Quinn Co.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 795 (N.L.R.B. 1984)

' QUINN CO

795
Quinn Company and Operating Engineers, Local
Union No. 3 of the International Union of Op-
erating Engineers, AFL-CIO. Case 32-CA-
5228
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 27 October 1983 Administrative , Law Judge
Jay R. Pollack issued the attached decision: The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, the Respondent
filed cross-exceptions and a supporting brief, and
the Charging Party filed a brief in response to the
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, 1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Quinn Com-
pany, Fresno and Salinas, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 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
DECISION
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at Monterey, California, on June 30,
July 1, and August 2, 1983. Pursuant to a charge filed
against Quinn Company (Respondent) on February 7,
1983, by Operating Engineers, Local Union No. 3 of the
International Union of Operating Engineers, AFL-CIO
(the Union), the Regional Director for Region 32 of the
National Labor Relations Board issued a complaint and
notice of hearing of February 28, 1983, alleging in sub-
stance that Respondent engaged in certain violations of
Section 8(a)(1) and (5) of the National Labor Relations
Act, 29 U.S.C. § 151 et seq. Specifically, the General
Counsel alleges that Respondent's supervisors interrogat-
ed employees about their union sentiments, solicited em-
ployees to circulate, and themselves circulated, decertifi-
cation petitions, and impliedly promised better benefits if
employees abandoned the Union. Respondent filed an
answer denying the commission of any unfair labor prac-
tices and affirmatively alleged that litigation of the al-
leged unfair labor practices was barred by a settlement
agreement approved by the-Regional Director.
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. On the entire
record, from my observation of the demeänor of the wit-
nesses, and having considered the posthearing briefs, I
make the following
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
Respondent is a California corporation with offices
and places of business in Fresno and Salinas, California,
where it is engaged in the sale and service of heavy me-
chanical equipment. During the 12 months prior to issu-
ance of the complaint, Respondent purchased and re-
ceived goods or services valued in excess of $50,000 di-
rectly from suppliers located outside the State of Califor-
nia. Accordingly, Respondent admits and I find that it is
an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act. •
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As mentioned earlier, Respondent is engaged in the
sale and service of heavy mechanical equipment at its fa-
cilities in Fresno and Salinas. Since at least 1970, the
Union ,ha§ represented Respondent's employees at both
the Fresno and Salinas facilities in one bargaining unit.'
The last collective-bargaining agreement 'between Re-
spondent and the Union expired on November 22, 1982.
During early November 1982, certain of Respondent's
employees circulated a petition seeking to oust the Union
as the bargaining representative of Respondent's employ-
ees. On November 8, Respondent received petitions
signed by a majority of the employees in the bargaining
unit stating that they no longer wished to be represented
by the Union. The following day Respondent withdrew
recognition from the Union On November 12, the Union
wrote Respondent claiming that a majority of the em-
ployees had signed authorization cards on behalf of the
Union and requesting that Respondent negotiate for a
1 The parties stipulated that the following unit of Respondent's em-
ployees constitutes a unit appropnate for the purposes of collective bar-
gaining within the meaning of Sec 9(b) of the Act
All full-time and regular part-time mechanics, parts men, welders,
utility men and Janitors employed by Respondent at its Fresno and
Salinas, California facilities, _excluding all office clerical employees,
confidential employees, sales emplOyees, professional employees,
guards, and supervisors as defined in the Act
273 NLRB No. 107
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
succeeding contract. That same date, the Union filed a
petition in Case 32-RC-1736, requesting a representation
election, and an unfair labor practice charge in Case 32-
CA-5035, alleging that Respondent had committed
unfair labor practices in soliciting the employee petitions.
On December 15, a petition was filed in Case 32-RD-
452 by Leon Brown, an employee at Respondent's
Fresno facility, on behalf of Respondent's employees
seeking to decertify the Union.
In January 1983, the Union and Respondent attempted
to amicably settle the issues raised by the representation
petitions and the unfair labor practice charge. The Union
agreed to withdraw the charge in Case 32-CA-5035 and
not to refile the charge (until a consent election could be
held). The parties further agreed to consent to a Board-
conducted election to resolve the question concerning
representation The Union stated that this settlement was
contingent upon Respondent refraining from any further
unfair labor practices. On January 12, 1983, the Regional
Director approved the Union's withdrawal of the charge
and approved a Stipulation for Consent Election calling
for an election to be held On February 10, 1983. On Feb-
ruary 7, 1983, the Union filed the instant charge alleging
violations of the Act covered by the withdrawn charge
and also violations of thC Act allegedly occurring after
the charge was withdrawn. Based on this charge, the Re-
gional Director indefinitely postponed the scheduled
election. On March 28, 1983, the Regional Director,
based on the allegations of the instant complaint, dis-
missed the representation petitions.
Within this factual background, the General Counsel
contends that Respondent committed certain unfair labor
practices in soliciting employees to decertify the Union,
including directly dealing with employees and promising
benefits in order to induce employees to abandon union
representation. Further, the General Counsel alleges that,
after withdrawal of the first charge, Respondent, in cam-
paigning for the scheduled election, continued to unlaw-
fully promise benefits in order to induce employees to
,ote against union representation. As mentioned earlier,
Respondent -COntends that its settlement of 'the first
charge, approved by the Regional Director, bars litiga-
tion of the instant case. Further, ResPondent raises a de-
fense that the conduct of Gary Molezzo, shop foreman at
Salinas., and Gene Harper, parts manager at Salinas, in
support of the decertification campaign, is not imputable
to Respondent beCause both Molezzo and Harper are
bargaining unit employees and members of the Union.
B.- The Decertification Campaign
Leon Brown, a parts man at Respondent's Fresno fa-
cility, testified that there "had always been talk among
the employees about getting rid of the union" and that
he and Joe Harrah, another Fresno employee, increasing-
ly discussed the matter during the summer of 1982.
Brown attributed these discussions to concerns over
recent agreements between the Union and two competi-
tors of Respondent, one in Sacramento and the other in
Stockton. According to Brown, the employees at both
companies received pay cuts as a result of the newly ne-
gotiated union agreements. Brown heard that Harrah
was attempting to decertify the Union in September but
Brown neither saw nor signed a decertification petition
at that time. However, in October, Brown contacted the
Board's Oakland Regional Office and, based on -advice
received from Board personnel, composed and circulated
an employee petition Brown used company paper and
personnel to type the petition which he circulated on
company time. Brown circulated the petition between
November 1 and 8. There is no evidence that Respond-
ent encouraged Brown's decertification activities, or even
that Respondent was aware - of such activities until after
Brown had obtained the signatures of several employees
November 1 and 2.
Prior, to his circulation of the petition, Brown dis-
cussed "getting rid of the Union" with Gary Molezzo,
shop foreman, and Gene Harper, parts manager, both of
whom are employed at Respondent's Salinas facility.
After circulating the petition in Fresno, Brown called
Harper and asked if Harper would Circulate a Petition in
Salinas After Harper agreed to do so, Brown dictated
the wording of the petition to Harper over the tele-
phone. Harper handwrote a petition and, with Molezzo's
assistance, he circulated the petition at the -Salinas facili-
ty.
C. The Employee Meetings
Blake Quinn, Respondent's president, credibly testified
that, in late October and early November, conversations
concerning the Union and decertification were keeping
"a lot of work" from getting done. 2 Dan Cunningham,
Respondent's vice president, informed Quinn that a - de-
certification petition was being circulated at the Fresno
facility and that the employees had been questioning
their supervisors about Respondent's health plan and
profit-sharing plan. Based on this information, Quinn de-
cided to call a meeting for all bargaining unit employees.
Thus, on November 5, mandatory meetings for all bar-
-gaining unit employees were conducted at both the
Fresno and Salinas facilities.
At the Salinas meeting, Quinn read a prepared state-
ment which stated in pertinent part.
Recently there has been a lot of discussion in the
shop concerning the upcoming expiration of the
contract between Quinn Company and the Operat-
ing Engineers and what will happen when the con-
tract expires.
By law an employer must bargain with a union
so long as that union represents a majority of the
employees Quinn Company has not received any
evidence which demonstrates that the union does
not enjoy majority status even though there have
been rumors that some employees no longer wisll to
be represented by the union Quinn .Company in-
tends to abide by the law and bargain with the
union concerning entering into a new contract so
long as the union represents a majority ,of employ-
ees.
As to what to expect in upcoming negotiations,
Quinn Company cannot bypass the union and nego-
. 2 This testimony was corroborated by Brown
QUINN CO 797
tiate directly with employees as that would be an
unfair labor practice Therefore our proposed re-
negotiations of the Contract will be presented to the
union at the bargaining table.
If anyone has any questions 'concerning this
matter please feel free to aik me, your .union repre-
sentative or any member of the NLRB. If anyone
wishes to contact the NLRB in Oakland their
phone number is (415) 273-7200.
Quinn then said he had heard through the "grapevine"
that the employees had "some questions" and that he
was there to answer three of those questions Quinn then
listed three topics: decertification, Respondent's profit-
sharing plan, and Respondent's 'health and welfare plan.
Quinn then turned the meeting over to Cunningham.
Cunningham wrote the NLRB's phone number on a
chalk board along with the figures 30 percent and 50
percent. Cunningham explained that if 30 percent of ,the
employees signed a decertification petition, the NLRB
would conduct an election and if 50 percent of the em-
ployees signed such a petition, Respondent would no
longer have to bargain with the Union.
Cunningham emphasized that he could make no prom-
ises. He then explained "in some detail the basic wording
of the profit-sharing plan." Cunningham told the employ-
ees that to be eligible • for the Company's profit-sharing
plan an employee had to be 25 years of age (soon to be
reduced to 21 years) and have worked for the Company
for at least 3 years. He then gave an example of two em-
ployees who had recently left Quinn Company after 10
and 15 years, respectively. Cunningham said that had the
two employees been covered by the Company's profit-
sharing plan the 10-year employee would have retired
with $30,000 and the 15-year employee with $70,000.
Cunningham explained that employees covered by the
Union's pension plan were not eligible for the Compa-
ny's profit-sharing plan.3
As to health and welfare, Cunningham compared Re-
spondent's plan to the Union's plan -and concluded that
they were "equal to or almost equal to"- each other. Cun-
ningham added that 'Respondent was changing carriers
so details about Respondent's new plan would not -be
available until some time later.
Both Quinn and Cunningham' emphasized that they
could make no promises in regard to the profit-sharing
or health and welfare plans Moreover, both Quinn and
Cunningham refused to respond to certain questions be-
cause their answers might be construed as promises.
It is undisputed that the Company's profit-sharing 'plan
has been in effect for • nonunion employees since about
1965. The plan provides in pertinent part.
'Notwithstanding the foregoing, an employee for
whom the Company is required to make or making
3 The evidence is not clear as to what Cunningham actually said con-
cerning the disqualification under the plan of employees covered by a
pension or retirement plan under a collective-bargaining agreement The
best I can ascertain from the vague testimony of the , employee witnesses
is that Cunningham made it clear that employees could not be covered
by the Union's pension plan and the Company's profit-sharing plan at the
same time
contributions to any pension or other retirement
plan (other than this plan and social security) pursu-
ant to a collective-bargaining agreement or agree-
, ments on the date when such employee would oth-
erwise be eligible to become a participant shall not
become a participant so long as he remains subject
to such condition but shall become a participant im-
mediately thereafter if such employee ceases to be
an employee for whom the Company . is required to
make or makes such contributions.
On November 9, Respondent called another mandato-
ry employee meeting at the Salinas facility. Rick Greger-
son, shop manager, read a prepared statement in which
he announced that Respondent had been presented with
a decertification petition signed by a majority of its em-
ployees Gregerson said that based on the petition Re-
spondent would no longer bargain with the Union. Gre-
gerson thanked the employees for their support and said
that the petition would be forwarded to the NLRB
In anticipation of the election scheduled for February
10, 1983, Respondent held a mandatory meeting for em-
ployees in late January or early February. At this meet-
ing, Respondent distributed to employees a seven-page
document concerning Respondent's benefits. 4 The seven-
page handout included one page which was personally
tailored to the recipient employee and which compared
the employee's estimated retirement benefits under Re-
spondent's profit-sharing plan and the employee's esti-
mated retirement benefits under the Union's pension
plan. The personalized page for employee John Larsen
estimated that if Larsen worked 35 years under the union
pension plan, Respondent would contribute $67,184 on
Larsen's behalf, the contribution would experience zero
growth and Larsen's pension at age 65 would be $1,411 a
month. Larsen would not be able to withdraw a flat sum
on retirement. The document showed two alternatives
under. Respondent's profit-sharing plan. The first alterna-
tive, based on 35 years of work, showed a company con-
tribution . of $61,880. The contribution would grow •to
$701,301. and, at age 65, Larsen's monthly, pension would •
be $9,159 per month. Instead of taking a monthly . pen-
sion, Larsen could withdraw a lump sum of $763,181.
Under the second alternative, which was also based on
35 years of employment,- the Company would contribute
$125,230 which would grow to $1,419,262. AC age 65,
Larsen would receive $18,536 a month or a lump sum
payment of $1,544,492.
The handout also compared Respondent's health and
welfare plan with ' that of the Union, and compared the
yearend value of the profit-sharing plan with that of the
Unon's pension fund. There is no . contention that any of
the information contained in the document was false..
4 The handout included the following disclaimer
Attached is information concerning the present benefits for em-
• ployees both for in the bargaining unit and for Quinn Company non-
union employees
In viewing these calculations, bear in mind that all the law permits
us to do is to compare, or give you information which you can use
to compare present benefits The law expressly prohibits the employ-
er from making any promises in this period before an election
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on its belief that Respondent's distribution of the
handout constituted an unfair labor practice, the Union
filed the instant charge on February 7, 1983, and request-
ed that the Regional Director postpone the scheduled
election.
D. Harper's Participation
Gene Harper is parts manager at Respondent's Salinas
facility. At all times material herein, Harper has been
covered under the terms of the collective-bargaining
agreement and has been a member of the Union. Harper
assigns, directs, reviews, and evaluates the work of the
seven employees in his parts department. Harper inter-
views job applicants and narrows down the applicants to
one or two. The remaining applicant or applicants are
then interviewed by the shop manager Harper recom-
mends who shall be hired and his recommendations have
always been followed. Further, Harper grants employees
time off and authorizes overtime. Finally, Harper is re-
sponsible for written evaluations of parts department em-
ployees. Accordingly, I find that Harper is a supervisor
within the meaning of the Act. As will be discussed,
infra, the issue is whether, in view of Harper's Inclusion
in the bargaining unit, his- conduct in support of the de-
certification petition can be imputed to Respondent.
- Harper testified that he went to each of the people
under his supervision and explained that, because he de-
sired decertification, he had signed the petition Harper
further explained that it was up to each employee to
decide whether to sign the petition. Harper denied talk-
ing with the store manager or the representatives of
management about the petition. Jess Barba, an emPloyee
and shop steward, testified that when he refused Harp-
er's request to sign the petition, Harper responded that
Barba's refusal put Barba in a "bad light." Although
Harper did not specifically address Barba's claim, he did
deny making any threats or promises Having observed
Harper's demeanor and having considered the corrobora-
tive . testimony of employees Larry Shepherd, Frank Shil-
lak, and Daniel White, I credit Harper's testimony over
that of Barba. Shepherd, a parts man under Harper's Su-
pervision, testified that Harper informed him that a de-
certification petition was "going around." According to
Shepherd, Harper said he did not want to influence
Shepherd's decision and that the decision to sign the pe-
tition was entirely up to Shepherd. Shepherd further tes-
tified that Harper did not make any promises or any
threats. Shillak and White, two Other employees super-
vised by Harper, similarly testified that Harper indicated
a personal decision to sign the petition but that the em-
ployees could decide for themselves whether to sign the
petition. Shepherd, Shillak, and White all signed the peti-
tion on November 5, 1982.
As mentioned earlier, Brown had begun circulation of
an employee petition at the Fresno facility on November
1. Harper and Molezzo did not begin circulation of a pe-
tition at the Salinas facility until after the employee
meeting of November 5.
E. Molezzo's Participation •
Gary Molezzo is the shop foreman at Respondent's Sa-
linas facility and is in charge of 12 mechanics At all
times material, Molezzo has been ineluded in the bargain-
ing unit and a member of the Union. Molezzo does little,
if any, mechanical work, and spends most of his time di-
recting and assigning mechanics' work. Molezzo prepares
evaluaiions of mechanics for employee personnel
records. In order to be promoted to field mechanic, the
highest paid mechanics' classification, an employee must
have Molezzo's recommendation for the job. Molezzo
interviews .job applicants and makes hiring recommenda-
tions to the shop manager. Molezzo's recommendations
have always been followed In addition, Molezzo has au-
thorized time off for employees and has effectively rec-
ommended discipline for employees. Accordingly, there
is little doubt that Molezzo is a supervisor within the
meaning of the Act. However, as stated above, the issue
is whether, in view of-Molezzo's inclusion in the -bargain-
ing unit, his ,conduct in support of the decertification
campaign can be imputed to Respondent.
In September 1982; prior to the circulation of the de-
certification petitions at either the Fresno or Salinas fa-
cility, Molezzo asked employees about his desire to "get
rid of the Union." Molezzo- testified that he was "not too
fond of the Union" because, in his view, his mother did
not receive sufficient benefits upon the death of his
father. Molezzo discussed this dissatisfaction with the
employees. The General Counsel concedes, on brief, re-
garding Molezzo's conduct in September and October,
"as an individual member of the bargaining unit Molezzo
had a right to participate in decertification activity,
absent evidence that he was acting on behalf of Respond-
ent " However, the General Counsel alleges that Molez-
zo's conduct, associated with the decertification petition
in November, violated the Act, on the ground that Mo-
lezzo was acting on behalf of Respondent.
John Larsen, a mechanic supervised by Gary Molezzo,
testified that Molezzo walked up to Larsen, placed the
petition containing employee signatures in front of
Larsen and said, "No, huh?" Larsen answered `No."
Loren Herr, another employee under Molezzo's supervi-
sion, testified that Molezzo asked him to sign the peti-
tion. Herr asked Molezzo if the employees would "be
able to get a raise" without the Union. According to
Herr, , Molezzo answered that Respondent had always
been !Tan- in the past" and there was no reason would
"change the policy" in the future.
Norman Clatterbuck, a mechanic at the Salinas facili-
ty, testified that Molezzo, his supervisor, presented the
petition to him, asked Clatterbuck to read it and asked
Clatterbuck to sign if he wanted to do so. Clatterbuck
testified that Molezzo made no threats nor promises.
Clatterbuck signed the petition. Richard Dampier and
Ted McLaughlin, mechanics at the Salinas facility, simi-
larly testified that Molezzo, without making any threats
or promises, asked them to sign the petition. Both Dam-
' pier and McLaughlin declined to sign the petition to
which Molezzo made no response.
Charles "Skip" Bates, a former employee of Respond-
ent, testified that, while he was employed by Respond-
QUINN CO 799
ent, Molezzo was both his friend and supervisor Bates
and Molezzo often ate lunch together and debated the
Union, decertification, and related matters. Molezzo ex-
pressed displeasure with the Union because Molezzo's
mother had received an allegedly inadequate death bene-
fit. According to Bates, Molezzo claimed on more than
one occasion that the Union was "holding back Bates
and that Bates would be better off without the Union."
According to Molezzo, if Respondent was not required
to pay lesser skilled employees an inflated wage rate it
would be able to pay more skilled employees, like Bates,
a better pay rate. Bates argued that Respondent could
not entirely be trusted and that there was safety in the
employees acting together as a group.
Bates further testified that, some 4 months prior to the
decertification petition, Molezzo, while on the telephone
to someone at the Fresno facility; asked Bates whether
the employees knew that "the Company can save $5,000
on each one of you if you weren't union?" Bates an-
swered, "Yeah, right out of my pocket." On another oc-
casion, Molezzo asked Bates to sign a decertification pe-
tition but Bates simply told Molezzo "where to put it."
While Molezzo denied telling Bates that management
could save $5,000 per employee or that Bates could
make more money without the Union, I have decided to
credit Bates' testimony over that of Molezzo. Bates ap-
peared to be a forthright and sincere witness Further,
Bates, a former employee, had little to gain by his testi-
mony; rather, he ran the risk of unnecessarily alienating
his friend Molezzo.
F. Quinn 's Conversation - with Bates
Bates further testified that he had a conversation with
Blake Quinn, Respondent's -president, -shortly after the
employee meeting of November 5. According to Bates,
he told Quinn that he liked the Union and believed him-
self to be better off with the Union. Quinn said the
Union was "holding back" Bates and that, without the
Union, Bates could make more money because Respond-
ent would not have to pay "as much" to employees less
talented than Bates.
In early January 1983, Quinn again discussed the
Union with Bates. According to Bates, Quinn said he un-
derstood that Bates was supporting the Union but that
Quinn would "appreciate" Bates' support, if Bates could
"swing over" to Respondent's side in the election. Quinn
repeated his claim that the Union was holding Bates
back and that Bates, because of his skills, could make
more money without the Union. Quinn acknowledged
that he had at least one and perhaps more than one con-
versation with Bates. However, he denied that he told
Bates that the employee could receive better wages with-
out the Union or that Bates was being held back by the
Union. As discussed above, I found Bates to be a credi-
ble witness. In addition, Quinn could not recall the sub-
stance of his conversation with Bates. Accordingly, I
credit Bates' testimony over that of Quinn
G. Analysis and Conclusions
1. The settlement agreement
It is well established that a finding of an unfair labor
practice cannot be based on presettlement conduct unless
there has been a failure to comply with the settlement
agreement or subsequent unfair labor practices have been
committed. See, e.g., Hollywood Roosevelt Hotel Co, 235
NLRB 1397 (1978); Northern California Council of Labor-
ers (Joseph's Landscaping Service), 154 NLRB 1384
(1965), enfd. 389 F 2d 721 (9th Cir. 1968) A settlement
disposes of all issues involving presettlement conduct
unless previous violations of the Act were unknown to
the General Counsel, not readily discoverable by investi-
gation, or specifically reserved from the settlement by
the mutual understanding of the parties. Hollywood Roo-
sevelt, supra; Steves Sash & Door Co., 164 NLRB 468
(1967), enfd. as modified in other respects 401 F.2d 676
(5th Cir. 1968). However, the Board has also consistently
held that where a charging party requests that a charge
be withdrawn, and the Regional Director approves that
request, the allegations contained in the withdrawn
charge may nonetheless be realleged and litigated. See,
e.g., Gulf States Manufacturers, 230 NLRB 558 (1977),
enf. denied 598 F.2d 896 (5th Cir. 1979), John F." Cuneo
Co., 152 NLRB 929 (1965); Zimnox Coal Co, 140 NLRB
1229, 1230, 1237 (1963), enfd. 336 F 2d 516 (6th Cir.
1964). In the absence of a Regional Director signing or
approving a settlement agreement, any such agreement
between a charging party and a respondent which result-
ed in the withdrawal of the charge is viewed by the
Board as a private arrangement which does not estop the
Regional Director from proceeding on any new charges
alleging the same conduct as the withdrawn charges. Id.
Applying the above legal principles, I find that while
the Regional Director approved the Union's withdrawal
request, he did not enter into or approve the private
agreement between the parties. Hollywood Roosevelt,
supra, relied on by Respondent, involved a valid settle-
ment agreement approved by a Regional Director which
provided that the employer take certain remedial action.
In the instant case, the Regional Director merely ap-
proved withdrawal of the charge, apparently to expedite
the election process. The Regional Director made no at-
tempt to resolve the unfair labor practices. Accordingly,
I find that the Regional Director was not estopped from
issuing complaint on the instant charge.
2. The conduct of Molezzo and Harper
While an employer is usually liable for the conduct of
its supervisors, an exception exists where the supervisor
is also a bargaining unit member. Where supervisors are
members of the bargaining unit, they may lawfully solicit
signatures on a decertification petition so long as there is
no evidence that the employer "encouraged, authorized
or ratified the conduct" or that the employer "acted in
such a manner as to lead employees reasonably to be-
lieve" that the supervisors were acting on the behalf of
management. A. T & K Enterprises, 264 NLRB 1278
(1982); Times-Herald, Inc., 253 NLRB 524 (1980) See
also Montgomery Ward & Co., 115 NLRB 645, 647
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied
355 U.S. 829 (1957).
There is no dispute that Molezzo and Harper were in-
cluded in the bargaining unit and covered by the last col-
lective-bargaining agreement between the Union and Re-
spondent. Notwithstanding that Molezzo and Harper are
supervisors within the meaning of the Act, for the fol-
lowing reasons I find that their conduct cannot be imput-
ed to Respondent.
There is undisputed evidence that Molezzo had strong
personal reasons for favoring decertification and that he
communicated these reasons to other employees on many
occasions prior to the decertification campaign. Molezzo
was upset that his mother received only a small sum
upon his father's death and he communicated that fact to
other employees Similarly, Harper told employees that
he "personally" favored decertification but that the deci-
sion to sign was entirely up to them. Leon Brown, em-
ployed at the Fresno facility, discussed getting rid of the
Union with Molezzo and Harper prior to November.
After Brown began circulating a petition on November 1
at the Fresno facility, he spoke to Harper about having a
petition circulated at the Salinas facility. The decertifica-
tion process had begun prior to Respondent's mention of
decertification at the meetings of November 5. In fact,
Respondent held the employee meetings of November 5
in response to the activities of the unit employees at the
Fresno facility. Thus, the fact that Molezzo and Harper
circulated the decertification petition after Respondent
mentioned decertification at the Salinas employee meet-
ing does not raise an inference that Respondent encour-
aged, authorized, or ratified their conduct. Nor do I find
that Respondent caused employees to reasonably believe
that Molezzo and Harper were acting on behalf of Re-
spondent in circulating the decertification petition.
Rather, I find that under the circumstances of this case
the conduct of Molezzo and Harper, as bargaining unit
members, cannot be imputed to Respondent. According-
ly, I shall recommend dismissal of those allegations of
the complaint which allege unlawful statements by Mo-
lezzo and Harper.
. 3. The employee meetings
In the absence of union animus, an employer does not
violate the Act by providing accurate information re-
garding the mechanics of decertification, in response to
questions from its employees. GAF Corp., 195 NLRB 169
(1972). Similarly, an employer may give its employees
advice about how to withdraw support from a union, if
the employees have, on their own initiative, requested
such advice. Tartan Marine Co., 247 NLRB 646 (1980);
Payless Drug Store, 210 NLRB 134 (1974). The General
Counsel, relying on Craftool Mfg. Co., 229 NLRB 634
(1977), argues that Respondent violated the Act because
its remarks concerning decertification were unsolicited
and not the result of employee questions. The Craftool
case, however, is not helpful because, in that case, the
employer suggested a decertification petition before the
employees took independent action on their own. More-
over, the employer in Craftool advised the employees
concerning tactics and instructed them to return the peti-
tion to him.5
In the present case, die decertification campaign clear-
ly originated with the employees and was well under-
way, at least in the Fresno facility, before Respondent
made its remarks. More importantly; the decertification
activity was disrupting productivity at the Fresno facility
and Respondent sought to minimize the problem by re-
ferring employee questions to the Board's Regional
Office. Thus, in this case, it cannot be said that Respond-
ent's remarks instituted or 'directly assisted the decertifi-
cation drive.. Respondent told the employees that there
had been rumors and questions about decertification. It
then simply informed employees that it would not cease
bargaining with the Union based on a decertification pe-
tition supported by 30 percent of the unit employees but
that, if a majority petitioned to decertify, Respondent
would no longer have to bargain with the Union. The
employees were then given the Board's telephone
number. The giving of Such information, unaccompanied
by any threat of reprisal or promise. Of benefit, cannot be
found to be violative of the Act. ,
In my view, the General Counsel's argument ignores
the fact that the' Fresno employees' were included in the
bargaining unit. The General Couniel argues that "no
employee in Salinas' asked at the meeting [or before]
about decertification; profit sharing, or about Respond-
ent's health plan." -However, Respondent's employees at
Fresno were taking ' worktime to discuss these matters
and Respondent chose to minimize this problem by call-
ing an employee meeting at Fresno. It is only logical that
Respondent would hold a similar meeting with its Salinas
employees. The employees from both facilities were in-
cluded in the bargaining unit, had telephonic contact
with each other, and were similarly affected by these
matters.
The General Counsel does not dispute the accuracy of
Respondent's remarks concerning the Company's profit-
sharing plan Rather, the General Counsel argues .that
Respondent implied that the employees would get the
Company's klan only if they decertified the Union. Fur-
ther, the General Counsel argues that the discussion of
the profit-sharing plan, when "viewed in the context of
Respondent's prior unfair labor practices," constitutes
direct dealing in violation of Section 8(a)(1) and (5) of
the Act.
As discussed 'above, the employees were told that they
could not be covered simultaneously by both the Union's
pension plan and the Company's profit-sharing plan. At
the same- time, the employees were warned that there
were no "guarantees" or "promises." Considering the
number of years the Company's plan had been in effect,
the employees could reasonably discount the warning
against "guarantees" and conclude that the plan would
continue in existence if they withdrew their support from
the Union. , -
Section 8(c) of the Act states that the expression of
"any views, argument, or opinion" shall not be evidence
5 For other cases in which the employer 'titillated the decertification
or repudiation activities, see Texas Electric Coop, 197 NLRB 10, 14-15
(1972), and Pembek Oil Corp, 165 NLRB 367, 374-375 (1967)
QUINN CO 801
_
of an unfair labor praCtice so long as such expression
contains "no threat of reprisal or force or promise of•
benefit." Moreover, an employer May make a prediction
as to the precise effects he r believes unionization will
have on his company so' long as' the prediction is "care-
fully phrased on the basis of 'objective fact to carry an
employer's belief as to demonstrably probable conse-
quences beyond his control." NLRB v. Gissel Packing
Co., 395 U.S. 575, .618 (1969).
An employee benefit plan which restricts coverage to
unrepresented employees is per se violative .of. Section
8(a)(1) of the Act, regardless of whether the employer
adds to the misconduct by implementing the restriction
or exploiting it during an Organizing campaign. See, e.g.,
Niagara Wires, Inc., 240 NLRB 1326, 1328(1979); Green-
brier Hotel, 216 NLRB 721, 727 (1975). In Belcher Towing
Co., 265 NLRB .1258 (1982), , the Board found that an em-
ployer violated Section 8(a)(1) by implying that company
benefit plans would be forfeited if employees voted for
the union. The employees' benefits booklet in the Belcher
Towing case stated that employees could not participate
in the "plans if they were 'Covered by a collective-bargain-
ing agreement In addition the employer fold employees
that they would "lose" the benefit plans' if the union
came in. These statements were found to be misrepresen-
tations of the eligibility requirements of one plan which
lawfully excluded employees from that benefit if they
were covered by collective-bargaining agreement provid-
ing for the same or similar benefit.
On the other hand, the Board has approved benefit
comparisons under a number of circumstances. Absent
threats of reduction of benefits or promise of increased
benefits, benefit comparisons are permissible campaign
techniques which fall within the bounds of free speech
permitted by Section 8(c) of the Act See, e.g., Thrift
Drug Co., 217 NLRB 1094 (1975); Orchard Corp. of
America, 170 NLRB 1297 (1968); American Thread Co.,
101 NLRB 1306, 1324 (1952).
Applying the above principles to the facts of this case,
I find that Respondent indicated to employees that they
could not be covered by the Union's pension plan and
the Company's profit-sharing plan at the same time. The
employees were not told that the union members were
ineligible for the profit-sharing plan. While the distinc-
tion between ineligibility due to a plan provided for in
the collective-bargaining agreement and ineligibility due
to union representation might be too subtle for the em-
ployees to distinguish without a fuller explanation than
that given by Respondent, I cannot find on the record
before me that Respondent impermissibly equated union
membership or union representation with disqualification
from the profit-sharing plan In Belcher Towing, supra,
relied on by the General Counsel, the employer was
found to have violated Section 8(a)(1) by misrepresenting
the disqualification for a lawful benefit plan. In the in-
stant case there is insufficient evidence that Respondent
misrepresented the fact that employees receiving a pen-
sion or retirement plan under a collective-bargaining
agreement were lawfully ineligible to participate in the
profit-sharing plan.
At the employee meeting of February 2, Respondent
presented each employee with a personalized document
which estimated, based on past experience, what the em-
ployee could expect to receive under Respondent's
profit-sharing 'plan. Although the estimates were quite
generous, it is not alleged that they were inaccurate;
rather, it simply is alleged that the estimates constitute an
implied promise of better benefits. However, like the re-
marks made in November, Respondent qualified the re-
marks by emphasizing that it was making no promises.
Indeed, the document warned that it was no comparison
and that the "law expressly prohibited the employer
from making any promises in this period before the elec-
tion." As discussed above, such comparisons, have been
held to be permissible campaigning— The fact that the
comparisons mentioned large sums of money should not
make unlawful an otherwise permissible comparison.
4. Quinn's conversations with Bates
As discussed earlier, Charles Bates credibly testified
that on two occasions Quinn, 'Respondent's president,
told Bates that' the' Union was holding Bates back and
that, without the Union, Bates- could make more money.
These Conversations occurred on November 5 and some-
time in early January 1983. Bates could reasonably con-
clude, and it is here concluded, that Quinn was impliedly
promising Bates an increase in pay if the Union were de-
certified. Accordingly, I ,find that Respondent violated
Section 8(a)(1) of the Act by such conduct. Cummins
Component Plant, 259 NLRB 456, 460 (1981).
CONCLUSIONS OF LAW
1. Respondent, Quinn Company, is an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act on November 5, 1982,
and again in January 1983, by promising an employee in-
creased wages if the Union were decertified
4 The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
5. Except as set forth above, the General Counsel has
not established that Respondent has violated the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
On these findings of fact and . conclusions of law and
on the entire record, I issue the following recommend-
ed 6
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
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Quinn Company, Fresno and Salinas,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promising employees higher wages, or other bene-
fits, in order to induce them to withdraw their support
from Operating Engineers, Local Union No. 3 as their
bargaining representative.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act. -
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Fresno and Salinas, California facilities
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by 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:
7 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United Stated Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions the National
Labor Relations Board found that we have violated the
National Labor Relations Act, and has ordered us to
post this notice. t.
Section 7 of the Act giVes employees these rights
To organize
To form, join, or assist any union •
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
ticin
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT promise higher wages, or other benefits,
in order to induce you to withdraw your support from
Operating Engineers, Local Union No. 3 as your bar-
gaining representative.
• WE WILL NOT in • any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
QUINN COMPANY