Lasco Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1975

217 N.L.R.B. 527 (N.L.R.B. 1975)

LASCO INDUSTRIES , INC. 527
Lasco Industries , Inc. and Textile Workers Union of
America, AFL-CIO-CLC and Alan Godsey. Cases
9--CA-8233, 9-RC-103 10, and 9-CA-8268
April 28, 1975
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS KENNEDY AND
PENELLO
On August 19, 1974, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.`
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the -rulings, findings, and
conclusions2 of the Administrative Law Judge and to
adopt his recommemded- Order, with the following
modifications.
1. We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1) of the
Act by,engaging in- the following conduct during the
period immediately preceding the election: (1) promis-
ing one employee a favorable recommendation for a job
he was seeking with another company in exchange for
his promise to remain in Respondent's employ until
after the election; (2) removing a supervisor from his
position in response to employee complaints and noti-
fying them of such action; and (3) - soliciting and
promptly remedying the grievances, concerning Re-
spondent's failure to grant merit increases and/or job
classification changes involving certain employees,
which were expressed during two meetings held by
Respondent.
The Administrative Law Judge further found that
Respondent violated Section 8(a)(1)) of the Act by
granting merit increases and/or job classification
changes to employees Earl Bailey, Joel Chatman, Ger-
ald Combs, Robert Klaiss, Richard Lawson, David
Pemberton, Ted Ryder, and Thomas Thomas. Re-
spondent excepts to the finding of these violations on
the grounds that no issue with respect to any of these
employees was raised or litigated at the hearing and
1 The Respondent's request for oral argument is hereby denied as the
record and brief adequately present the issues and the positions of the
parties.
2 In the absence of exceptions thereto, we adopt pro forma the Adminis-
trative Law Judge's conclusion that the Respondent did not violate the Act
by suspending Alan Godsey
that, therefore, it was denied the opportunity to present
any defenses to these charges it may have-had. We find
merit in this exception.
As noted by the Administrative Law Judge, the alle-
gations of the complaint concerning wage increases and
job classification changes, as they were developed at the
hearing, were predicated solely on Respondent's ac-
tions with respect to certain other employees who re-
ceived such benefits as a result of complaints concern-
ing them specifically made to Respondent's officials
during two meetings at which the latter clearly implied
that they would remedy such grievances. In his brief
submitted to the Administrative Law Judge after the
close of the hearing, however, the General Counsel,
relying on payroll records received into evidence at the
hearing, contended that Respondent additionally vi-
olated the Act by granting such benefits to the above-
named employees, among others. Based upon his own
examination of these documents, the Administrative
Law Judge found that each of the above-named em-
ployees had been granted such benefits at times other
than in accordance with Respondent's general policy of
granting merit increases at 90-day intervals. Although
he found no evidence that any of these employees had
complained to Respondent's officials themselves, or
had been referred to specifically by others during either
of the two meetings, the Administrative Law Judge
concluded that, in the absence of any explanation by
Respondent for departing from this policy,' the infer-
ence was warranted that Respondent's motivation in
granting such benefits to them was unlawful.
The record discloses that no evidence was adduced
at the hearing by the General Counsel concerning the
particular circumstances surrounding the granting of
such benefits to these specific employees. It is clear,
therefore, that the Administrative Law Judge's conclu-
sion that Respondent violated the Act with respect to
them was based solely upon a set of unlitigated facts
which, as he himself found, were separate and distinct
from those upon which the General Counsel premised
the allegations of the complaint.' In these circum-
3 Although we do not specifically rely thereon, the record establishes that
Respondent had not strictly adhered to such a policy, but rather frequently
had granted merit increases and job classification changes to employees at
other than 90-day intervals in the past
4 The Administrative Law Judge concluded, for similar reasons, that
Respondent also violated the Act by granting a merit increase to employee
Steve Shuster Respondent has also expected to this finding.
The record shows that, on examination by Respondent's counsel, the
Respondent's assistant plant manager, Donald Olberding, testified that dur-
ing the period preceding the election he was approached by Shuster who
claimed that he was entitled to a merit increase and that, thereafter, he in
fact received such an increase. The General Counsel, however, did not
attempt to establish, and the record does not show, that Shuster was present
at either of the meetings held by Respondent, or that he was specifically
referred to in the complaints expressed by other employees, or that Re-
spondent otherwise granted him such an increase for unlawful purposes. We,
therefore, do not adopt the Administrative Law Judge's findings of such a
violation
217 NLRB No. 72
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, we conclude that the finding of these addi-
tional violations is unwarranted5 and, accordingly, we
do not adopt the Administrative Law Judge 's Decision
in this regard.
2. The Administrative Law Judge concluded that the
violation of Section 8(a)(1) by Respondent 's soliciting
and promptly remedying employee grievances, stand-
ing alone , was sufficiently serious to preclude the hold-
ing of a fair rerun election and, therefore , warranted the
issuance of a bargaining order based on the Union's
showing of majority status. We do not agree with this
conclusion.'
The record establishes , and in view of our discussion
above we find , that Respondent unlawfully 'granted
merit increases and/or job classification changes to 10
of 70 employees in the unit. We agree with the Ad-
ministrative Law Judge 's findings that such miscon-
duct requires the setting aside of the election . However,
we conclude, contrary to the Administrative Law
Judge , that all the unfair labor practices committed
herein, even when considered in their totality,' are not
of such magnitude as to warrant the issuance of a bar-
gaining order under the guidelines set forth by the
Supreme Court in Gissel Packing Co.' Accordingly,
we shall modify the Administrative Law Judge's
recommended Order and direct a second election.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent, Lasco Industries, Inc.,
Florence, Kentucky, its officers , agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraph 2(a) and reletter the subsequent
paragraphs accordingly.
2. Substitute the attached notice for the notice of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
November 8, 1973, in Case 9-RC-10320 be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior footnote
omitted from publication.]
5 Cf. Poray, Inc, 143 NLRB 617, 618 (1963).
6 In view of our decision herein, we find it unnecessary to pass upon the
issues raised by Respondent concerning the validity of certain authorization
cards procured by the Union and the showing of the Union's majority status
which was based in part thereon
7 See , e g, Local Union No 707, Highway and Local Motor Freight
Drivers, Dockmen and Helpers, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers ofAmerica (Claremont Polychemi-
cal Corporation), 196 NLRB 613, 614 (1972).
8 NLR.B v Gissel Packing Co., Inc., '395 U.S 575 (1969).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found we violated the law and has ordered
us to post this notice.
WE WILL NOT Solicit complaints and grievances
from you for the purpose of inducing you to with-
draw your support from , or to cease giving assist-
ance to, Textile Workers Union of America,
AFL-CIO-CLC, or any other labor organization.
WE WILL NOT grant you merit increases or clas-
sification changes where our purpose in doing so
is to induce you to withdraw your support from,
or to cease giving assistance to, the above-named
Union,
WE WILL NOT correct your grievances about
supervision by removing supervisors from their
positions, nor notify you that we have taken such
action, where such action has been taken to induce
you to withdraw your assistance from , or to cease
giving support to, the above-named Union.
WE WILL NOT in any like or related manner inter-
fere with ,- restrain , or coerce employees in the ex-
ercise of their right to self-organization , to form,
join , or assist labor organizations, to bargain col-
lectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection as guaranteed by Section
7 of the Act, or to refrain from any or all such
activities.
You are free to become and remain members of Tex-
tile Workers Union of America, AFL-CIO-CLC.
LASCO INDUSTRIES, INC
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: These cases
involve allegations that the above-named Respondent vi-
olated Section 8(a)(1), (3), and (5) of the Act. The 8(a)(3)
allegation consists of the suspension of Alan Godsey, the
Charging Party in Case 9-CA-8268, and the 8(a)(5) allega-
tion is predicated on Respondent's refusal to recognize the
above-named Union on the basis of an asserted -card majority.
The charge in Case 9-CA-8233 was filed by the Union on
January 9, 1974, and the charge in Case 9-CA-8268 was filed
by Godsey on January 25, 1974. The charges were con-
solidated and complaint issued on March 7, 1974, and hear-
LASCO INDUSTRIES, INC.
ing thereon was held on April 22 through 24, 1974, in Cincin-
nati, Ohio.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and Respondent , I make the following:
FINDINGS OF FACT
I THE FACTUAL SETTING
Respondent is engaged in the manufacture of fiberglass
panels at a plant in Florence, Kentucky, where it employed
approximately 72 employees at the times relevant herein.'
In early September 19731 Daniel Patterson, International
representative of the Union, stopped at Respondent 's plant
and visited the lunchroom where he talked to employees
about union representation and invited them to a nearby
Holiday Inn to discuss the matter with him if they were
interested. The next day, several employees met with Patter-
son at the Holiday Inn to discuss an organizational attempt
among Respondent's employees . Thereafter , several other
meetings of employees were held at the motel at which union-
ization was discussed and at which the employees executed
authorization cards on behalf of the Union. On October 2, the
Union sent Respondent a letter claiming to represent a
majority of its employees in a production and maintenance
unit and requesting that a conference be arranged to negotiate
a contract. On the same day, the Union filed the petition in
Case 9-RC-10310. On October 19, the parties entered into
a Stipulation for Certification Upon Consent Election Agree-
ment pursuant to which an election was conducted on
November 8, in which 40 votes were cast against representa-
tion by the Union and 28 votes in favor thereof, with 3
challenged ballots. On November 12, the Union filed timely
objections to conduct affecting the results of the election. The
objections were consolidated for hearing with the complaint
and will be discussed hereinafter.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and Coercion
1. Threats of loss of jobs
The complaint alleges that on or about November 2, Re-
spondent, by maintenance foreman George Disque, threat-
ened employees with loss of jobs should the Union be success-
ful in the forthcoming election.
According to Alan Godsey, the Charging Party in Case
9-CA-8268, on or about November 22, he saw Disque in the
lunchroom, asked him how he happened to be there, and
Disque replied he had been out all night "talking against
you," meaning the Union adherents and he said "As soon as
this is all cleared up, you're going to be out on the street and
the rest of you guys wearing the T-shirts, too." (This last
remark was a reference to Union T-shirts being worn by some
employees.) Employee Denver Hacker corroborated Godsey,
' Jurisdiction is not in issue The complaint alleges , the answer admits, and
I find, that Respondent meets the Board's direct outflow standard for the
assertion of jurisdiction
2 Unless otherwise indicated, all dates hereinafter are 1973.
529
but his testimony about Disque's remarks was less complete
and explicit.
Disque admitted he had a conversation in the lunchroom,
but he denied saying employees would be fired if the Union
got in. Instead, he gave a different version of the conversa-
tion . Disque did not impress me, and I do not credit him.
Nevertheless, I shall recommend dismissal of the allegation
relating to his threat because I conclude that the evidence is
insufficient to warrant a finding that Disque is a supervisor
within the meaning of Section 2(11) of the Act.
Disque described himself as maintenance leadman. He and
four other maintenance employees maintain and build equip-
ment in the plant. Disque receives the work orders from the
plant or production manager, but he testified he does not
assign the work to the other maintenance employees; rather,
he discusses the work with them, and each employee under-
takes to perform the jobs for which he is best qualified.
Disque does not transfer employees from job to job. He does
not recommend wage increases and there is no evidence that
he reprimands or disciplines employees or has the authority
to do so. Unlike other maintenance employees, he does not
punch a timeclock, but he testified that the reason for this was
unrelated to any supervisory functions. Although Disque did
not impress me favorably as a witness, his testimony about his
supervisory status was uncontradicted. While Disque receives
a substantially higher rate of pay than the maintenance men
he leads, that is insufficient basis, standing alone, to warrant
a finding of supervisory status. In my judgment, in the ab-
sence of any evidence that he possesses the supervisory crit-
eria enumerated in Section 2(11) of the Act, a finding that he
is a supervisor within the meaning of Section 2(11) is not
warranted.
2. The preelection speech of November 7
Ervin Brandon is plant manager of the Florence, Ken-
tucky, plant. On November 7, the day before the election in
Case 9-RC-10310 , he delivered a speech to the assembled
employees. The complaint alleges that in the course of this
speech Brandon expressed the futility of employees selecting
the Union as their bargaining representative and told them
their job security could be jeopardized if the Union were
selected as their bargaining representative.
In support of these allegations , General Counsel adduced
testimony from employees Alan Godsey , Randy Paynter, and
Dale Adams . In his brief, General Counsel repeated the alle-
gations of the complaint and gave a record reference to God-
sey's testimony , but he did not point out just what remarks
of Brandon 's supported the allegations of the complaint. In
my judgment , the testimony of all his witnesses with respect
to the speech , if credited , is insufficient to warrant a finding
that Brandon made any remarks which were violative of
Section 8 (a)(1) of the Act. Like the General Counsel, I see no
useful purpose in -repeating the testimony here. Apart from
that consideration , if the testimony of General Counsel's wit-
nesses supported the allegations of the complaint , I would be
constrained to reject it, because Brandon testified that he read
from a prepared speech which he delivered verbatim, and
there is no testimony to contradict him. I credit him in this
particular, and to the extent the employees' versions differ
from the written speech, I reject their testimony . The written
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speech, in my judgment , contained no threats as alleged in the
complaint, but rather contained expressions of opinion pro-
tected by Section 8(c) of the Act. Accordingly, I shall recom-
mend dismissal of paragraph 5(a)(ii) and (iii) of the com-
plaint.
3. Promise of a good job recommendation
At the hearing, General Counsel amended the complaint
to allege that Respondent violated Section 8(a)(1) of the Act
by offering an employee a more desirable position of employ-
ment and-a higher rate of pay if he would assist Respondent
in defeating the Union. This amendment was predicated on
testimony of former employee Carlos Jump that about mid-
October he told Brandon that he was planning to accept a job
at another plant located in the Industrial Park where Re-
spondent is located. Brandon asked Jump if he would stay
long enough to help him because he needed all the help he
-would get against the Union. (Jump was a known opponent
of the Union, wearing a Vote No T-shirt.) Jump said he
would if Brandon would help him get the new job. Brandon
agreed, and Jump did not quit and he voted in the election.
Brandon admitted talking with Jump about leaving the
Company and admitted asking him to stay until after the
election "so that we can have it as fair and representative as
possible." Jump said he didn't mind staying if Brandon
thought the other company would take him on, and Brandon
told him he would give him a good recommendation.
It appears to me that there is no essential difference be-
tween Brandon's version of his conversation with Jump and
Jump's version. Under Jump's version, the good recommen-
dation was the quid pro quo for his agreement to stay until
after the election ; under Brandon's version , Jump 's agree-
ment to stay was given before anything was said about a
recommendation, and the offer of a good recommendation
was not a quid pro quo but an assurance based on Jump's
merits as an employee. In either case, I find that Respondent
violated Section 8(a)(1) of the Act.
Because of Jump's understanding of a, gentleman's agree-
ment among employers in the Industrial Park about the hir-
ing of one another's employees, a good recommendation from
Brandon was important to Jump. At the time of the conversa-
tion, he had not been hired by the other employer and he
could not risk incurring Brandon's displeasure by quitting
before the election. At the time of the election, he still had no
assurance of the new job. For all Jump knew then, he would
continue to be employed by Respondent and when he voted
he could not exercise a free choice because of this promise of
a good recommendation. True, Jump was antiunion at the
time of the conversation, but he could have changed his mind.
Brandon's promise interfered with that possibility. I find that
the promise-was unlawful.
4. The solicitation of grievances
The complaint alleges that Respondent, by Plant Manager
Brandon, Industrial Relations Manager Russell McMurphy,
and Foreman Robert Hicks, solicited employee grievances in
order to undermine the Union and thereby violated Section
8(a)(1) of the Act. These allegations are based on the follow-
ing series of events.
On October 2, Brandon assembled the employees of the
-second shift in the cafeteria. -According to Alan Godsey,
Brandon opened the meeting by saying that he knew the -
employees had been going over to the Holiday Inn to see an
organizer. Randy Paynter corroborates Godsey as to this
remark and Dale Adams attributes a similar statement to
Brandon in his testimony.. Godsey then asked Brandon if he
knew they had petitioned for an election with cards from over
50 percent of the employees. Brandon did not reply directly
to this; rather, he said that he couldn't understand why they
needed a union because he had an open-door policy. Accord-
ing to Paynter, Brandon's remark was that they didn't need
a middle man to do their talking and he asked the employees
what their grievances were. According to Adams, Brandon
said he had an open-door policy and' he thought that they
could settle any differences between themselves.
Employee Alan Cornelius spoke out that he couldn't talk
to Brandon, that he had been to the office three times before
the union activity began about three merit increases due him
with no success and that he had talked to two foremen about
sick pay and had only received half of what he was entitled
to. Both Godsey and Adams state that Brandon told Cor-
nelius to be quiet and sit down. Other employees to complain
were Nick Brossart, Adams, Paynter, and Bill Brown, all of
whom complained about not being given the proper job clas-
sification and the merit increases which went with them.
Employee Georgejana Foltz complained that a foreman told
her that women would never progress further than the pro-
duction worker classification and into higher classifications.
Brandon asked her what job she wanted and when she told
him he said she could have it the next night.
Godsey complained about the adequacy of maternity bene-
fits and told Brandon that the employees wanted something
done about Foreman Spiece with whom the employees had
been having a lot of trouble. (Paynter attributes the foreman
complaint to employee Oral Jones.) According to Godsey,
Brandon made no reply, but the next day a notice was posted
on the bulletin board notifying employees that Spiece was
being relieved of his foreman position. The meeting ended
with Brandon telling the employees that Industrial Relations
Manager Russ McMurphy would come in and talk to them
at a later date.
McMurphy, who is corporate industrial relations manager
with an office in California, came to the plant in mid-October
and spoke to the assembled employees. According to Godsey,
McMurphy began by explaining Respondent's progress and
certain changes in its operations. When he had finished ex-
plaining these matters, he remarked that now he had reached
the union situation and he expressed the wish that he could
have come to the plant at an earlier date, but explained that
he had been delayed. He then asked what exactly were the
employees' problems and gripes. According to employee
Paynter, McMurphy said he felt they didn't need a union;
they could talk with him freely about their complaints and he
would try to iron them out. Paynter admitted, however, that
McMurphy said he couldn't promise anything. Employee
Adams confirmed that McMurphy asked the employees if
they had any complaints. The employees who had earlier
complained to Brandon at the October 2 meeting generally
repeated the complaints that they had previously made As
each complaint was voiced; McMurphy made a note of it.
LASCO INDUSTRIES, INC
About 1 week later, Foreman Hicks approached Paynter
and asked him when he believed he should have been reclassi-'
fled and for what job. Paynter told him and a week or two
later he received a reclassification and a 21-cent-per-hour
raise plus backpay of $75 retroactive to the date he should
have been reclassified (this occurred 1 week before the elec-
tion). Paynter had complained about reclassification to Fore-
man Fortner in June, the second month that he was on the
job for which he believed he was entitled to a reclassification.
About the same time, Foreman Hicks called Adams into
his office and reviewed with him the date when Adams had
started on the job to which he believed he should have been
reclassified. Thereafter, Adams was reclassified, given a wage
increase and retroactive pay to the date he should have been
reclassified. He received backpay in the amount of $57. His
wage increase was 10 cents per hour.
Employees Alan Cornelius and Bill Brown were similarly
reclassified and given retroactive pay, but the record does not
indicate whether they were similarly contacted by Hicks.
The complaint alleges that in Brandon's meeting of Octo-
ber 2, McMurphy's meeting in mid-October, and Hicks' in-
quiries of Adams and Paynter, Respondent engaged in the
solicitation of grievances in order to undermine the Union,
and that it thereby violated Section 8(a)(1[) of the Act. As the
foregoing indicates, Respondent not only asked employees
what their grievances were, but it also corrected them. The
corrective action is also alleged to constitute conduct viola-
tive of the Act, and I will dispose of that issue below. At this
point, I treat only of the solicitation of grievances as interfer-
ence in violation of Section 8(a)(1) of the Act.
The Board has long held that the solicitation of employee
grievances during an organizational campaign is
unlawful.' This is so even though the employer may not
have promised to remedy the employees' grievances, and may
even have expressly disclaimed making any promises.' The
promise is implied from the circumstances of the case, includ-
ing the timing of the solicitation and the announced purpose
of the solicitation. Where the employer states, as did Bran-
don, that he can't understand why the employees feel they
need a union, that he has an open-door policy, and they don't
need a middle man to do their talking, or as McMurphy
stated "he felt they didn't need a union, they could talk with
him freely about their complaints," a promise to remedy the
complaints is rather clearly implied.
Respondent contends that Brandon's and McMurphy's
meetings with employees were not unlawful because they
were in accord with longstanding company policy and prac-
tice. It is true that an employer who has had a policy and
practice of soliciting employee grievances may continue such
policy and practice during an organizational campaign with-
out violating the Act.' Whether his conduct during the or-
ganizational campaign accords with his past policy and prac-
tice, however, depends on an evaluation of all the
3 Eagle-Picher Industries, Inc., 171 NLRB 293 (1968).
4 Landis Tool Company, Division of Litton Industries, 190 NLRB 757
(1971), enfd. 460 F.2d 23 (CA 3, 1972).
5 The principle that an employer violates the Act when he solicits em-
ployee grievances during an organizational campaign is not a principle of
per se application; rather, it comes into play "where , as here, an employer
. . has not previously had a practice of"soliciting employee grievances or
complaints .. " Reliance Electric Company Madison Plant Mechanical
Drivers Division, 191 NLRB 44, 46 (1971)
531
circumstances of the case. In this case, in my judgment, the
evidence supports'a finding that Brandon's meeting of Octo-
ber 2 and McMurphy's mid-October meeting were not based
on past policy and practice but were precipitated by the or-
ganizational activity of Respondent's employees and were
designed to undermine such activities. According to Bran-
don, the employees in the warehouse on the first shift had
asked to meet with him on October 2 to discuss some com-
plaints they had about insurance benefits. Brandon met with
them and tried to answer their questions. According to Bran-
don, at this meeting, he learned for the'first time that there
was union activity among Respondent's employees and he
learned it from the warehouse employees who intimated that
the activity was confined to the second shift production em-
ployees and that he should talk to them. It was as a result of
this that Brandon asserts he called the meeting described
above.
I do not credit Brandon's testimony that he first learned of
union activity at this first meeting. According to employee
Denver Hacker, he was one of the employees to speak to
Patterson the day he visited the plant. After Patterson left,
Foreman Fortner asked him who that was and Hacker told
him a guy from the Union. The day after Hacker met with
Patterson at the Holiday Inn, he was called into the office by
Brandon shortly after he arrived at the plant, and Brandon
asked him who was involved with the Union. Hacker testified
that he had previously given Brandon some information dur-
ing a prior union organizational campaign and he told Bran-
don that he didn't want to get involved this time. Brandon
told him all right, there were other ways to find out. This
testimony was undenied and I credit it and find that Brandon
knew of the employees' union activity before October 2.6
Actually, whether Brandon learned of the union activity at
the morning meeting on October 2, or earlier is not too criti-
cal. It is abundantly clear that the reason for the meeting with
the second shift employees was the fact of the union activity.
Thus, at the very outset, according to Godsey's testimony,
corroborated by Paynter and Adams, which I credit, the
meeting opened with a reference to employee meetings at the
Holiday Inn. This observation (which conveyed an impres-
sion of surveillance of the employees ' union activities, .a possi-
ble violation of the Act not alleged in the complaint) was
followed by the remark that Brandon could not understand
why the employees needed a union and that he had an open-
door policy. Such remarks indicate clearly that the meeting
was not planned, not based on company policy and
practice.'
6 After close of hearing, Respondent filed a motion to reopen hearing to
present evidence relative to amendments to the complaint made at the
hearing and to new matters raised at the hearing. One of these matters was
Hacker's testimony The motion was denied Insofar as Hacker's testimony
is concerned, General Counsel did not amend his complaint to allege that
either Fortner's or Brandon's interrogation was unlawful, rather, the tes-
timony was proffered and received to support the allegation that the solicita-
tion of employee grievances was for the purpose of undermining the Union.
Brandon testified on behalf of Respondent and no valid excuse has been
given for the failure to examine him on the subject matter of Hacker's
testimony Nor has Respondent given any reason for not calling Fortner.
7 Brandon's description of the meeting was rather general and did not
substantially differ from that of the employees except that he testified that
any reference to meetings of the employees at the Holiday Inn was made
after what he described as the positive portion of the presentation. However,
he never did describe what that consisted of, only that after the presentation
(Continued)
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the record indicates clearly that Respondent has
no practice of soliciting employee grievances. True, the re=
cord indicates that employee meetings have been held in the
past, but they were not held with any degree of regularity.
The last meeting of any kind was in December 1972, and it
dealt with plant and production changes and problems associ-
ated with the physical facilities. Brandon could not remember
any discussion of individual employee problems.
The only other meetings with employees are those con-
ducted by Russ McMurphy, who conducted two in 1971, one
in 1972, and the_meetings in mid-October which are here
alleged to be unlawful. According to McMurphy's own tes-
timony, it is clear that these meetings are to advise employees
of developments in the operations of the Company generally
and, in my judgment, they can be said to be meetings to solicit
employee grievances only in the sense that after his presenta-
tion he asks for any questions. As I have pointed out, Bran-
don's meeting did not fit that mold. The meeting was not
thrown open to questions about any matters presented by
Brandon; rather, Brandon asked the question and that ques-
tion was why do you want a union. I find that Brandon
solicited employee grievances, related his solicitation to the
Union's organizational campaign and clearly implied that he
would correct employee grievances so that a union would not
be necessary. Respondent thereby violated Section 8(a)(1) of
the Act.
The complaint also alleges that McMurphy unlawfully sol-
icited employee grievances in his meeting with employees.
The record supports the allegation. Apart from what I have
said above about McMurphy's meetings of the past, I note
that McMurphy, like Brandon, was the one to ask questions
and not the employees. I note that in doing so he expressly
adverted to the union situation. Finally, I note Brandon's
admission that McMurphy came to the plant when he did
because of a call from Brandon and Brandon's notification to
him of the Union's campaign. Under these circumstances, it
is clear that the purpose of the meeting was to undermine the
Union and that the solicitation of grievances was unlawful.
I so find.
As I have described above, about 1 week after McMurphy's
meeting with employees where they aired their grievances,
Foreman Robert Hicks spoke to Adams and Paynter about
their complaints about job reclassification and shortly there-
after the job reclassifications were made and merit increases
were granted. It is these inquiries of employees by Hicks
which the complaint alleges as the solicitation of grievances.
It is clear, however, that Hicks' inquiries were in implementa-
tion of the solicitation of grievances by Brandon or McMur-
phy described above and not independent inquiries . I fail to
see how such inquiries could be deemed independent solicita-
tions of grievances, and I shall recommend dismissal of the
allegation respecting Hicks. In any event, any finding of a
violation would merely duplicate the findings above and re-
quire no additional remedy.
he asked if there were any questions as is done in all such meetings I do
not credit his version
5. The correction of employee grievances
a. Merit increases, retroactive pay increases- and job
classification changes
As described above, after Respondent solicited employees
about their grievances and after it learned that certain em-
ployees were aggrieved about their job classifications and
rates of pay, Respondent made job classification changes for
several employees and granted them wage increases. Thus,
Randy Paynter was reclassified from production worker to
utilityman and given a 21-cent-per-hour wage increase effec-
tive October 8, plus backpay of $75 to the date he should have
been reclassified. Dale Adams was similarly reclassified and
received a 10-cent-per-hour wage increase, plus $57 in back-
pay. (His personnel record (G.C. Exh. 12-A) shows this ac-
tion as effective October 1, but it is clear from Adams uncon-
tradicted testimony that the action was taken sometime after
October 17.) Bill Brown, another employee who complained,
was also reclassified and given a 10-cent-per-hour wage in-
crease plus retroactive pay. He did not testify, and according
to his personnel record (G.C. Exh. 12-h) such action was
taken on October 1, but it is evident that the action was taken
after the October 2 meeting else he'would not have com-
plained to Brandon at the meeting of that date as the uncon-
tradicted testimony shows. Alan Cornelius, yet another em-
ployee to complain at the October 2 meeting , received two
wage increases of 10 cents per hour, plus retroactive pay. One
increase is shown on his personnel record as being effective
October 1, the other October 15. It is clear again that both
increases were made after October 2. Nicholas Brossart, yet
another employee to complain on October 2, received a merit
increase of 14 cents per hour effective October 15 and a
reclassification and 10 cents per hour on October 22. Robert
Sturgeon, who is shown as having complained to McMurphy
in mid-October, received a classification change and raise
effective October 1.
At the hearing, it appeared that the allegations of the com-
plaint respecting wage increases and job classification
changes were predicated only on the wage increases and clas-
sification changes given to the employees who complained
either to Brandon or McMurphy. In his brief, however, Gen-
eral Counsel asserts that there were a total of 25 employees
who received wage increases during the preelection period.
No evidence was received respecting such increases except
that referred to above about employees who complained at
the October 2 meeting or the mid-October meeting; neverthe-
less, General Counsel contends that all such increases were
unlawfully motivated.
According to Respondent, none of the personnel actions
was unlawful; rather, they were consistent with past practice.
That practice was to grant employees merit increases at 90-
day intervals, with discretion to grant them earlier. If an
employee received a classification change which raised his
rate of pay, this did not interrupt his 90-day interval. In cases
such as Paynter's, Adams', Brown's and Cornelius', Re-
spondent asserts it was "simply giving effect to its long stand-
ing policies on merit increases and classification changes,
which policies had not been applied to these individuals be-
cause of error."
LASCO INDUSTRIES, INC.
I cannot subscribe wholly to the position of either party.
Of the 25 employees named by General Counsel in his brief,
7 received merit increases in accordance with the 90-day
interval," and there is no evidence that Respondent did
other than follow its past practice in granting these increases.
I therefore find no violation insofar as these increases are
concerned.
As to all the other personnel actions, however, it appears
that they were attributable to the fact that the employees had
expressed an interest in union representation, and not to the
fact that Respondent was simply correcting errors. This is
abundantly clear from the uncontradicted testimony that at
the October 2 meeting, Alan Cornelius complained to Bran-
don that he had been to the office three times before union
activity began about three merit increases due him with no
success; the uncontradicted testimony of Godsey that he had
complained about his classification before the union activity
with no success and when he was reclassified after October
2, he told Foreman Hicks it wasn't right, that "I had put in
for the job many times before and now the Union is coming
to town I get it", the uncontradicted testimony of Randy
Paynter that he had complained about reclassification before
October 2, without success, and the uncontradicted tes-
timony of Dale Adams that he had complained to two fore-
men before October 2, without success.
These complaints were evidently meritorious, but that is
not the point. The point is they were not corrected until the
employees expressed interest in Union representation. 01-
berding testified about the changes involving Adams, Brown,
Paynter, and Cornelius and that the changes came about
because Foreman Hicks brought to his attention the fact
these employees were improperly classified. Foreman Hicks
corroborated Olberding about approaching Olberding with
complaints from Adams, Cornelius, Brown, and Paynter,
who had come to him about their classifications. I do not
credit Olberding and Hicks insofar as their testimony sug-
gests either'that their discussions antedated October 2, or
were, unrelated to the October 2 meeting, and that-such dis-
cussnons represented the normal handling of employee com-
plain s. As pointed out above, Adams, Paynter, and Godsey
testified without contradiction of complaints before October
2, which were ignored and Cornelius complained of that very
fact at the October 2 meeting. Moreover, as will be shown
below, it is clear that any consultations between Hicks and
Olberding about improper classifications occurred after Oc-
tober 2 and were attributable to Respondent's decision to
remedy the grievances uncovered on October 2 and thereafter
in order to forestall unionization.
Respondent's assertion that it was simply correcting errors
in the application of existing policy ignores the fact that this
was the first time that classification changes had been made
effective retroactively and employees given substantial back-
pay. Other instances of retroactive pay represented correc-
tions of clerical errors or delay in processing approved
changes.
Respondent's assertion that it was simply correcting errors
also ignores the fact that the record shows more than the
changes in classification affecting Adams, Brown, Paynter,
8 Kenneth Balthrop, Richard Dressman, Leroy Heggs, George Hope,
Kenneth Johnson, William Potter, and Arthur Ullmer.
533
and Cornelius, and more than the award of merit increases
in accordance with company policy. Of the 26 employees
listed in General Counsel's brief, 17 received classification
changes and wage increases.' This was a significantly high
number for 1 month compared to other months. Of these,
Adams, Brossart, Brown, Cornelius, Godsey, Paynter, and
Strugeon are shown to have complained about incorrect clas-
sifications at the October 2 meeting or the meeting with
McMurphy. Assuming, arguendo, that these 7 classification
changes all represented corrections of errors, what of the
remaining 10? -
Three of these 10 classification changes were clearly not
the result of the correction of errors. In the case of George-
janna Foltz, there is uncontradicted testimony that on Oc-
tober 2 she complained of what was, in effect, sex discrirmna-
tion, and Assistant Plant Manager Olberding's own
testimony indicates that her complaint set in motion an inves-
tigation that led not only to her reclassification, but also to
the reclassification of Trudy French and Mona Richardson.
Olberding took notes of the employees' complaints at the
October 2 meeting and testified as follows respecting his ac-
tions thereafter.
Q. Let me ask you, when were these classifications
made? After the meeting you attended and you wrote
down?
A. Well, this is when I, this was on second shift. I
didn't get an opportunity between that meeting and our
first shift meeting of the following day, which was the
3rd. After that meeting though, you know, we had some
production problems. After the second meeting there
were similar-not similar, there were other complaints
in there and it seemed to me at this time like there was
a problem. So at the conclusion of the second meeting,
which was held on the 3rd with the first shift, yes, I did
look at them. And then Bobbie Hicks came in also when
his shift started on second shift. And we started getting
into it then.
One of those with whom Olberding got into it was Mona
Richardson who, according to Olberding, approached 01-
berding the day after the October 2 meeting about being
reclassified. After discussions with supervisors, it was decided
to reclassify Richardson, Foltz, and French. This action
clearly resulted from the solicitation of grievances which be-
gan on October 2. These reclassifications were not corrections
of errors and were motivated with a purpose of undermining
the Union.
As to other classification changes and merit increases,
there is no direct evidence of unlawful purpose. However, in
light of the evidence that Respondent solicited employee
grievances because the employees had expressed a desire for
union representation, Olberding's admission concerning the
course of conduct he adopted following the meetings with
employees, the fact that employee grievances of the type
thereafter corrected had not been corrected before the em-
ployees sought union representation, and the fact that some
of the classification changes were clearly shown not to have
9 The personnel records show Godsey as receiving a 7-cent-per-hour
increase with his reclassification, but the parties stipulated this was incor-
rect Godsey did not receive a raise on October 2
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been attributable to the correction of errors, absent some
evidence by Respondent to explain the reason for such other
reclassification changes and merit increases during the pre-
election period, the inference is warranted, and I find, that
with the exception of the seven merit increases which con-
formed to Respondent's 90-day interval policy, the classifica-
tion changes and merit increases to the other employees
named in General Counsel's brief were unlawfully motivated.
In addition to those already mentioned, that would consist of
the classification changes and merit increases to the follow-
ing: Earl Bailey, Joel Chatman, Gerald Combs, Robert
Klaiss, Richard Lawson, David Pemberton, Ted Ryder,
Steve Shuster, and Thomas Thomas.
b. The posting of a notice of the removal of Foreman
Spiece
As noted earlier, one of thecomplaints of the employees at
the October 2 meeting with Brandon was about foreman
Doug Spiece who had been giving employees a lot of trouble.
On October 4, Respondent posted the following notice: "At
his request, Doug Spiece is being moved from his responsibil-
ity as production foreman . He has asked for a permanent
transfer and we have accepted. Doug is on leave of absence
at this time due to the illness of his father."10 The complaint
alleges that Respondent violated Section 8(a)(1) of the Act
"in posting a notice advising employees that a certain fore-
man had been removed from its Florence, Kentucky location
in accordance with employee desires, in an attempt to under-
mine the Union as the employees' representative for bargain-
ing purposes." At first blush, it appeared to me that the
gravamen of this complaint allegation was the fact of Spiece's
removal from supervision and that the posting of the notice
advising employees of that fact was part of General Counsel's
proof that the action was taken to satisfy employee griev-
ances. Upon further reflection, however, it appears that the
gravamen of the complaint is the posting of the notice. Gen-
eral Counsel's brief focuses on the posting of the notice as the
conduct violative of Section 8(a)(1) because "of the mislead-
ing aspect deceiving employees into believing that grievances
could only be resolved by actions of the Respondent not by
actions of their chosen collective bargaining representative."
While I deem the posting of the notice to be unlawful, I would
not articulate the basis of my conclusion in the way General
Counsel does.
The record indicates that Respondent has a practice of
posting notices to employees of matters such as changes in
supervision or other changes affecting employees, and Gen-
10 The foregoing is taken from a copy of the notice which was offered into
evidence by Respondent as Resp Exh 11. Objection to receipt into evi-
dence of the exhibit was made by Charging Party Godsey, and joined in by
the General Counsel, on the grounds that the exhibit was a copy and not
the original notice which had been posted, and according to Godsey's recol-
lection the original notice had not contained the phrase "at his request "
Counsel for Respondent conceded the exhibit being offered was a copy but
made no effort to account for the absence of the original. Accordingly, the
objection was sustained and Resp Exh 11 was rejected Thereafter, no
further effort was made by any of the parties to account for the absence of
the original notice, nor was any effort made to indicate precisely what the
terms of the notice were. Upon reconsideration, as Resp . Exh. 11 is a Xerox
copy of an original and was identified by Brandon as a copy of the notice
that was posted, I have concluded that it should be received in evidence and
Resp Exh 11 is hereby received into evidence.
eral Counsel conceded as much at the hearing. On its face,
the notice does not advert to employee complaints or the
organizational campaign as the reason for relieving Spiece
from his position as a foreman; rather the notice advises
employees that the change in the supervisory status of Spiece
has been effected "at his request." I nevertheless conclude
that the notice was posted in violation of Section 8(a)(1)
because I conclude the reason given in the notice for the
removal of Spiece was false, that the reason for the removal
was the employees' complaints on October 2, and that the
notice was posted in the belief that the employees would
inevitably link the removal with their complaints regardless
of the language of the notice.
According to Respondent, Spiece's removal from supervi-
sion was wholly unrelated to employee complaints . Assistant
Plant Manager Don Olberding testified that on September 28,
Spiece had been granted leave of absence to visit his ailing
father in Michigan. Prior thereto, Respondent had allegedly
been dissatisfied with Spiece's performance but had not re-
lieved him for lack of a replacement. When it became neces-
sary to grant him leave of absence, Brandon decided to relieve
him of his supervisory duties and Spiece was told this before
he left for his leave of absence on September 28. According
to Olberding, when the employees complained about Spiece
at the October meeting, Brandon told them of Spiece's leave
of absence and that, while no decision had been made as to
what he would do on his return, he would not be supervisor.
Olberding's testimony about Brandon's response was not
directly contradicted except by Godsey, who testified that
Brandon made no reply to the complainant. Unfortunately,
neither Brandon nor any of the employees present at the
meeting, other than Godsey, was examined on this point. I
conclude that Godsey's testimony on this point is the more
credible. My principal reason for so concluding is the fact
that the terms of the notice are inconsistent with the explana-
tion given by Olberding. According to Olberding, Respond-
ent was dissatisfied with Spiece's work performance and it
decided to remove him; yet, the notice stated he was removed
"at his 'request." This contradiction in Respondent's own
evidence is strong evidence that the reason given for Spiece's
removal was a false one and that the real reason was the
employees' complaints on October 2. Additional support for
a conclusion to that effect is the fact that the decision was
allegedly made on Friday, yet no notice to employees was
issued on Monday, October 1, a logical time for such a notice,
but rather the notice issued on Thursday.
Whether or not Spiece was unsatisfactory as a foreman is,
of course, not the issue. The issue is Respondent's motive.
The timing of the action, the contradiction in Respondent's
evidence, and the evidence that Respondent's response to its
employees' union activities was to remedy their grievances,
persuade me that Spiece was removed as a foreman to satisfy
employee complaints and undermine the Union. Respondent
thereby violated Section 8(a)(1) of the Act.
B. The Alleged 8(a)(3) Conduct
- Respondent manufactures fiberglass panels. They are
made in various colors and the coloring is achieved by mixing
resins with the material. In January 1974, Alan Godsey was
working in the classification of mixer on the second shift. On
LASCO INDUSTRIES, INC.
January 16, Godsey ran a batch of material in which he
admittedly used the wrong shade of green and Foreman
Hicks suspended him for the remainder of the shift and the
next work day.
Godsey returned to work on Friday and during his shift
met with Brandon, Olberding, and Hicks. According to God-
sey, he complained that-it was wrong to suspend him when
he had never been told whether his work was good or bad.
Ollberding told him he had been warned and Godsey denied
he had. Brandon told him the suspension was justified, that
Godsey was the worst mixer they had ever had. When he said
this, Godsey suggested they drop him back to another posi-
tion. Brandon said they didn't work that way. He construed
Godsey's remark as an admission he could not mix and told
Olberding to suspend him until there was an opening. Godsey
said if that was the way they were going to be he would mix
and he started back to work. Brandon then told him that
every time he made a mistake he would be suspended. The
meeting ended.
According to Godsey, when he returned to work he re-
minded Foreman Hicks that he had not warned him before
the suspension. Hicks confirmed he had not, but said that
Olberding and two others had warned him. (Olberding had
said at the meeting that he had warned him the day of the
mistake prior to the start of the shift, but Godsey denied this.)
That night Godsey ran panels calling for a color designated
as white 4.5. The order was not completed by the end of the
shift and it was completed by the first shift on Monday,
January 21.On Wednesday, January 23, Foreman Hicks told
Godsey that something had gone wrong, that the portion of
the order completed Friday night did not match in color with
the portion completed Monday morning. He told Godsey
that they were going to run a 500-pound lot to determine who
had made the error. This was done by Godsey while Hicks
watched. The product matched the product which had been
produced by the first shift. Hicks then suspended Godsey
indefinitely. Godsey asked to meet with Brandon again and
later a meeting was arranged for January 28. At that meeting,
Godsey was removed from suspension and he returned to his
mixer job on January 29.
On February 1, Olberding offered Godsey a first shift job
in maintenance which Godsey declined. Olberding also asked
Godsey to sign a paper stating he would take any job in the
plant with or without a pay cut and Godsey refused. A few
days later Godsey was transferred to shipping on the first
shift although he wanted a production job.
General Counsel contends that the two suspensions of
Godsey were discriminatorily motivated. In support of this
contention, he adverts to Godsey's prominence in the organi-
zational campaign, the absence of warnings prior to the sus-
pensions, the circumstances surrounding the error on Janu-
ary 18, the disparate treatment accorded Godsey,
Respondent's reliance on unrelated shortcomings, and re-
marks of Olberding in connection with the postsuspension
transfer of Godsey. I have carefully weighed all these factors
and am not pursuaded they are sufficient to warrant a finding
that Godsey's suspensions were discriminatorily motivated.
Insofar as Godsey's union activity is concerned, it is evi-
dent that he was one of the leading supporters of the Union
and that Respondent was aware, of than fact. Among other
things, Godsey wore a Union T-shirt at work and he was the
535
one to tell Brandon at the October 2 meeting that the Union
had filed a petition. It is true that the alleged discriminatory
suspensions occurred more than 2 months after the election
which the Union lost, but the Union filed objections to the
election and Godsey testified credibly that he was active in
soliciting employees to testify in support of the objections
both by visiting their homes and talking to them at the plant.
There is no direct evidence that Respondent had knowledge
of this, but I believe an inference of knowledge can be drawn.
The plant is not very large and it is clear that Respondent
learns quickly of what is going on. Thus, it had learned early
of the union meetings in late September, as shown by Bran-
don's interrogation of Hacker, and employees were evidently
prone to report on such matters as shown by the statements
of first shift employees to Brandon on October 2.
It is settled law, however, that union activities or member-
ship do not insulate an employee from discharge, or, as here,
suspension , for cause, and it is clear here that Godsey gave
Respondent cause for the suspensions imposed on him.
He admitted he made a mistake on January 16 and the
record supports Respondent's conclusion that he was respon-
sible for the January 18 off-color panels. The suggestion by
General Counsel that the mistake was attributable to a faulty
scale is, in my judgment, not deserving of consideration. Re-
spondent had no reason to question the accuracy of the scale
and General Counsel presented no evidence it was inaccurate.
It is also settled law that although there may exist cause for
suspension of an employee, suspension may nevertheless be
found unlawful where the evidence indicates that the real
reason for the suspension was the employee's union activity
and not his poor work performance. General Counsel would
have me apply this principle here and find the suspension
unlawful for a variety of circumstances. Thus, he points to the
evidence that the inspector graded the off-color panels Grade
A on January 18, thereby causing Godsey`to continue run-
ning the panels with the improper mixture. The record indi-
cates the inspector also made a mistake in checking the color
of the panels, but I fail to see how this avails Godsey. It was
Godsey who made the initial mistake and the inspector's
failure was in not catching the mistake. For this, he and
others responsible for not catching the mistake were repri-
manded. Godsey was suspended, but his mistake was the
greater and had been preceded by a mistake 2 days earlier:
General Counsel adverts to the fact that no employee had
ever' been suspended before for poor work performance, in-
cluding Paynter who had been replaced by Godsey because
of his poor performance as a mixer. According to Foreman
Hicks, Godsey's record was a lot worse than Paynter's. The
record does not contain Paynter's personnel file for compari-
son with Godsey's file, but Godsey's file contains several
memoranda respecting his poor work performance. One
memorandum dated August 28, 1973, reflects complaints by
Hicks about a number of costly mistakes by Godsey. Accord-
ing to a memorandum of September 7, 1973, Foreman Fort-
ner spoke to Godsey about his work performance. On Sep-
tember 19 and 26, and October 3, he failed to catalyze 500
pounds of resin . On October 30, he made two 500-pound pots
of resin that were off color. On January 7, 1974, he did not
mix enough resin to fill an order. In short, before Godsey was
ever suspended, he gave proper and sufficient cause for sus-
pension.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends the suspension came without a
warning. Godsey so testified. I do not credit him. Foreman
Hicks testified he spoke to Godsey on several. occasions and
Foreman Trainee Regg, according to a memorandum of
January 9, 1974, told Godsey that recurrenee of mistakes
could result in further disciplinary action, including dis-
charge. Regg did not testify and the memoranda in Godsey's
file had not been shown to him, but Godsey was not examined
about the memoranda at the hearing and did not therefore
dispute the accuracy of their contents. The record indicates
that Godsey last received a merit increase in December 1972.
In my judgment, the record permits of no other conclusion
than that Godsey had been warned about his work perform-
ance, and the evidence. is insufficient to support a finding of
disparate treatment.
Finally, as to the postsuspension remarks by Olberding in
connection with the transfer of Godsey, I deem them insuffi-
cient to warrant a finding that the suspensions, were dis-
criminatorily motivated. I note that there is no contention the
transfer was unlawful.
To conclude this issue, I would note that Godsey had given
cause for suspension long before January 1974, including
during the period preceding the election. No action was taken
against him. As my findings above indicate, Respondent en-
tertained sufficient animus against the Union that it commit-
ted 8(a)(1) violations. However, Respondent's tactic was to
use the carrot and not the stick. It appeared to have suc-
ceeded as of January 1974 and I fail to understand why it
would have decided to resort to the stick. I shall recommend
dismissal of the allegations respecting Godsey.
C. The Alleged 8(a)(5) Violation
The complaint alleges that since on or about October 2,
1973, the Union has been designated by a majority of the
employees in an appropriate unit" as their representative
for purposes of collective bargaining; that on October 2, the
Union demanded recognition as such representative; and that
Respondent denied recognition. Respondent admits the de-
mand and the denial.
Based on the foregoing allegations, and the unfair labor
practices of Respondent as set forth in the complaint, General
Counsel asserts that a finding is warranted that Respondent
violated Section 8(a)(5) of the Act and that a bargaining order
is appropriate pursuant to the principle of N.L.R.B. v. Gissel
Packing Co., 395 U.S. 575.
The assertion that in the context of this case Respondent's
refusal to recognize and bargain with the Union is violative
of Section 8(a)(5) of the Act may be disposed of summarily,
because since issuance of the complaint and the filing of
General Counsel's brief, the Board has held that in cases of
this type a finding of a violation of Section 8(a)(5) is not
warranted. Steel-Fab, Inc., 212 NLRB 363 (1974). Accord-
ingly, I shall recommend dismissal of the 8(a)(5) allegation.
11 The complaint alleges, Respondent stipulated, and I find, that a unit of
all production and maintenance employees, including shipping department
and truckdnvers employed by Respondent at its Florence, Kentucky loca-
tion, but excluding all office clerical employees, professional employees,
guards and supervisors as defined in the Act constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act
Although the Board has held that a finding of a violation
of Section 8(a)(5) is not warranted in cases of this type, it
continues to adhere to the proposition set forth in GisseL
supra, that in appropriate cases involving employer miscon-
duct a bargaining order may issue as part of the remedy for
the misconduct. To give effect to this proposition, it is neces-
sary to consider the Union's majority status and the serious-
ness of the employer's misconduct.
D. The Union's Majority Status
The parties stipulated that as of October 2, the date of the
demand for recognition, the unit consisted of at least 68
employees. According to Respondent, the unit should also
include George Disque and James Mann. General Counsel
would exclude Disque as a supervisor, but as I have found
that Disque is not a supervisor, I shall include him in the unit.
General Counsel would exclude Mann on the ground he
works in the same job classification as James Herzog who
Respondent agreed to exclude form the unit. Herzog is classi-
fied as a production scheduler and so is Mann. However, in
October he was a shipping clerk and a trainee for production
scheduler. I conclude the evidence does not warrant a finding
that at the time relevant herein; namely, October 2, Mann
was either a supervisor or in a job classification excluded by
the terms of the stipulated unit. Based on the foregoing, I find
that the appropriate unit on October 2 consisted of 70 em-
ployees.
In order to establish a majority in the above unit, General
Counsel introduced into evidence 40 cards, one of which had
been signed by James Mann. General Counsel disclaimed
reliance on Mann's card in view of his contention that Mann
should be excluded from the unit. However, as I have found
Mann to be in the unit and as the validity of his card has been
fully litigated, I shall give consideration to it in determining
the Union's-majority status.
All 40 cards were properly authenticated either by the
signers themselves or by a witness to its execution. Respond-
ent asserts in brief that the card of Charley Sams should not
be counted because his name is in printed rather than cursive
style. That fact is insufficient basis for invalidating an other-
wise validly authenticated card. C. A. Froedge Delivery and
Trucking Service, Inc., 172 NLRB 46 (1968).
Respondent asserts that the card of Mona Richardson is
invalid because she testified she did not date it, and that of
Alan Cornelius is invalid because he testified someone had
changed the date. The alteration in date is immaterial as
Cornelius admitted he signed the card before October 2, the
date of the demand. In any event, his card and that of Rich-
ardson bear the date stamp of Region 9 of the Board showing
that they were submitted to the Board on- October 2. They
may therefore be counted unless invalidated for some other
reason. Yazoo Valley Electric Power Assn., 163 NLRB 777
(1967), (Card of Lee Lard).
The card of William O'Reilly is challenged on the ground
he was told that his job might be in jeopardy if he did not sign.
Patterson admitted mention of the possibility of loss of jobs
in talking to employees at a meeting . He testified that he told
them that it was not improbable that employees active in the
organizing campaign would be terminated and a signed union
card would be proof of an employee' s union acitivity. O'Reil-
LASCO INDUSTRIES, INC.
ly's testimony does not conflict with this explanation and I
see no basis for invalidating the card by reason of such a
comment. The comment was not a threat , but an argument
in favor of signing . " O'Reilly's testimony was no more than
a statement of his subjective motivation , an unreliable factor
in determining the validity of cards.13
Although Respondent does not advert to this in his brief,
the record indicates that Mona Richardson and Dennis
Knarr were told by the solicitor that no one would know they
signed a card . Such statements do not invalidate their cards.
Steele Apparel Company, Inc., 172 NLRB 903, 922 (1968).
The principal attack of Respondent on the validity of the
cards is based on assertions of more general application than
the foregoing . Thus Respondent asserts, "This case is proba-
bly an N . L.R.B. first . Herein , the General Counsel seeks a
bargaining order on behalf of a union whose international
representative and principal organizer used a sawed -off-shot-
gun in connection with his solicitation of card signatures
.... Such conduct is completely intolerable and totally incon-
sistent with the purposes of the Act to promote industrial
peace and free and reasonable choice in representation elec-
tion ." This assertion is based on testimony of Alan Cornelius
that Patterson had brought a shotgun to a meeting at the
Holiday Inn which he had laid down by the table he was
sitting at, and at some point , whether after or during the
meeting is not clear, he loaded it and stated this was for his
protection , that he had been shot twice or something . Patter-
son admitted he had a shotgun at the meeting place . Accord-
ing to Patterson, the meeting was breaking up and he was
about to check out (meetings were held in his': motel room)
and he laid the shotgun by his brief case. He did not specifi-
cally deny loading it in the presence of the employees or
stating why he had the shotgun . I am very dubious about
Cornelius ' testimony . He was a thoroughly unreliable witness
as shown by his testimony that he had not read the authoriza-
tion card when it is undisputed he was a member of the
organizing committee and solicited other employees to sign
cards. I, therefore , credit Patterson 's description of the inci-
dent involving the shotgun . Apart from that, it is clear that
the presence of the shotgun forms no basis for invalidating
any cards . Cornelius admitted that Patterson did not threaten
him, that he had no reason to. His testimony that the incident
"was more or less a show of force to me" is an expression of
opinion not entitled to any weight.
Respondent 's principal attack on the validity of the cards
is that they were solicited "on the explicit or indirectly ex-
pressed representation that they [union organizers] would use
such cards only for an election . .. .
The authorization card signed by the employees in this case
reads as follows: -
I hereby accept membership in the Textile Workers
Union of America of my own free will and do hereby
designate said Textile Workers Union of America as my
representative for the purposes of collective bargaining
in respect to rate of pay, wages , hours of employment or
other conditions of employment.
72 According to Comehus , Godsey made a similar argument to him
13 N.L.R .B. v. Gissel, supra at 608
537
A card containing language such as this is generally re-
ferred to as a single-purpose unambiguous card'as to which
the rule of law has long been that it will be counted for
purposes of proving majority status unless it is proved that
the employee was told that the card was to be used solely for
the purpose of obtaining an election . This rule of law is
known as -the Cumberland Shoe doctrine,'4 and in Gissel, su-
pra p . 606, after analysis of the conflict in the circuits with
regard to this matter, the Supreme Court stated "In resolving
the conflict among other circuits in favor of approving the
Board 's Cumberland rule, we think it sufficient to point out
that employees should be bound by the clear language of what
they sign unless that language is deliberately and clearly can-
celed by a union adherent with words calculated to direct the
signer to disregard and forget the language above his signa-
ture. There is nothing inconsistent in handing an employee a
card that says the signer authorizes the Union to represent
him and then telling him that the card will probably be used
first to get an election."
It is this rationale which must be applied in evaluating the
merits of Respondent 's challenge to the validity of the cards.
In support of this challenge , Respondent elicited testimony
concerning the purpose of the cards from 16 employees. Of
these, four employees , Walter Osborne , David Pemberton,
George Arrowood , and Kenneth Johnson , can be said to have
testified that they were told that the only purpose of the card
was to obtain an election . Actually, neither Osborne nor Pem-
berton described what they were told about the purpose of the
card ; rather, both gave an affirmative answer to a leading
question by counsel for Respondent . The question to Osborne
was as follows: "Mr. Osborne , when you signed this card or
prior to your signing this card were you told that it would
have only one purpose?" The question to Pemberton was
essentially the same.
The word "only" was also injected into the testimony of
George Arrowood by leading questions , but in a somewhat
different manner. Arrowood had solicited employee Charles
White to sign a card and he was called by General Counsel
to identify the card. On cross-examination , he was asked,
without objection, what his understanding was of the purpose
of the card. He replied that it was to be used to get an election.
He testified this was what he told White , and answered affir-
matively the leading question "And that would be its only
purpose?"
I can give no probative weight to testimony elicited in this
fashion . In the cases of Osborne and Pemberton , the examina-
tion and cross-examination were so cursory that little
emerges from their testimony except the questions and an-
swers described above. The examination of Arrowood, was
more thorough and a review of his entire testimony indicates
that no one told him the only purpose of the card was to get
an election . As he testified when asked whether Patterson
said that the only purpose of the card was an election, Arro-
wood replied , "That 's all he brought up and that's all he said
about it." This is not testimony that Patterson said the only
purpose of the card was an election . Insofar as Arrowood's
representations to White are concerned , he testified he asked
White to sign a card to get enough members to get enough
majority to hold an election . He also explained to White what
14 Cumberland Shoe Corporation, 144 NLRB 1268, (1963)
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the card was and "that I thought at that time that we needed
one." As I construe this, by "one" Arrowood meant they
needed a union. He may have believed an election was neces-
sary to get a union, but he wanted a union, and an examina-
tion of his entire testimony indicates there were no represen-
tations to him designed to direct him to ignore the language
of the card, nor did he make any representations to White to
nullify the language of the card. White also testified about
being solicited by Arrowood and he did not indicate he was
told the card was only for an election. He testified concerning
his intent-in signing, but I regard such testimony as not worth
consideration.
Kenneth Johnson's testimony about the purpose of the
card was not elicited by a leading question. He testified that
Patterson told employees at a Holiday Inn meeting what the
purpose of the card was and when asked what Patterson said,
he replied "That the cards were only for like I said, the
petition, and that they would be used for no other reason."
No other witness who was not examined through leading
questions attributed such a remark to Patterson, and I do not
credit it. I am persuaded that what Johnson testified to was
his understanding rather than what he was told.
James Mann testified that he asked Patterson at one of the
meetings what the significance of the card was and that Pat-
terson replied, "The signing of the cards merely meant that
they needed a majority of the people in the plant to sign the
cards, which then they would present these cards to the
NLRB and that would merely grant them time. I
guess-or it would grant them approval by the NLRB to
present their sides or whatever, you know." Respondent con-
tends that by "merely" Patterson was representing that the
card would "only" be used for an election. But Mann's
"Merely" was not even associated with an election, it was
associated with "they needed a majority of the people in the
plant to sign cards." Mann did not use the word election at
all; it was Respondent's counsel who did. I conclude that
Mann's testimony is inaccurate to the extent that it suggests
Patterson told him and other employees present that the
cards would only be used for an election.
According to most of the witnesses, the idea projected
when they were asked to sign cards was their use to obtain
an election. Thus, when Mona Richardson was asked what
she had been told she replied she was told "that we needed
some more cards signed to get an election. . . ." Bill Watts
testified he was told "that they needed it for an election to see
if they could get a count." Ora Holbrook, Floyd Delaney,
Michael Butcher, Robert Klaiss, Dennis Knarr, William 0'-
Reilly, and James Hamilton gave testimony which is essen-
tially the same. According to all these witnesses, the only
purpose of the cards which was mentioned by the solicitors
was to .get an election. But there is a significant difference
between telling employees of only one of the two purposes for
which a card may be used and telling them it will only be used
for such purpose. As I understand the signers' testimony, the
former situation was the case here, rather than the latter. In
other words, it's not that employees were told that the cards
would only be used for an election, but that they were not told
it would be used to demand recognition.
Actually, it is not completely accurate to state that no
mention of a demand for recognition was made. Patterson did
mention to employees that a demand for recognition would
be made. According to Patterson, at the employee meetings,
I said that the card, we definitely had to have thirty
percent to petition the Board for an election. And I told
them at this time that I would not petition the Board
with, unless we had well over fifty percent and preferably
sixty percent, maybe even seventy. After saying this I
mentioned the fact to the people that we, it was
customary-that the reason I wanted over fifty percent
it was customary for us to send a demand letter for
recognition, and that ninety-nine point-nine percent of
the time the employer would not sit down and agree to
an unbiased party, you know, going over the cards and
give us recognition. It just very seldom happens. And in
that case we would like to, you know, we always give it
a shot in that direction. And I mentioned the fact that
we needed a definite clear majority to do this.
I.credit Patterson's testimony. It is not in conflict with that
of the witnesses last mentioned above. In addition, his tes-
timony is supported by evidence that at one of the meetings,
Patterson read to the employees the outline of a proposed
letter demanding recognition. At a later meeting, after de-
mand had been made, a copy of the demand letter was read
as was Respondent's reply. There is no evidence that any
employee ever protested that such action was inconsistent
with representations made to them.
It is evident in this case that the thrust of card solicitors
was on use of the cards for an election, but the cards very
clearly stated that the signer was designating the Union as his
bargaining, representative and I am loath to disregard such
clear language, absent equally clear evidence that statements
were made to employees to ignore the language of the card.
In concluding there is no such evidence here, I note that
much of the testimony came from witnesses whose grievances
were remedied or who received classification changes for the
very purpose of preventing unionization. As the Court ob-
served in Gissel, supra at 608, "We also accept the observation
that employees are more likely than not, many months after
a card drive and in response to questions by company coun-
sel, to give testimony damaging to the Union, particularly
when company officials have previously threatened reprisals
for union activity in violation of Section 8(a)(1)." (There were
no threats here, but grievances were remedied.) A companion
item of evidence on this idea is the testimony of Dennis Knarr
that about 1 week before hearing in this case, Plant Manager
Brandon posted a notice on the bulletin board that in his
opinion the only reason cards were solicited was for the pur-
pose of obtaining an election. Knarr's testimony on this point
was elicited on cross-examination by a leading question and
General Counsel did not really develop the point beyond such
a question, but neither did Respondent explore the point. It
is obvious to me that a notice such as described could well
have planted a seed that produced the testimony before me.
On the basis of the foregoing, I conclude that the record
does not support a finding that card solicitors explicitly or
indirectly represented to card signers that his card would be
used for no purpose other than to help get an election, further
I conclude that none of the cards in the case was invalidated,
by improper representations, and I find that at all times
relevant herein a majority of Respondent's employees in an
LASCO INDUSTRIES, INC.
appropriate unit had designated the Union to represent them
for purposes of collective bargaining.15
E. The Employer's Misconduct
Even though the Union had been validly designated by a
majority of Respondent's employees, Respondent's refusal to
recognize and bargain with it, without more, is insufficient
basis for recommending an order that Respondent recognize
and bargain with the Union. In order to justify such an order,
it must be shown that Respondent engaged in unfair labor
practices sufficiently serious or pervasive that the possibility
of erasing the effects of such -practices and insuring a fair
election by the use of traditional remedies, though present, is
slight, and employee sentiment once expressed through cards,
would, on balance, be better protected by a bargaining
order.16
There is really only one significant unfair labor practice in
this case, but it is one of substantial significance. I have in
mind Respondent's solicitation of employee grievances and
the correction of such grievances at the very outset of the
organizational campaign. As was pointed out earlier, one of
the major complaints of the employees was Respondent's
failure to abide by its job classification and merit increase
policy and several employees complained about this to Plant
Manager Brandon on October 2. Their complaints were
remedied forthwith, with four employees receiving retroac-
tive pay and many employees being reclassified and given
merit increases. The Board has recognized rightly that "there
are few unfair labor practices so effective in cooling em-
ployees' enthusiasm for a union than prompt remedy of the
grievances which prompted the employees' union interest in
the first place."" In my judgment, Respondent's prompt
remedy of the grievances of the employees in this case effec-
tively dissipated the Union's majority status and removed not
only for the time, but for an indefinite period of time, any
inclination employees might have to select union representa-
tion. (Only one card was signed after October 2.) In the face
of such conduct, I do not believe that a fair election could be
conducted, and that the possibility of a fair election by the use
of traditional remedies is slight. Accordingly, I shall recom-
mend that the Board issue a bargaining order requiring Re-
spondent to recognize and bargain with the Union as a
remedy for its serious unfair labor practices.
III THE OBJECTIONS
Before the Board will issue a bargaining order based on
authorization cards where there has been an election pursu-
ant to representation petition, timely objections to conduct
affecting the results of the election must have been filed and
have been found meritorious so that the election results are
set aside. Irving Air Chute Co., Inc., 149 NLRB 627 (1964).
As noted earlier, a representation petition was filed in this
case and an election was held. Thereafter, the Union filed
15 1 include in this majority the card of James Brown signed on October
4, after the demand for recognition, as it is clear the demand was a continu-
ing one
16 Gissel, supra at 614, 615.
17 International Harvester Company, 179 NLRB 753 (1969).
539
timely objections to conduct affecting the results of the elec-
tion asserting as objectionable conduct the following:
1. In the period preceding the election, the employer
unilaterally gave wage increases to a large number of
employees.
2. In the period preceding the election a large number
of employees were promised wage increases.
3. During the period preceding the election, some em-
ployees were promised promotions.
4. On the day of the election, the employer's assistant
plant manager, Don Olberding, interrogated a number
of employees in regard to their union position.
Extensive discussion of the foregoing objections is not nec-
essary. As to Objection 4, I shall recommend that it be over-
ruled because no evidence was submitted to support it.
As to Objections 2 and 3, no evidence was adduced of any
express promises of either wage increases or promotions.
However, as my findings above indicate, on October 2, Plant
Manager Brandon, and again in mid-October, Industrial Re-
lations Director McMurphy, solicited employee grievances
under circumstances whereby wage increases and promotions
(that is, change in job classifications) were implicitly pro-
mised. Based on the analysis given above in connection with
the complaint allegations concerning the solicitation of griev-
ances, I conclude that Respondent implicitly promised wage
increases and promotions and find merit to Objections 2 and
3 and shall recommend that they be sustained.
As to Objection 1, it is clear that many employees were
granted wage increases during the preelection period under
the guise of classification changes and that such wage in-
creases were unlawful for reasons given above. Accordingly,
I shall recommend that Objection 1 be sustained.
In accordance with the foregoing, I shall recommend that
the election be set aside, and in view of the recommendation
that bargaining order be issued, I shall recommend that the
petition for election be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with its operations described herein,
have a close, intimate 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 of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act, including, for reasons set forth above,
a recommendation that Respondent be ordered to recognize
and bargain with the Union as the representative of its em-
ployees to remedy the serious unfair labor practices which it
committed by which it has rendered the possibility of holding
a fair election slight.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Lasco Industries, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Textile Workers Union of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees, including
shipping department and truckdrivers, employed by Re-
spondent at its Florence, Kentucky, location, but excluding
all office clerical employees , professional employees guards
and supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Textile Workers Union of America, AFL-CIO-CLC, is
the exclusive representative of the employees of Respondent
in the unit described in paragraph 3 above within the meaning
of Section 9(a) of the Act.
5. By soliciting employee grievances in a manner and under
circumstances implying that employees did not need a union
to redress their grievances and by granting merit increases
and job classification changes, including retroactive pay, to
employees, and by removing a supervisor from his position
because of employee complaints and posting a notice of its
action, for the purpose of inducing employees to withhold
their support form, or to cease giving assistance to the Union,
Respondent engaged , and is engaging , in unfair labor prac-
tices within the meaning of Sections 8(a)(1) and 2(6) and (7)
of the Act.
6. The refusal of Respondent to recognize and bargain with
the Union on the basis of authorization cards did not consti-
tute a violation of Section 8(a)(1) and (5) of the Act.
7. General Counsel has not established by a preponderance
of the evidence that Respondent violated Section 8(a)(1) and
(3) of the Act by suspending Alan Godsey.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1ff
Respondent, Lasco Industries, Inc., its officers, agents,
successors and assigns , shall:
1. Cease and desist from:
(a) Soliciting employee complaints and grievances and im-
pliedly promising to remedy such complaints and grievances
in order to induce employees to withhold support from, and
to cease giving assistance to, Textile Workers Union -of
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
America, AFL-CIO-MC, or any other labor organization.
(b) Granting employees wage increases and classification
changes in order to induce them to withhold their support
from, and to ,cease giving assistance to, the above-named
Union, or any other labor organization.
(c) Correcting employee grievances by removing supervi-
sors from their positions in response to employee complaints
and notifying employees of such action in order to induce
employees to withhold their support from, and to cease giving
assistance to, the above-named labor organization, or any
other labor organization.
(d) In any like or related manner interfering with , restrain-
ing, or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist, the above-named
labor organization, or any other labor organization, to bar-
gain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act or to refrain from any or
all such activities.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Upon request, bargain collectively with Textile Work-
ers Union of America, AFL-CIO-CLC, as the exclusive rep-
resentative of all employees in the unit described above, and,
if an understanding is reached , embody such understanding
in a signed agreement.
(b) Post at its Florence, Kentucky, plant copies of the
attached notice marked "Appendix."19 Copies of said notice
on forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from receipt of this Decision as to what steps
have been taken to comply herewith.
As to Case 9-RC-10310, it is recommended that Objection
No. 4 be overruled, that Objections 1, 2, and 3 be sustained,
and that the election be set aside and the petition be dis-
missed.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint not hereinabove found to have been supported by
the evidence be and they hereby are dismissed.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."