Schwan's Sales Enterprises, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1981

257 N.L.R.B. 1244 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwan's Sales Enterprises, Inc. and Local 7, Inter-
national Brotherhood Of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
7-CA-17596, 7-CA-17749, and 7-RC-15866
September 14, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 18, 1981, Administrative Law
Judge Claude R. Wolfe issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions 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
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Schwan's Sales
Enterprises, Inc., Three Rivers, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producs.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
proceeding was heard before me at Centerville, Michi-
gan, on November 12 and 13, 1980, pursuant to a consol-
idated complaint based on charges timely filed, and a
Board order directing hearing on certain objections
raised by the Union to the conduct of the election in
Case 7-RC-15866. The complaint alleges conduct viola-
tive of Section 8(a)(1) of the Act consisting of interroga-
tion, threat of discipline for wearing prounion hats and
buttons, and the creation of an impression of surveillance
of employee union activity. It also alleges Gregory
257 NLRB No. 165
McCully was discriminately discharged on March 21,
1980.
Upon the entire record, including my careful observa-
tions of the demeanor of the witnesses as they testified
before me, and after due consideration of the post-hear-
ing briefs filed by the parties, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Minnesota corporation with its princi-
pal office and place of business at Marshall, Minnesota,
and other places of business in Illinois, Indiana, Ohio,
Pennsylvania, and Michigan, including the facility at
Three Rivers, Michigan, involved herein. It processes,
sells, and distributes food products and related items.
During the year ending December 31, 1979, a representa-
tive period, Respondent in the course and conduct of its
business operations, purchased and caused to be trans-
ported and delivered to its Three Rivers place of busi-
ness, food, beverages, and other goods and materials
valued in excess of $500,000, of which goods and materi-
als valued in excess of $50,000 were transported and de-
livered to its place of business in Three Rivers, Michi-
gan, directly from points located outside the State of
Michigan. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. ALLEGED UNFAIR LABOR PRACTICES
A. Facts Found
Sales Manager James Woodruff and Robert Vanness,
Respondent's eastern division manager, agreed on March
18, 1980 ,' that a meeting of route drivers should be held
on March 20 to reemphasize Respondent's policy against
drinking while driving a company vehicle because this
rule was being honored in the breach by at least one
driver. Woodruff accordingly posted a notice of drivers'
meeting on the bulletin board about 6:30 or 7 a.m. on
March 19.2
About 3 or 4 p.m.3 on March 19, mechanic Gregory
McCully and employee Michael Meringa were in a res-
taurant discussing happenings at Respondent's facility
when an otherwise unidentified man introduced himself
as being from a union,4 described benefits to be gained
'All dates herein are 1980.
2 Robert Mitchell, an ex-employee currently being sued by Respondent
for allegedly taking Respondent's customers with him to his new posi-
tion, testified that the notice was not posted when he set out on his route
"probably around" 8 am. on March 19 and first saw it that evening
when he returned about 9 or 10 p.m. Mitchell's testimony was otherwise
unsupported. He tended to generalize when testifying, and seemed to be
trying to avoid direct and definitive answers. On the whole, Woodruff
appeared the more candid witness and I credit him on the time of post-
ing.
3 This is the best estimate of employee Meringa, and no better evidence
was proffered.
I conclude from all the evidence it was the Teamsters Union.
1244
SCHWAN'S SALES ENTERPRISES, INC.
from the Union, and gave them authorization cards. Both
McCully and Meringa then and there signed cards. The
"union man" gave McCully extra cards to give to the re-
maining employees. That evening McCully successfully
solicited Robert Mitchell to sign a card when they met
on the highway as Mitchell was driving home. I credit
McCully that he also asked employee David Rahn to
sign a card on March 19, but Rahn refused.5 The follow-
ing day, March 20, McCully successfully solicited em-
ployee Danner, at Danner's home, to sign one of the
cards.
Woodruff conducted the March 20 meeting with the
drivers wherein he warned them that the penalty for
drinking at work was termination. Mitchell, conceding
that he does not know exactly what was discussed at the
meeting, agrees that the meeting was devoted to a dis-
cussion of things drivers could be fired for, but does not
specify what these things were. Mitchell further asserts
that in the course of the meeting someone, whose identi-
ty he does not recall, complained about a problem with
truck repairs that were McCully's responsibility. He does
not recall exactly what the problem was, but avers that
"they," apparently Woodruff, said McCully was the
highest paid mechanic in the division whose pay could
no longer be justified and "things are gonna be taken
care of." I credit Woodruff that McCully was not dis-
cussed at this meeting, and it was devoted solely to the
drinking and driving problem. Woodruff does, however,
believably testify that McCully's performance had been a
topic of discussion at regular Monday morning sales
meetings, and I am persuaded that Mitchell was, at best,
possibly confused as to when these comments on McCul-
ly took place.
On the morning of March 21, a truck became mired in
the mud at Respondent's lot. After Meringa was unsuc-
cessful in extricating it, McCully tried to drive it out,
with no success. At or about 5:30 a.m., McCully called
"Pappy" Clark's wrecker service and received a promise
the wrecker would be there by 8 a.m. McCully then fin-
ished up his other work and went home at 6:30 a.m.
Shortly before 8 a.m., Woodruff was advised by driver
Watson, with whom he was riding that day, that driver
Danner would be unhappy because his truck was stuck.
Woodruff asked what he was talking about, was told the
truck was stuck in the mud, and then went to the facili-
ty. After viewing the truck, Woodruff called McCully.
McCully's wife first answered. Then McCully got on the
phone. It was then 8 a.m. or a few minutes after. The
testimony of Woodruff and McCully, together with the
pretrial affidavit of McCully and the testimony of em-
ployee Reese 6 who overheard their conversation in
Woodruff's office, has been carefully considered, and I
am persuaded that the following is a fair summation of
their conversations that day derived from a composite of
the credited portions of their testimony.
When McCully answered the phone, Woodruff asked
who had parked the truck, and was told Meringa had
done it. Woodruff then asked why he had not been
called. McCully responded that Danner and the wrecker
I do not credit Rahn's denial that McCully solicited him.
6 do not credit Mitchell that Reese was not present during this con-
versation
service had been notified and the wrecker service had
promised to be there by 8 a.m. The wrecker had not in
fact arrived. Woodruff directed McCully to secure alter-
native wrecker service on a 24-hour basis. Woodruff
denies advising McCully he would be fired if he did not
have such a service by the time he next came to work
but, given the fact that the two were having a heated ex-
change, I believe it likely and find that he did so advise
McCully, as McCully claims. McCully responded it was
Woodruff's responsibility, not his, to secure wrecker
service. Woodruff differed and repeated his order.
McCully and Woodruff differ as to which hung up first,
but this is of no consequence.
After the phone call, McCully went directly to Wood-
ruff's office at the facility, arriving about 15 minutes
later. McCully abruptly entered the office, told Wood-
ruff he was not going to talk to McCully personally in
the same way he had on the phone and that he did not
like the way Woodruff had talked to his wife on the
phone.7 This McCully followed by calling Woodruff a
"little son-of-a-bitch" and a "mother-fucker" and by in-
viting him outside to settle the matter.8 Woodruff re-
sponded that he was not afraid and McCully was fired
and should get out. McCully left.
Within a half hour of the office confrontation, Wood-
ruff met McCully in the parking lot and told him to
return that night, after both had cooled their anger, to
talk the matter over.
Later that morning, about II o'clock, Woodruff called
Vanness and related the events surrounding the mired
trucks and his conversations with McCully and asked
Vanness what he should do. Vanness confirmed that
Woodruff had acted correctly, that Respondent could
not keep anyone who reacted like McCully had, and ad-
vised Woodruff to type up what had happened and place
it in McCully's personnel folder to memorialize the facts
for unemployment claims. Woodruff did so.
McCully met with Woodruff about 7 or 8 p.m. that
night. Woodruff told him he had discussed the matter
with Vanness and it had been decided McCully's actions
of the morning could not be tolerated because they did
not want others to follow his example and that he was
fired. I find the "example" referred to was his miscon-
duct, not his union activity. McCully asked to see his
personnel file, 9 and asked for copies of three documents
headed "Need For Improvement" and dated February 1,
March 17, and March 21, 1980, respectively. None of
these documents had previously been shown to McCully.
The March 21 document is the memo suggested by Van-
ness. The February 1 and March 17 documents make ref-
erence to incidents of unsatisfactory performance, and
Woodruff credibly testified that he had discussed the
7 There is no evidence Woodruff said anything improper to McCully's
wife.
8 McCully concedes, via adoption of his pretrial statement as a true ac-
count. that he called Woodruff a "sorry little bastard" and said he would
like to take him outside. McCully mentioned neither of these two items
on direct examination.
9 I do not credit McCully's testimony that he asked why he was fired
because it is plain that he knew and was told that his conduct that morn-
ing in Woodruffs office was the reason, nor do I credit his testimony
that Woodruff told him he had six reasons for firing him.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters noted in these two documents with McCully' °
but had prepared the documents as notes to the file.
Although not admitting that his work had ever been
criticized, McCully concedes that from the time Wood-
ruff came to the facility in January 1980 he was unhappy
with Woodruff because Woodruff told employees what
to do and when and how to do it, and McCully had pro-
tested Woodruff's conduct directly to Woodruff from the
beginning of Woodruffs tenure as sales manager.
In any event, carbon copies of the three "Need For
Improvement" documents were given to McCully. I find
that Woodruff did not tell McCully they were reasons
for his discharge and Respondent does not advance them
as support for the discharge.
Meringa, a vague, disjointed, and unconvincing wit-
ness, testified that shortly after McCully was discharged,
apparently within a day or two," Woodruff told him
that McCully was discharged for things he had done,
and things he had not done, and then advised Meringa
not to associate with McCully because it could hinder
Meringa's employment with Schwan. According to
Woodruff, he told Meringa that McCully had been fired
and was not to be on the property. Woodruff denies tell-
ing Meringa not to associate with McCully. I credit
Woodruff, a more impressive and believable witness than
Meringa.
Meringa further testified to a conversation 2 wherein
Vanness gave him the "riot act" because trucks were
sometimes stuck and then told him that McCully was
fired for two reasons. Vanness did not tell him what the
two reasons were. According to Vanness, he talked to
Meringa on March 25 about two different trucks getting
stuck in the mud because Meringa had parked them
where the ground was not packed down. Vanness avers
this was the entire content of the conversation except for
a question posed to Meringa as to whether McCully had
been around picking up tools from the shop, to which
Meringa answered in the negative. Vanness' version is
credited. Apart from his superior demeanor, I do not
think it probable that Vanness, for no apparent reason,
would convey the message that McCully was fired for
two reasons without giving some slight indication as to
what they were.
Respondent received its first knowledge'3 of union ac-
tivity via a March 28 telegram from the Union wherein
'o McCully was argumentative and evasive when asked if Woodruff
ever criticized his work or brought job performance problems to his at-
tention. As examples of the tenor of this testimony, see the following:
Q: You're telling me at no time did Mr. Woodruff ever criticize
your work or ask you to do better, do a better job, or there were
problems with your performance?
A: Mr. Woodruff was constantly putting pressure on everyone.
Q: Okay, in this connection, you had a number of conversations-
he had a number of conversations with you, in reference to what he
thought you should do to improve your job performance; is that cor-
rect"
A: My job performance, no.
Q: Well, what were the conversations about?
A: The conversations were giving me direct orders to do some-
thing, and do it a certain way, and when to have it done.
" Meringa's dates and times are confused.
12 He first says "later." then amends it to, "I don't remember." when
pressed for a date.
1 I do not agree with the General Counsel's contention that knowl-
edge of McCully's union activities on March 19 and 20 should be inferred
it notified Respondent of its designated majority status,
offered to submit to a card check, warned against dis-
crimination, and requested recognition and bargaining.
The original charge in Case 7-CA-17596 naming McCul-
ly as an alleged discriminatee and relating his union ac-
tivity, was filed on March 31. The petition for election in
Case 7-RC-15866 was filed the same day.
Respondent concedes that after it became aware of
union activity by way of the union telegram it mounted a
substantial campaign to discourage employees from affi-
liating with the Union.
Vanness and former employee Donald Vallenga give
different versions of what transpired at a conversation
between them on April 17. According to Vallenga, as he
came in from his route, about 10 or II p.m., Vanness
asked if he would talk with him. Vallenga agreed and
asked if he would talk with him. Vallenga agreed and
suggested they go to the Time Out bar inasmuch as visit-
ing Retail Sales Manager Don Wichman had not eaten.
Vallenga avers that they proceeded to the bar where a
conversation ensued with driver John Brady present.
The conversation commenced, according to Vallenga,
with Vanness asking what problems had led to employ-
ees contacting the Union, at which point they started dis-
cussing commission cuts and insurance. Vallenga men-
tioned that he thought McCully had been discharged un-
justly and deserved his job back. Vanness responded
McCully could not get his job back, according to Van-
ness' lawyers. Vallenga differed with this. Vallenga states
that Vanness told him other employees looked up to him
and he could turn "this" around anytime he wanted to.
Vallenga agreed he could, but would not. Whereupon,
Vanness asked if he had brought the Union in. Vallenga
said McCully had, but that Vallenga was also for the
Union. Vanness responded, "I figured Greg was the
one."
Vanness gives a different version, as follows: He and
Wichman were discussing going to eat when Vallenga
came in and suggested they go to the Time Out bar be-
cause there were sandwiches there and he wanted to talk
with them. After some hesitation, Vanness agreed and
they all met at the bar where John Brady was also pres-
ent intermittently when not off playing pool. The con-
versation began with Vallenga protesting commission
cuts and requesting an extra commission in view of his
superior production. 4 Wichman offered to show Val-
on the basis of the "small plant doctrine." Although it later became
common knowledge at the facility that McCully was an activist, the situ-
ation as it existed on March 21 gives no sound basis for inferring such
knowledge. He and Meringa signed their cards at a restaurant about 3 or
4 p.m. on March 19. McCully solicited Mitchell on the highway as he
was driving home the evening of March 19 and solicited Danner at Dan-
ner's home on March 20. The only union activity by McCully that was
possibly at the facility was his solicitation of Rahn on the night of March
19. but it is not clear where Rahn was solicited. The mere fact the work
force is small, here about 13 in the bargaining unit, does not require a
conclusion of knowledge but it is a factor to support such an inference.
In this case the activity, with the possible exception of the solicitation of
Rahn. occurred away from the facility and there is simply no reason on
the evidence before me to infer Respondent knowledge by 8 am. or
within minutes thereafter on March 21 when McCully was discharged.
" Vallenga was Respondent's top salesman in the division.
1246
SCHWAN'S SALES ENTERPRISES, INC.
lenga data reflecting more than a 13-percent increase in
retail sales personnel's income and Vanness promised to
have Wichman send the documents to show this in-
creased income.S Vallenga opined that he would like to
go to Marshall, Minnesota, to talk to Marvin Schwan,
Respondent's president, about a pay increase or commis-
sion increase. Vanness advised Respondent was under
the direction of legal counsel as to what they could or
could not do, but he would check and let Vallenga know
the result later. 16 Vallenga pointed out that if he could
persuade Marvin Schwan to raise commissions the em-
ployees would vote against the Union and there would
be no need for one. Vallenga also charged that Respond-
ent was pocketing excess insurance premiums and charg-
ing employees too much. He also said he would like to
see McCully reinstated. Vanness replied that McCully's
termination was in litigation and nothing could be done
about it at the time. Vanness denies initiating any talk
about the Union, or asking Vallenga or Brady about
their union activities or those of others. Vanness testified
that there was no reason to interrogate anyone because it
was common knowledge who was for and against the
Union, and the pending unfair practice charge and the
employee grapevine had made him aware of this as well
as the fact McCully had started the Union. I do not
agree with the General Counsel that Vanness' statement
in regard to McCully requires a conclusion that Re-
spondent knew of McCully's activities prior to his dis-
charge. All it shows is that Respondent knew this as a
result of the March 31 charge, which names McCully
and generally sets forth his union activities, and employ-
ee conversation which came to his attention. I am not
persuaded by this, or anything else in the record, that
Respondent knew of any union activity until March 28.
The evidence certainly does not preponderate in favor of
General Counsel's inference of predischarge knowledge.
In evaluating the conflicting testimony of Vanness and
Vallenga," I have kept in mind that Vanness is alleged
as a perpetrator of unlawful acts, and Vallenga was dis-
charged subsequent to April 17 and was alleged in the
May 6 charge in Case 7-CA-17749, but not proceeded
on by the General Counsel. This does not, however, give
me much help in determining credibility. Similarly, that
Vanness' conduct vis-a-vis employees and the Union had
been prescribed by counsel to avoid the sort of conversa-
tion alleged by Vallenga makes it somewhat unlikely that
Vanness would made the statements alleged, but Van-
ness' meeting with Vallenga in a bar would seem to be in
conflict with counsel's advise, from which one might
infer that advice was not always followed. This is one of
those instances where the record evidence at hand with
respect to credibility is not dispositive and demeanor evi-
dence is of utmost importance. Vanness appeared to be
testifying with more certainty than Vallenga and Van-
ness' version impressed me as the more convincing when
he delivered it. Comparing the testimonial demeanor of
" Subsequent to this meeting. Vallenga was shown these records by
Vanness
'' At a later date Vanness told Vallenga the visit with Schwan was not
permissible.
" Neither Brady nor Wichman testified about the conversation I draw
no adverse inferences from this
the two as I observed and noted it, I am persuaded that
Vanness' version must be given credence over that of
Vallenga.
On May 6, employee Jerry Robinson was wearing a
cap with a Teamsters emblem and two Teamsters but-
tons on it. Woodruff asked Robinson to take the cap off.
Robinson refused, whereupon Woodruff grabbed the cap
only to have Robinson grab it back and put it on again.
Woodruff concedes he asked, "What are you trying to
do, get yourself fired?" Robinson left without respond-
ing. There were two other employees present. Robinson
continued wearing the cap for several days thereafter. I
credit Woodruff's uncontroverted testimony that he told
Robinson, after consulting his lawyer about the incident,
that he could wear the cap, but not on his route, and
could wear a union button anywhere.
On the morning of May 7, John Brady and fellow em-
ployee Tinglish volunteered to Vanness that a poll taken
by employees indicated that two people would vote for
the Union. On the evening of the same day Brady ex-
pressed concern to Vanness about the discharge of Val-
lenga and said that he thought Vallenga should be rein-
stated. Vanness testified that he told Brady that under
the circumstances with Vallenga there was nothing Re-
spondent could do or wanted to do. Brady's version is
that Vanness said if Vallenga would drop the charges
against Respondent and sign a paper about his work atti-
tude he would be reinstated, but if the Union came in it
would be out of Vanness' hands.
It is possible that Brady is correct but the record per-
suades me to credit Vanness because the charge in Case
7-CA-17749 naming Vallenga was filed on May 6 but
not served on Respondent until May 8. Moreover, it was
not received by Respondent until May 9. It is improbable
that Vanness would have mentioned dropping a charge
that Respondent had not yet received and is not shown
to have had knowledge of prior to receipt. This is true
regardless of whether the conversation took place on
May 7, as Vanness testified and I find, or May 8. It is
clear from Brady's testimony that it took place prior to
election day, May 9.
Brady credibly testified that Woodruff told him on the
morning after his conversation with Vanness, therefore
the morning of May 8 or 9, that the election outcome
would probably depend on the votes of Brady and Mark
Tucker. I do not credit Woodruffs denial. Brady's testi-
mony on this point had the ring of truth and was more
convincing than Woodruffs denial.
B. Conclusions
I find and conclude that the General Counsel has not
shown by a preponderance of the evidence that McCully
was unlawfully discharged, or even that his union activi-
ties were a motivating factor in that discharge. Respond-
ent had no knowledge of McCully's union activity or
any union activity at the time of his discharge, could not
therefore have discharged him for that activity, and had
solid cause to discharge him for his insubordinate out-
burst at Woodruff.
Woodruffs request to Robinson that he remove the
Teamsters cap and Woodruffs action in grabbing the cap
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Robinson's head constitute discouragement of
wearing union insignia and are violations of Section
8(a)(1) of the Act. That Robinson continued to wear the
cap, and that the cap is not part of the company uniform
does not alter this conclusion. s Woodruffs accompany-
ing question, "What are you trying to do, get yourself
fired?" is a clear threat of discharge for continuing to
wear the Teamster cap. As such, it is also a violation of
Section 8(a)(1) of the Act.
The General Counsel does not explain his theory as to
how Woodruff's comment to Brady, in regard to the de-
terminative nature of his vote and that of Tucker, trans-
lates into the unlawful creation of an impression of sur-
veillance. I conclude, however, that Woodruffs com-
ment was sufficient to create an impression that he had
ascertained the "swing" votes by investigation or surveil-
lance and was reasonably calculated to impress upon
Brady that his union activities and sympathies had been
the subject of employer survey. I therefore find, al-
though the matter is not entirely free from doubt, that
Respondent did on this occasion by Woodruff's comment
create an impression of Respondent surveillance of em-
ployees' union activities, and thereby violated Section
8(a)(1) of the Act. I also find that Woodruff's statement
to Brady amounted to subtle interrogation by way of
comment designed to elicit a reply from Brady as to how
he would vote and was violative of Section 8(a)(I) for
this additional reason. 9
I conclude and find that the General Counsel has not
shown by a preponderance of the credible evidence that
Respondent has committed any other unfair labor prac-
tices alleged in the complaint.
IV. THE OBJECTIONS
The objections to election before me for hearing read
as follows:
2. Supervisor, Mr. Woodruff, pulled a hat bearing
the Teamster emblem from an employee's head,
stating "either remove it or be suspended."
4. Supervisors, Mr. Woodruff and Mr. Veness
took employees aside alone and made promises such
as "we will offer certain employees their jobs back
with full compensation if they will drop all charges
against us."
The matters alleged in Objection 2 have been found to
be unfair labor practices. Accordingly, I recommend Ob-
jection 2 be sustained.2
" Dixie Machine Rebuilders. Inc., 248 NLRB 881 (1980); Regal Tube
Company, 245 NLRB 968 (1979).
'9 Woodruffs statement was not alleged as unlawful interrogation, but
it was litigated and Respondent was on notice it was advanced by the
General Counsel as an unfair labor practice within the meaning of Sec.
8(a)(1). Accordingly, my finding of unlawful interrogation is warranted
by the pleadings and does not operate to deprive Respondent of due
process.
20 Dal-Tex Optical Company, Inc.. 137 NLRB 1782. 1786-87 (1962).
Objection 4 is not supported by credible evidence and
should be overruled.
In view of the small size of the bargaining unit, the
closeness of the election,2' and the presence of two other
employees when Woodruff grabbed Robinson's cap and
issued a threat, I conclude that the matters encompassed
by Objection 2 are sufficient in themselves to warrant
setting the election aside.
Additionally, I find that even though the conduct of
Woodruff in unlawfully creating an impression of sur-
veillance and interrogating Brady is not alleged as objec-
tionable conduct in the objections set for hearing before
me it was alleged and litigated as an unfair labor practice
and is serious conduct within the critical preelection
which, objectively viewed, had a tendency to interfere
with Brady's free and unfettered exercise of his franchise
in the election. Accordingly, I further find that Wood-
ruffs conduct interfered with the conduct of the election
and is a further reason to set it aside. 22
CONCLUSIONS OF LAW
1. Respondent, Schwan's Sales Enterprises, Inc., is an
employer engaged in commerce within the meaning of
Section 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. By discouraging the wearing of union insignia by its
employees, Respondent violated Section 8(a)(1) of the
Act.
4. By threatening an employee with discharge because
he wore union insignia, Respondent has violated Section
8(a)(1) of the Act.
5. By creating the impression of surveillance of em-
ployee union activities, Respondent violated Section
8(a)(1) of the Act.
6. By interrogating an employee in order to ascertain
how he would vote in the upcoming election, Respond-
ent violated Section 8(a)(l) of the Act.
7. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
8. It has not been shown by a preponderance of the
credible evidence that the discharge of Gregory McCul-
ly was violative of the Act, and except as found above
Respondent has not engaged in the other unfair labor
practices alleged in the complaint.
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 23
The Respondent, Schwan's Sales Enterprises, Inc.,
Three Rivers, Michigan, its agents, officers, successors,
and assigns, shall:
2 The final tally of ballots, as recited in the Board's Order issued in
Case 7-RC-15866 on August 5. 1980, shows 3 for the Union, 5 against,
and 2 challenged ballots.
22 Dawson Metal Products, Inc., 183 NLRB 191, 200-201 (1970).
23 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
Continued
1248
SCHWAN'S SALES ENTERPRISES, INC.
I. Cease and desist from:
(a) Discouraging the wearing of union insignia by its
employees.
(b) Threatening employees with discharge for wearing
union insignia.
(c) Creating the impression of surveillance of employ-
ee union activities.
(d) Interrogating employees with respect to how they
will vote in a Board-conducted election.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its facility at Three Rivers, Michigan,
copies of the attached notice marked "Appendix." 24
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by an author-
ized representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
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.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
(b) Notify the Regional Director for Region 7. in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
consolidated complaint found to be without merit are
hereby dismissed.
IT IS FURTHER ORDERED that the election held on May
9, 1980, in Case 7-RC-15866 be, and it hereby is, set
aside, and said case is hereby remanded to the Regional
Director for Region 7 to conduct a new election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage our employees from
wearing union insigna.
WE WILL NOT threaten our employees with dis-
charge because they wear union insigna.
WE WILL NOT create the impression that we are
surveying the union activities of our employees.
WE WILL NOT question our employees with re-
spect to how they will vote in an election conduct-
ed by the National Labor Relations Board.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed to them under Sec-
tion 7 of the Act.
SCHWAN'S SALES ENTERPRISES, INC.
1249