabibi stated they along with
Vice President Ogura met with Respondent's clerical
employees and automotive technicians on 28 April. Ac-
cording to Duckworth the reason Cabibi came was be-
cause the automotive technicians had asked for someone
who could clarify things in the compensation area.
Duckworth testified Cabibi told them he understood
they had expressed some concern and had asked them to
come speak to them. After Cabibi explained his and
Ogura's responsibilities employees began asking ques-
tions . One of the first questions asked was whether the
Respondent followed policies from Japan or NMC. Cabi-
bi's response was all of Respondent 's functional work
went back to Japan but they were the responsibility of
NMC and therefore their policies were applicable and
they were to follow them there . The employees also
raised questions about policies relating to pay, benefits,
car rental , discipline , and vacation all of which was cov-
ered . Cabibi answered their questions and told them they
were doing things that were wrong and were in conflict
of the policy. Cabibi told them some of the areas they
asked about would be looked into or studied.
The technicians asked a lot of questions about pay,
benefits , and policy including why they were not at the
midrange of the progression and why their pay was
lower than that of Los Angeles. Cabibi informed them
they had undertaken a study with reference to pay. He
also said their policies that had not been followed as far
as discipline would be corrected and they would adhere
to Nissan 's policies . Upon being asked were they not
there in response to the Union's petition Cabibi's re-
sponse was that was the item or stimulus that brought
the situation to their attention but that the changes that
were being made were as a result of their policies not
being followed and that to do anything else would be
wrong . Cabibi said he recognized their right to select
who ever they wanted but that was not the issue. He
said the issue was their policy and what was right or
wrong and what they had not done in the past that they
needed to do to make sure their policies are followed.
According to Duckworth copies of the personnel poli-
cies of Nissan were made available to the employees at
the meeting.
Under cross -examination Duckworth acknowledged it
was the petition that identified some of the business con-
cerns that required immediate treatment . He said Cabibi
told employees regarding the concerns they raised that
certain issues would be corrected and certain other mat-
ters were already corrected or would be looked into.
Duckworth also stated after the introduction the meeting
started with Cabibi saying the employees might have
questions they would like to ask him and he would re-
spond. On pay Duckworth stated Cabibi said those sala-
ries that were not in accordance with company policies
would be brought up to the correct wage they should
be.
NISSAN RESEARCH & DEVELOPMENT 609
Vice President Cabibi stated he went to the Respond-
ent's facility with Duckworth and Ogura because Duck-
worth informed him the employees there wanted to
speak to someone in authority . Cabibi did not testify
about what transpired at the 28 April meeting and Ogura
did not testify.
Thomas Flanagan stated at the meeting Duckworth
said they were behind in what they should be getting
paid and they would have an increase . They said what
had brought them there was what had been going on
with the Union and they were looking into what had
been going on. They also asked employees what their
concerns or problems were . After the employees told
them they said they were going to look into it and see
what they could do and they would try to resolve their
problems.
Based on the testimony of Respondent 's own witnesses
Thomas Flanagan and Corporate Personnel Relations
Manager Duckworth , including his admissions , I find on
28 April Vice President Cabibi and Duckworth solicited
the grievances of the automotive technicians and im-
pliedly promised or promised them their grievances
about low wages would be favorably resolved. Flana-
gan's testimony in this regard reveals the automotive
technicians were asked by Cabibi and Duckworth about
their concerns or problems and were not only told they
would try to resolve them but promised them a pay in-
crease . Duckworth admitted the automotive technicians
were asked about their concerns and were told by Cabibi
regarding the concerns they raised that certain issues
would be corrected and salaries would be brought up to
the correct wage they should be.
D. Announcing and Granting Employees Wage
Increases
Following the return of Vice President Cabibi, Corpo-
rate Relations Manager Duckworth, and Vice President
Ogura to California, Cabibi stated Manager of Compen-
sation Fujita subsequently gave him the report of his
study on the rates of Respondent's automotive techni-
cians which showed where they would have been had
NMC's policies been followed. Fujita explained he ar-
rived at the rates by taking the employees from their hire
dates at the minimum rate of the range and moving them
through the range on the automatic progression until
they reached midpoint and then granting them an aver-
age semiannual percentage increase which brought them
to the current proposed rates on his chart. The chart re-
flects the hourly pay rates to which automotive techni-
cians should be raised as follows : Robert Bolhuis from
$10.04 to $12.20; Chuck Dorais from $9.68 to $12.15; Mi-
chael Kassa from $8.75 to $11 ; Brian Montibeller from
$10.17 to $12.20; Frank Slavik from $10.36 to $12.20; and
Thomas Flanagan from $8.44 to $9.70.19 The wage in-
creases actually given in May to Bolhuis, Dorais, Kassa,
Montibeller, and Slavik effective 5 May raised their
hourly wage rates to $12.20 and the wage increase actu-
19 Cabibi acknowledged in figuring the wage increases they had taken
the average merit increase and applied it to all of the automotive techni-
cians since they did not know much about those employees and felt that
was the fairest way to do it.
ally given to Flanagan effective 5 May raised his hourly
wage rate to $10.45. The differences between the wage
rates proposed by Fujita's study and those actually given
were explained by Cabibi or Duckworth. Cabibi stated
Dorais under the study would have received 5 cents an
hour less. This was because his hire date had caused him
to miss the cut off date of his first automatic review by
about 11 days. However, Cabibi took the position they
should treat the automotive technicians all the same and
he directed they all except Flanagan be paid the $12.20
hourly rate. On Kassa, Duckworth and Cabibi said they
concluded Kassa had been treated improperly and not in
accordance with policy regarding his extended probation
and they approved the $12.20 hourly wage rate for him
rather than the proposed $11 hourly rate. Duckworth ex-
plained Flanagan was raised to $10.45 an hour rather
than the proposed $9.70 an hour because of his prior ex-
perience with General Motors and the work he was now
performing for the Respondent and because he was not
hired at the rate originally promised.
About the first part of May Corporate Personnel Rela-
tions Manager Duckworth , Vice President Nagahara,
and Corporate Administration Manager Grambush to-
gether met separately with each of the automotive tech-
nicians and informed them about the wage increases they
would receive.
Frank Slavik stated they told him the automotive tech-
nicians were to receive wage increases so they would be
standardized with corporate policy as far as wages.
Duckworth said they had studied their previous salary
reviews and the raises they were getting should take
them approximately to where they should be if manage-
ment had taken the corporate guidelines and followed
them through to that point. They said all of the automo-
tive technicians would be making the same except
Thomas Flanagan who would be a little bit different be-
cause he had been a recent hire . Slavik , whose hourly
pay rate was $10 . 36, was told his new pay rate would be
$12.20 an hour. He was also told Grambush would be
their new administrator and he would be reviewing job
title salaries so they could be gone over in departments
more in the future.
Both Thomas Flanagan and Brian Montibeller in their
meetings testified they were informed their raises would
bring them up to the level or in line with what the auto-
motive technicians in California received. They said they
were also shown pay scales with the rates listed for auto-
motive technicians.
Corporate Personnel Relations Manager Duckworth
stated at these meetings each automotive technician was
given an employee action form showing the pay rate
they were making and the new pay rate they would be
making when the change in their pay rates became effec-
tive on 5 May. Duckworth also showed them a copy of
the pay progression chart and where they would have
been had they been treated according to the policies for
that period of time.
Duckworth denied ever saying the wage increases
were conditioned on how the employees voted in the
election. The only thing Duckworth stated that was said
about the election was one unidentified automotive tech-
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nician asked was it not an unfair labor practice to pro-
vide a raise before the election . He responded by saying
from their point of view it was not and it was required
because their policies had not been followed . Upon sug-
gesting to the automotive technician if he felt it shaded
his judgment on the election he could elect not to re-
ceive the raise which Duckworth would guarantee him
after the election regardless on the outcome and retroac-
tive to the date due, the automotive technician decided
to take the raise before the election.
Frank Slavik, Thomas Flanagan , and Brian Monti-
beller all acknowledged at the meetings at which the
wage increases were announced there was no discussion
about how they would vote in the election.
On or about 5 May the Respondent admittedly in-
formed each of the unit employees that they would re-
ceive a wage increase effective that date and that their
paychecks incorporating those wage increases, which
ranged from 17.8 percent to 36 percent , were distributed
to them on 15 or 16 May.20 Frank Slavik credibly stated
without denial his wage increase showed up in his pay-
check received the day before the election which was
held on 16 May and I find that was the date all of them
were paid.
Based on Respondent 's admissions and its records and
the testimony of the various witnesses set forth above I
find on or about 5 May the Respondent advised each of
the automotive technicians they would receive a substan-
tial wage increase effective that date and that their pay-
checks incorporating those wage increases ranging from
17.8 percent to 36 percent were distributed to them the
day before the 16 May election.
While Frank Slavik acknowledged employees were
given job performance evaluations and wage increases
about 1 April and 1 October each year he denied prior
to April and May the Respondent had even informed
him about the Respondent 's policy on wage increases in-
cluding who determined the amount or what it was
based on. During his job evaluation by Respondent's
vice presidents , Yamagata and Nishigi, for his 1 April
wage increase Slavik credibly testified without denial he
expressed dissatisfaction with the amount of the 26-cent-
an-hour wage increase he was to receive . Upon com-
plaining the California automotive technicians made con-
siderably more than they did, Yamagata's response was
California had higher standards and a higher cost-of-
living and therefore they deserved more money. When
he brought up that the Tennessee plant also paid higher
wages Yamagata said manufacturing firms paid higher.
Slavik then mentioned Ford, Chrysler, and General
Motors also paid higher wages whereupon Yamagata's
response was they were UAW shops and therefore they
received higher wages . Slavik said he had also com-
plained to Yamagata at the time of the previous 1 Octo-
ber job performance evaluation that he thought their sal-
aries were too low and other facilities paid more and
they should also be paid more. While Yamagata on both
20 These wage increases were in addition to wage increases varying
from 2 6 percent to 3.5 percent given to them on 1 April and were sub-
stantially higher than the previous wage increases given to them which
ranged from 2 4 percent to 5 5 percent
occasions said he would investigate Slavik 's complaints
he never got back to Slavik about them.
E. Analysis and Conclusions
The General Counsel contends the Respondent violat-
ed Section 8(a)(1) of the Act by unlawfully soliciting em-
ployees' grievances with the implied promise they would
be resolved; announced and granted employees wage in-
creases; and refused to recognize the Union. It is further
contended a remedial bargaining order is warranted.
The Respondent denies having violated the Act. While
it admits giving its employees a wage increase just before
the representation election it asserts the granting of the
raises was justified and therefore not unlawful because of
the Respondent 's failure to follow Nissan 's policies on
raises which it contends were applicable to Respondent's
employees.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining , and coercing its employees
in the exercise of their rights guaranteed in Section 7 of
the Act.
The test applied in determining whether a violation of
Section 8(a)(1) of the Act has occurred is "whether the
employer engaged in conduct which, it may reasonably
be said , tends to interfere with the free exercise of em-
ployee rights under the Act." Electrical Fittings Corp.,
216 NLRB 1076 (1975).
The initial issue discussed is whether the Respondent
unlawfully solicited employees' grievances with promises
to resolve them.
The solicitation of employees' grievances during a
union organizational campaign with promises to correct
them is coercive and violates Section 8(a)(1) of the Act.
Uarco Inc., 216 NLRB 1 (1974). Where an employer had
had a past policy or practice of soliciting employees'
grievances the employer may continue such a policy and
practice during a union organizational campaign . Kings-
boro Medical Group, 270 NLRB 962, 963 (1984).
The findings , supra, establish about the middle of April
Corporate Personnel Relations Manager Duckworth so-
licited the grievances of Respondent 's automotive techni-
cians and impliedly promised them their grievances
about their low wages would be favorably resolved. On
28 April Duckworth and Vice President Cabibi also so-
licited the grievances of the automotive technicians and
impliedly promised or promised them their grievances
about their low wages would be favorably resolved.
These acts occurred during the Union's organizing cam-
paign among Respondent 's automotive technicians and I
find they were in response to a petition the Union had
filed on 4 April seeking to represent those employees.
Prior to that time the Respondent had never solicited its
employees ' grievances and there was no policy or prac-
tice in effect at Respondent 's facility regarding the solici-
tation of employees' grievances.
Based on the foregoing evidence I am persuaded and
find the Respondent about the middle of April and on 28
April unlawfully solicited its employees' grievances and
impliedly promised or promised to favorably resolve
their grievances about their low wages because of their
NISSAN RESEARCH & DEVELOPMENT 611
union activities and thereby violated Section 8(a)(1) of
the Act.
The next issue discussed is the Respondent 's announce-
ment and granting of wage increases to its automotive
technicians.
A grant or promise of benefits made by an employer
to its employees during a union organizational effort will
be considered unlawful unless the employer can provide
an explanation other than the organizational activity for
the timing of the grant or announcement of such benefits.
It is upon the employer to show by objective evidence
that it would have made the same grant or announce-
ment of benefits had the union not been present . Village
Thrift Store, 272 NLRB 572 (1983). An employer when
confronted by a union organizing campaign must pro-
ceed as it would have done had the union not been con-
ducting its campaign . Russell Stover Candies, 221 NLRB
441 (1975). The granting of wage increases during the
pendency of a representation proceeding has been held
to be lawful where such action is consistent with past
practices or has been decided upon prior to the onset of
union activities . Marine World USA, 236 NLRB 89, 90
(1978).
The above findings establish on or about 5 May the
Respondent advised each of the automotive technicians
they would receive a substantial wage increase effective
that date . Their paychecks incorporating those wage in-
creases ranging in amounts from 17.8 percent to 36 per-
cent were distributed to them the day before the repre-
sentation election held on 16 May . The decision to grant
such wage increases was not considered or made until
after the Union began its organizing campaign and had
filed its representation petition on 4 April.
The Respondent contends that the granting of such
wage increases at the time was justified and was not un-
lawful. Its reasons were because NMC had discovered
for the first time after the representation petition was
filed that the Respondent had not been following Nis-
san's policies on wage increases by which NMC claims
the Respondent is bound and the granting of such wage
increases was necessary to bring the wage rates of Re-
spondent 's automotive technicians in line with these poli-
cies . Both the contention and supporting reasons are un-
persuasive and contrary to the evidence.
From Respondent 's inception in 1983 it was not shown
to have ever followed Nissan 's policies in granting wage
increases to its employees . The reason Respondent's vice
president , Yamagata , gave at the time of the April wage
increase , which occurred only shortly before the wage
increase in issue here, for not paying Respondent's auto-
motive technicians the same wage rates as NMC's auto-
motive technicians , who were under Nissan 's policies,
was because they had a higher standard and cost-of-
living and therefore deserved more money than Re-
spondent 's employees . Thus, it is clear the Respondent
did not follow or consider itself bound by Nissan's poli-
cies on granting wage increases but rather it had and ex-
ercised its own policy.
Since NMC had always administered the payroll for
the Respondent it too would have had knowledge long
before the filing of the Union 's representation petition
that the Respondent did not follow or comply with Nis-
san's policies on granting wage increases to its employ-
ees. If as the Respondent now contends such policies
were always applicable to Respondent 's employees no
valid explanation was proffered for not enforcing them
before . While NMC's officials , Vice President Cabibi and
Corporate Personnel Relations Manager Duckworth,
sought to blame this on a lack of communications with
their subordinates who administered the payroll those
subordinates did not testify to support this assertion and
it does not appear plausible such a situation could have
continued in existence for years without their knowl-
edge . Moreover , if as the Respondent now contends the
real purpose of granting the May wage increases to the
Respondent 's automotive technicians was to make up for
the failure of the Respondent to comply with Nissan's
policies on wage increases in the past, it would appear
the Respondent would also have paid them their back
wages, which it did not , to make up for such losses suf-
fered by them.
Based on the findings that the Respondent prior to the
filing of the union representation petition on 4 April had
its own policy on granting wage increases to its automo-
tive technicians and the Nissan policies on wage in-
creases had never been applied to them before, and
absent as here any valid or plausible explanation for
granting the wage increases in issue here, I am persuaded
and find the Respondent on or about 5 May unlawfully
announced to its automotive technicians they would re-
ceive a substantial wage increase effective that day and
the Respondent on 15 May, the day before the represen-
tation election , unlawfully distributed paychecks contain-
ing those substantial wage increases to its automotive
technicians to undermine the Union 's organizational cam-
paign and thereby violated Section 8(a)(1) of the Act.
The remaining issue to be resolved is whether the Re-
spondent unlawfully refused to recognize the Union as
the bargaining representative of the automotive techni-
cians and a remedial bargaining order is warranted.
Under the general principles enunciated by the Su-
preme Court in Gissel, 21 applicable to the issuance of
bargaining orders, such orders are authorized to redress
those unfair labor practices so coercive that even in the
absence of an 8(a)(5) violation , a bargaining order would
be necessary to repair the unlawful effects of such unfair
labor practices and in the less extraordinary cases
marked by less persuasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election process . In the latter instance
the Board is to determine the nature and extent of the
employer's unlawful conduct and ascertain whether the
use of traditional remedies would ensure a fair election.
Insofar as the unlawful granting of raises to employees
as a basis for issuance of a bargaining order is concerned,
the Board in C & G Electric, 180 NLRB 427 ( 1969),
stated as follows:
However, where, as here, the Employer grants sub-
stantial wage increases to a high percentage of his
employees in violation of Section 8(a)(1) the em-
21 NLRB v G,ssel Packing Co, 395 U.S 575 (1969).
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees are not likely to miss the inference that "the
source of benefits now conferred is also the source
from which future benefits must flow and which
may dry up if it is not obliged ." N.L.R.B v. Ex-
change Parts, 375 U.S. 405. We find that this unlaw-
ful conduct was of such a nature as to have a lin-
gering effect and the use of traditional remedies was
unlikely to insure a fair or free rerun election. Thus,
even in the absence of the unlawful interrogation
we would conclude that the violations of Section
8(a)(1) require the bargaining order issued herein
for the reasons stated above.
Where an election has been held a bargaining order
will not be issued where otherwise appropriate unless the
election be set aside upon meritorious objections filed in
the representation case . Irving Air Chute Co., 149 NLRB
627 (1964), enfd . 350 F . 2d 176 (2d Cir. 1965).
A remedial bargaining order to be issued requires a
showing that a union represented a majority of the em-
ployer's employees in an appropriate unit . Gourmet
Foods, 270 NLRB 578 (1984). Unambiguous authoriza-
tion cards are invalid because of misrepresentation only
if employees are told or intentionally led to believe that
the sole purpose of the card is to secure an election. Wal-
green Co., 221 NLRB 1096 ( 1975).
The findings herein establish all six of Respondent's
automotive technicians who comprise the appropriate
bargaining unit signed union authorization cards . Howev-
er, the cards they signed while indicating they were au-
thorizing the Union to represent the signer in collective
bargaining expressly stated they were not applications
for membership and that the purpose of signing the card
was to have the Board conduct a secret ballot election
for all eligible employees at their place of work. The
purpose stated on the card is also consistent with what
the employees were told at the union meeting they at-
tended at which they were solicited by the union repre-
sentative to sign cards . While one employee did state
they were also told if all six employees signed cards it
was possible the Company would instate the Union it
was not explained how this would be accomplished and
they were further told nobody would see the cards and
the Company would not know who signed them. Since
the stated purpose of signing the card was to get an elec-
tion and therefore would negate its use for any other
purpose I find such cards are invalid for the purpose of
establishing the Union represented a majority of the Re-
spondent 's unit employees and absent as here a showing
of majority status by the Union no basis exists for finding
the Respondent unlawfully refused to recognize the
Union and no bargaining order could be issued even if it
might otherwise be warranted to remedy the unfair labor
practice found here.22
nouncing to its automotive technicians they would re-
ceive a substantial wage increase effective that day and
the Respondent on 15 May , the day before the represen-
tation election , unlawfully distributed paychecks contain-
ing these substantial wage increases to its automotive
technicians , I find both of the Union's Objections 1 and 2
set forth supra have merit and are sustained.
The Board has long held that conduct violative of
Section 8(a)(1) of the Act is, a fortiori , conduct which
interferes with the laboratory conditions of an election.
Life Savers, Inc., 264 NLRB 1257 (1982 ); Super Thrift
Markets, 233 NLRB 409 ( 1977); and Dal-Tex Optical Co.,
137 NLRB 1782 , 1786 (1962).
Based on the findings that the Union 's Objections 1
and 2 both have merit and should be sustained I find
such conduct was sufficient to have interfered with the
election held on 16 May and to warrant setting the elec-
tion aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above , found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent 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 and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Nissan Research and Development , Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Steelworkers of America , AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By soliciting its employees ' grievances and impliedly
promising or promising to favorably resolve their griev-
ances about their low wages because of their union ac-
tivities; and by announcing and granting substantial wage
increases to its employees to undermine the Union's or-
ganizational campaign , Respondent has interfered with,
restrained , and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act and has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Union's Objections 1 and 2 all occurring during
the critical period have been sustained by the evidence
and the Respondent has thereby interfered with and ille-
gally affected the results of the election held on 16 May
1986.
F. The Objections to the Election
Having found that the Respondent violated Section
8(a)(1) of the Act on or about 5 May by unlawfully an-
22 Since no bargaining order can issue I do not find it necessary to de-
termine whether the unfair labor practices are sufficient to warrant such
an order.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
NISSAN RESEARCH & DEVELOPMENT
The General Counsel's request that the remedial order
include a visitatorial clause authorizing the Board to
engage in discovery under the Federal Rules of Civil
Procedure to enable it to monitor compliance with the
Board's Order as enforced by the court of appeals is re-
jected on the grounds the Board does not provide for
discovery procedures in its proceedings and there is no
showing that under the circumstances presented here
such a clause is necessary.
Further in Case 7-RC-18022 having found that the
Union's Objections 1 and 2 were sustained by the evi-
dence I shall recommend that the election held on 16
May 1986 be set aside and the case be remanded to the
Regional Director for Region 7 and a new election shall
be conducted.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent , Nissan Research and Development,
Inc., Ann Arbor, Michigan , its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Soliciting its employees ' grievances including those
about low wages and implying or promising to favorably
resolve them because of their union activities.
(b) Announcing or granting wage increases to its em-
ployees to undermine the organizational campaign of the
United Steelworkers of America , AFL-CIO-CLC or
any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Ann Arbor, Michigan facility copies of
the attached notice marked "Appendix."24 Copies of said
23 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
24 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
613
notice on forms furnished by the Regional Director for
Region 7 shall after being signed by Respondent's au-
thorized representative be posted immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges unfair labor practices not spe-
cifically found herein.
IT IS FURTHER ORDERED in Case 7-RC-18022 that the
election held on 16 May 1986 is set aside and the case is
remanded to the Regional Director for Region 7, who
shall conduct a new election in the appropriate unit at
such time as he deems the circumstances permit the free
choice of a bargaining representative.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit our employees ' grievances in-
cluding those about low wages and imply or promise to
favorably resolve them because of their union activities.
WE WILL NOT announce or grant wage increases to its
employees to undermine the organizational campaign of
the United Steelworkers of America , AFL-CIO-CLC or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
NISSAN RESEARCH AND DEVELOPMENT, INC.