Wm. T. Burnett And Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1084 (N.L.R.B. 1984)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wm. T. Burnett and Co., Inc. and United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO. Cases 11-CA-10690 and 11-RC-
5110
14 December 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 August 1983 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent Company filed exceptions, a sup-
porting brief, and an answering brief; the General
Counsel filed cross-exceptions, a supporting brief,
and an answering brief; and the Charging Party
Union filed cross-exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
We would not on the basis of the 8(a)(1) viola-
tion found grant a bargaining order. There is no
reason to believe nor have such findings been made
that a fair rerun election would be precluded by
the Respondent's commission of this 8(a)(1) viola-
tion. 2 Accordingly, the 10 November election will
be set aside and a second election directed in the
appropriate unit as set forth in the decision.3
ORDER
The National Labor Relations Board orders that
the Respondent, Wm. T. Burnett and Co., Inc.,
Statesville, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Announcing and granting wage increases to
its employees in order to dissuade them from sup-
' We adopt the judge's finding that the Respondent did not violate
Sec 8(a)(1) of the Act when, through its president Townsend, it showed
employee Holland a portion of Townsend's speech stating, inter aim, that
"In the meantime, during this long negotiation period, your wages would
be frozen by law " (Emphasis added ) While we do not quarrel with
the judge's recitation of the law regarding wage increases dunng negotia-
tions, we find that he misquoted Townsend's statement by substituting
"could be frozen" for "would be frozen" which appears in the text of the
speech We would, nevertheless, affirm the judge's finding, see R L
White Co, 262 NLRB 575 (1982)
2 NLRB v Gavel Packing Co, 395 U S 575 (1969) Walgreen Go, 221
NLRB 1096 (1975) We find it unnecessary to rule on the judge's discus-
sion of circumstances warranting a bargaining order
3 Having found a bargaining order unwarranted we have no need to
make findings on whether the Union represented a majority of the unit
employees based on valid authorization cards
porting United Brotherhood of Carpenters and
Joiners of America, AFL-CIO.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its places of business in Statesville,
North Carolina, copies of the attached notice
marked "Appendix." 4 Copies of the notice, on
forms provided by the Regional Director for
Region 11, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held
on 10 November 1982 in Case 11-RC-51l0 be set
aside and remanded to the Regional Director for
Region 11 to conduct a new election.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations not found
herein.
[Direction of Second Election omitted from pub-
lication.]
4 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 States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
273 NLRB No. 135
WM. T. BURNETT & CO. 1085
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT announce or grant a wage in-
crease to our employees in order to dissuade them
from supporting United Brotherhood of Carpenters
and Joiners of America, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
Wm. T. BURNETT AND CO., INC.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Statesville, North Carolina, on
June 20-22, 1983. The charge in Case 11-CA-10690 was
filed by United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Union), on November 19, 1982,1
and a complaint and notice of hearing issued on Decem-
ber 30 alleging violations of Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act), by Wm. T. Burnett
and Co., Inc. (Respondent or the Company). The com-
plaint was amended on April 14, 1983, to include an alle-
gation that Respondent's unfair labor practices were so
serious and substantial in character as to warrant the
entry of a remedial order requiring Respondent to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees in the ap-
propnate unit specified in the amended complaint.
The petition in Case 11-RC-5110 was filed by the
Union on September 22 and pursuant to a Stipulation
For Certification Upon Consent Election approved by
the Regional Director for Region 11 on October 12 a
secret-ballot election was held on November 10. 2 A ma-
jority of valid ballots counted plus challenged ballots
were cast against representation by the Union. On No-
vember 16 the Union filed timely objections to conduct
affecting the results of the election. The Regional Direc-
tor found three of the Union's numbered objections
raised issues which could best be resolved by a hearing
and recommended approval of the Union's request to
withdraw certain other objections to the election. Noting
that the evidence in support of the Union's objections
was similar to the evidence submitted by the Union in
All dates are in 1982 unless otherwise stated
2 The unit in which the election was held is as follows "All produc-
tion and maintenance employees, truchinvers, and lead persons em-
ployed by the Employer at its (Main) 2550 W Front Street and (Cush-
ion) Taylorsville Road, Statesville, North Carolina facilities, excluding all
office clerical employees, guards, and supervisors as defined in the Act
Respondent admits the foregoing unit is appropriate, and I conclude, as
alleged in the complaint, that It is an appropriate unit for the purposes of
collective bargaining within the meaning of Sec 9(b) of the Act.
support of allegations in Case 11-CA-10690, the Region-
al Director on Apnl 18, 1983, in conjunction with his
report on objections issued an order consolidating Case
11-RC-5110 with Case 11-CA-10690 for hearing.3
The pleadings in Case 11-CA-10690 raise the issue of
whether Respondent violated Section 8(a)(1) of the Act
by unlawfully soliciting employees' grievances and im-
plying that they would be remedied in order to discour-
age employees' union activity, unlawfully threatening
employees with loss of jobs and loss of existing benefits
if they selected the Union as their collective-bargaining
representative, soliciting employees to revoke union au-
thorization cards, announcing and thereafter granting
employees a general wage increase in order to dissuade
employees from supporting the Union, and interrogating
employees regarding their union sympathies. The issues
to be considered in connection with resolution of the ob-
jections in Case 11-RC-5110 are coextensive with the al-
leged unfair labor practices. A final issue raised by the
pleadings and to be determined herein is whether the Re-
spondent's actions constituted such serious and substan-
tial unfair labor practices as to warrant the entry of a re-
medial bargaining order based on the Union's majority
status reflected by union authorization cards.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent
and the oral argument of the Union made at hearing, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Maryland corporation engaged in the
manufacture and sale of cotton and synthetic batting
with facilities located in several States of the United
States including the two facilities located at Statesville,
North Carolina, which are the only facilities involved in
this proceeding. During the 12-month period preceding
issuance of the complaint, Respondent received goods
and raw materials valued in excess of $50,000 at its
Statesville, North Carolina facilities directly from outside
the State of North Carolina. During the same period, Re-
spondent also shipped goods and materials valued in
excess of $50,000 directly from its Statesville, North
Carolina facilities to points outside the State of North
Carolina. The complaint alleges, Respondent by its
answer admits, and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I also
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 No exceptions to the Regional Director's report on objections were
filed by the parties, and the Board, accordingly, adopted the Regional
Director's recommendations on May 9, 1983
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Independent Violations of Section
8(a)(1)
1. The alleged solicitation of grievances with the
implication that they would be remedied
The Union began its organizational campaign in Sep-
tember according to Donnie Burns, an International rep-
resentative who conducted the campaign on the part of
the Union. Burns testified that while employed by an-
other union, the United Furniture Workers of America,
he had also been involved in another campaign with Re-
spondent a year or so earlier and was acquainted with
Respondent's employees. By September 17, the Union
had secured employees' signatures on 24 union authoriza-
tion cards. On September 21, the Union distributed a
leaflet to Respondent's employees announcing that on
September 20 it had filed a petition for an election with
the Board. It was in the context of Respondent's re-
sponse to the Union's September 21 leaflet that the Gen-
eral Counsel contends Respondent committed its first
unfair labor practice.
The complaint alleges that Respondent's president,
David D Townsend, an admitted supervisor, violated
Section 8(a)(1) of the Act by soliciting employees' griev-
ances at an employee meeting on September 21 with the
implication that they would be remedied in order to dis-
courage employees from engaging in union activities. In
support of this allegation, employee Larry Cass testified
that in a speech to first-shift employees on September 22
in which Townsend denied the Union's claim that a peti-
tion had been filed, 4 Townsend reminded employees that
they had been through a union election before, that it
had been voted down, and that he did not see any need
for having a union or third party to represent the em-
ployees. Further, according to Cass, Townsend told em-
ployees that, if they needed to discuss wages or needed
to talk to him in any way, that he would be more than
happy to talk to them about it. Cass related that he had
never previously heard Townsend invite employees to
speak to him personally concerning wages.
Similarly, employee Charles Holland testified that he
also attended the meeting at which Townsend spoke to
employees about the petition being filed by the Union for
an election. Townsend had related that the Labor Board
had been telephoned, and it was ascertained that the peti-
tion had not at that point been received by the Board.
According to Holland, Townsend went on to make ob-
servations about the business being bad and about the
Company not needing a Union inside the plant. Holland
further testified that Townsend told employees that if
they had any kind of problems, they could come to talk
to him, that his door was always open. Like Cass, Hol-
land said he had never heard Townsend invite employees
to come and talk to him on an individual basis before.
Employee William Holder corroborated Holland's testi-
4 It appears that the claim in the Union's leaflet that a petition had
been filed with the Board was based on its mailing of the petition to the
Board The petition was not received and docketed by the Regional
Office until September 22
mony saying that Townsend invited employees to talk to
him about their problems. Townsend in testifying for Re-
spondent admitted that he had met with employees on
September 22 to tell them that the Union was "knocking
on the door." He admittedly told employees that they
did not need a third party to speak for them and stated
that if employees had any questions, they could ask the
questions and he would try to answer. While he could
not recall whether he mentioned wages, he specifically
denied that he told employees if they needed to discuss
wages or needed to talk to him in any way that they
could come see him. Moreover, he denied saying that if
the employees had problems, the door was always open.
Of the witnesses testifying about the September 22
meeting, I find the testimony of Holland most credible
Both Cass and Townsend exhibited some uncertainty re-
garding all of what was said. Cass' testimony that Town-
send invited employees to talk to him about wages was
not supported by Holland And while wages became a
substantial issue in the Union's organizational campaign,
the Union's first leaflet distributed on September 21 did
not refer specifically to wages. Under these circum-
stances, I find it unlikely that Townsend would have in-
vited discussions with employees regarding wages. On
the other hand, Holland's testimony that Townsend in-
vited employees to talk to him concerning problems was
convincing and corroborated by Holder. Moreover, it
would not be at all improbable that Townsend invited
employees to talk to him in light of Townsend's admis-
sion that he told employees that they did not need a
third party to represent them. Accordingly, crediting
Holland, I find that Townsend did offer to discuss with
employees their problems.
The General Counsel contends that Townsend's offer
to discuss employee problems on September 22 constitut-
ed a solicitation of grievances with the implication that
they would be remedied in order to discourage employ-
ees from engaging in union activities. In my view,
Townsend's offer to talk to employees regarding prob-
lems was no more than an exercise of free speech under
Section 8(c). Even considering Townsend's offer to talk
to employees to be a solicitation of grievances, it is to be
noted that there is nothing inherently coercive about
such solicitation in itself. A violation occurs when the
solicitation is accompanied by the implication that Re-
spondent will take some step to remedy the grievances
and thereby dissuade employees from their union sup-
port. See Uarco, Inc., 216 NLRB 1 (1974). There is no
indication or suggestion that Respondent would act on
any grievances or problems raised by any employees.
Moreover, there is no evidence that any employees re-
sponded and sought to talk to Townsend individually in
response to his invitation. The absence of any responses
in itself reveals that the employees did not perceive
Townsend's remarks as implying that any complaints
would be remedied The record is also devoid of evi-
dence of specific promises of benefits which might tend
to support a conclusion that Townsend's remarks here
under consideration were intended to carry with them
the unlawful implication of remedial action. Mars Sales &
Equipment Co., 242 NLRB 1097 (1979), cited by the
WM T BURNETT & CO 1087
General Counsel in support of his argument on the viola-
tion I find to be inapposite. There, unlike in the instant
case, the employer, already under a duty to bargain with
the union, directed employees to come to it first regard-
ing grievances prior to going to the union thereby imply-
ing early correction of the grievances making resort to
the union unnecessary. Moreover, such direction was
made in the context of other proposals to employees by
the employer to bypass the union. Accordingly, because
I find no implication of corrective action, I find that
Townsend's invitation to talk to employees did not vio-
late Section 8(a)(1) of the Act as alleged.
2. Threat of loss of jobs and benefits if employees
selected the Union
The complaint alleges that Townsend on October 20
in remarks to employees at an employee meeting and
through the showing of a film to employees entitled
"Evelyn II" threatened employees with losses of jobs
and losses of existing benefits if they selected the Union
as their bargaining representative. In support of this alle-
gation Charles Holland testified that he attended two
meetings on October 20 at which Townsend spoke, the
first at the end of the first shift and the second at the be-
ginning of the second shift. In addition, he viewed the
film shown by Respondent during the meetings. Holland
testified that the film depicted a supervisor talking to an
employee regarding union organization In the course of
the supervisor's remarks, according to Holland, the su-
pervisor stated that, if an employee went on strike, he
could be permanently replaced and lose benefits like paid
holidays and other benefits. After the film was shown to
the employees on the second shift, Townsend in his re-
marks to the second-shift employees stated that, if the
Union came in, they would . start from scratch during ne-
gotiations and wages would be frozen. Holland testified
he raised his hand and asserted that the union representa-
tives had previously told employees that during negotia-
tions they would not lose any benefits Holland testified
Townsend replied that they would start from scratch in
negotiations Thereafter, Holland asked no further ques-
tions. Subsequently, Townsend came to Holland in the
plant and showed him a paper which, according to Hol-
land, stated that employees would start from scratch
during negotiations and wages would be frozen
Employee Cass testified regarding the showing of the
film on the first shift on October 20. He testified that the
emphasis of the film was on strikes. He attributed to
Townsend no remarks regarding bargaining from
scratch, nor did employee William Holder who testified
that he also attended the October 20 meeting. Holder did
testify, however, that Townsend related that bargaining
could go on for years before a contract was signed and
wages would be frozen during negotiations. Holder also
added that Townsend told employees that they would
lose the benefits they already had. Holder claimed that it
was he rather than Holland who responded that the
union representative had said that they would not lose
their benefits, but he could recall no specific response by
Townsend to that remark
Townsend in his testimony conceded that he had two
employee meetings on October 20 at which the film was
shown. He testified that he made no remarks regarding
the film other than to say that the film spoke for itself.
He denied saying anything about employees losing their
jobs as the result of strikes or losing benefits if they se-
lected the Union. Moreover, he denied any assertion by
Holland at the meeting that the employees had been told
by the union representative they would not lose benefits.
He conceded that he did have a conversation with Hol-
land regarding the process of collective bargaining but
stated that that occurred during October 8 at another
employee meeting when Holland had stated that the
Union had told employees that they would not lose ben-
efits if the Union got into the Company. On this occa-
sion, Townsend said he told Holland that the Company
would negotiate with the Union on benefits and denied
stating that if the Union got in the employees would lose
benefits or that the Company would bargain from
scratch in negotiations. According to Townsend, Hol-
land responded by observing that negotiations were like
a poker game, and Townsend agreed with Holland's
remark Townsend conceded, however, that he told Hol-
land that during negotiations it was possible that their
wages would be frozen Later, on the same day, Town-
send showed Holland a portion of a written speech pre-
pared by Respondent's attorneys in response to a union
organization effort a year earlier. The portion of the
speech which Townsend showed Holland and which
Holland identified at the hearing contained the following
statement:
Keep in mind that every word, every sentence,
every working condition, every benefit, every
penny of a written contract would have to be nego-
tiated out between Company and Union representa-
tives Our attorney would be sitting at the bargain-
ing table with us, protecting our legal rights. And
negotiations could last for many months In the mean-
time, during this long negotiation period, your
wages would be frozen by law and we would be
prevented by law from dealing directly with you or
making any improvements in your working condi-
tions and employee benefits until such time as a
contract was actually signed with the Union.
In this instance I believe Townsend's testimony is
more accurate than that of Holland, Holder, or Cass. All
three employees exhibited some confusion about what
Townsend said Holland's testimony that Townsend said
the employees would bargain from scratch is unsupport-
ed by any other employee witnesses. Holland was uncer-
tain about the date of the remarks he attributed to Town-
send and gave conflicting written statements to the
Board regarding the timing of Townsend's alleged re-
marks. Further, despite Holland's claim that the docu-
ment shown to him by Townsend contained the state-
ment that bargaining would start from scratch, the only
portion of the written speech which Holland identified as
having been shown to him by Townsend contained no
statement to the effect that bargaining would start from
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scratch. 5 Holder's version of Townsend's remarks was
not supported by any other employee. Accordingly, I
credit Townsend's version of his remarks on October 20.
Moreover, I accept Townsend's admission regarding his
remarks to Holland on October 8 in the employee meet-
ing on that date and the subsequent showing to Holland
on that date of the old written speech with the reference
to the freeze in wages during negotiations.
Since I credit Townsend's testimony concerning the
October 20 meetings, I find he made no unlawful re-
marks on that date. I further conclude that his statement
at the meeting on October 8 and his showing of the writ-
ten matter to Holland on that date also did not unlawful-
ly threaten employees with a loss of benefits. Town-
send's statement that wages could be frozen during nego-
tiations amounts to an accurate observation of the cur-
rent law that an employer may not increase wages with-
out fully bargaining with the union selected by those em-
ployees to represent them in the unit in which the em-
ployer seeks to grant the increase. R. L. White Co., 262
NLRB 575 (1982). The written statements shown Hol-
land add only that the freeze could last for "many
months," and until an agreement was achieved. This too
can be construed only as a truthful observation which
cannot be stretched into coercive misrepresentation of
the legal consequences of the employees' selection of the
Union.
The General Counsel argues, citing Gould, Inc., 260
NLRB 54 (1982), that Respondent had a semiannual
wage review in existence as a condition of employment,
and, therefore, Respondent's threat to "freeze" constitut-
ed a threat to deprive employees of benefits to which
they would otherwise be entitled. This argument appears
to run contrary to the General Counsel's other argu-
ments, infra, regarding the lack of Respondent's prede-
termined schedule in granting its employees wage in-
creases. Moreover, it ignores the fact that Respondent
had in 1982 opted not to give a semiannual increase thus
removing that as a condition of employment. It further
overlooks the fact, discussed infra, that Respondent had
told its employees in May that it could not grant them a
wage increase because of poor business conditions. There
is no showing that employees were ever told subsequent-
ly that conditions had changed. Further, there is no evi-
dence that employees herein at the time of Townsend's
remarks to Holland were anticipating a wage increase.
Indeed, the Union made a substantial campaign issue out
of the employees' failure to receive a wage increase.
Under these circumstances, there was no specific wage
increase that the employees could anticipate losing as a
result of wages being "frozen." Accordingly, I conclude
that Townsend's assertions about wages being frozen
during negotiations could not have been reasonably con-
strued as a threat of a deprivation of a specific wage in-
crease to employees if they selected the Union. I, there-
fore, find no violation of Section 8(a)(1) by Respondent
in this regard.
The General Counsel also argued in his brief that
statements in the film shown by Townsend to employees
5 It Is clear, however, that the written speech did contain such a state-
ment on a page other than the one shown to Holland
on October 20 constituted an independent violation of
Section 8(a)(1) because it failed to spell out, in the con-
text of discussions of the rights of strikers, an employer's
specific obligations under Laidlaw Corp., 171 NLRB
1366, 1369 (1968), enfd. 414 F.2d 99 (7th Cir. 1969).
Such failure, the General Counsel urges, constitutes a
threat that if employees select the Union to represent
them and go on strike they will lose their jobs "forever."
The disputed portion of the language contained in the
film which was received in evidence by stipulation pur-
ports to be a conversation between a supervisor and an
employee regarding strikes. That language is set forth
below:
Gene [the supervisor] . In effect [the Supreme
Court] said, "Okay, the employees have a right to
strike, but the company has the right to put a new
employee in place of the ones who are out on the
road." For every work station left unattended, the
company has the right to put a replacement in
there, and that replacement is permanent if the com-
pany wants it that way.
Evelyn [the employee]: But what if somebody
decides to come back to work9
Gene: They can come back to their job if it
hasn't been permanently filled by someone else, or
on another job if they're qualified. But if there
aren't any jobs they can handle, they're often out of
luck.
Evelyn: Forever?
Gene: Who knows. All they can do is be placed
on a waiting list in case some job they're qualified
for happens to come open.
Evelyn: I've never known that before.
Gene: Well, it's something the union doesn't
stress too hard to employees. They'll say "Oh yeah,
we want a strike, we want this and we want that,
and so on and so forth," (shakes head) so, even if
you don't count the money you lose by not work-
ing . . . you could lose your job here . . . forever.
The General Counsel, citing Harrison Steel Castings
Co., 262 NLRB 450 (1982), urges that an employer who
seeks to inform employees of the rights of strikers is
charged with the obligation to do the job with accuracy
and completeness and that where the employer fails to
articulate the continuing rights of strikers to reinstate-
ment (even after replacement) in their continuing status
as employees, the employer implicitly threatens employ-
ees that they risk termination if they participate in an
economic strike and are replaced at the conclusion of
such strike. The General Counsel asserts here that the
vague and ambiguous response of the supervisor in the
film's response to the question of an employee regarding
whether the jobs are lost forever, in context, is incom-
plete and fails to explain an employer's full Laidlaw obli-
gations in that it failed to note the employer's specific
obligation affirmatively to seek out strikers as positions
are vacated.
In arguing that the film reflected an accurate and ade-
quate summary of the law pertaining to the rights of
strikers, Respondent relies on the Board's decision in
WM T. BURNE'TT & CO 1089
Eagle Comtronics, Inc., 263 NLRB 515, 516 (1982) There
the Board addressed the degree of detail required of an
employer who undertakes to inform employees that they
are subject to replacement in the event of an economic
strike and stated:
[W]e conclude an employer may address the subject
of strikers' replacement without fully detailing the
protections enumerated in Laidlaw [Laidlaw Corp.,
171 NLRB 1366 (1968)] so long as it does not
threaten that, as a result of a strike, employees will
be deprived of their rights in a manner inconsistent
with those detailed in Laidlaw. To hold otherwise
would place an unwarranted burden on an employ-
er to explicate all the possible consequences of
being an economic striker. This we shall not do. As
long as an employer's statements on job status after
a strike are consistent with the law, they cannot be
characterized as restraining or coercing employees
in the exercise of their rights under the Act.
The Board went on in Eagle Corntronics to find not un-
lawful an employer's statement to employees that in the
case of an economic strike, strikers "could be replaced
with applications on file."
In my view, remarks in the film here in issue were no
more incomplete or misleading than the employer's re-
marks in Eagle Comtronics. The film statements here
clearly relate that replaced employees can be "placeed
on a waiting list in case some job they're qualified for
happens to come open." The statements are clearly more
accurate and complete as to the strikers' rights than the
statements considered in Harrison Steel Castings Co.,
supra where the employer only advised employees in a
leaflet that "employees who go on strike and are re-
placed have no job to return to when the strike ends."
Even considered in context of the supervisor's implica-
tion that ultimate recall from the replaced striker list
may be uncertain and indefinite, I can find no clear
threat in the film that replaced strikers lose all reinstate-
ment rights. Accordingly, I find no violation of Section
8(a)(1) of the Act by virtue of Respondent's showing of
the film "Evelyn II."
3. Solicitation of employees to revoke their union
authorization cards
It was Holland's testimony that during the remarks to
employees on October 20 Townsend told employees to
ask their union representative for their cards back, that
the employees did not need a union to represent them
and that if they did not know how to get their cards
back they could ask the union representative or ask the
Company. Cass testified that Townsend mentioned the
cards at the meeting and said that just because employees
had signed union authorization cards did not mean that
they had to vote for the Union and that they could see
the union representative and get their cards back Simi-
larly, William Holder testified that at the employee meet-
ing on October 20 which he attended Townsend stated
that he wanted employees to go back and pick their
union cards up from Donnie Burris. Holder conceded,
however, that he could not recall Townsend's words ex-
actly in this regard, but recalled only that Townsend
wanted employees to ask for their cards back.
Townsend admitted in his testimony that he had re-
ferred to union cards in one of the meetings on October
20. More specifically he testified that employee Lynn
Williams asked if she had signed a union card did she
have to vote for the Union. Townsend told her that she
did not and that she could vote any way she wanted and
that she could possibly even ask for her card back if she
found that she signed the card in error He denied that
he asked employees at either of the meetings to ask for
their cards back, and he further denied suggesting that
the Company would help them get their cards back.
Townsend's recall of the details surrounding his refer-
ence to employees getting their union authorization cards
back appeared to be more complete. In this regard he
specifically recalled the question of Lynn Williams
which prompted his reference to the cards. Townsend's
testimony on this point was more convincing and, I be-
lieve, accurate and credible. In reaching this conclusion I
note also the absence of evidence of any actual assistance
to employees in getting their cards back or for that
matter that any employees sought, in fact, the return of
their cards. Thus, I conclude the evidence shows no
direct solicitation of employees to seek the return of
their union cards. I conclude the evidence does show,
however, a gratuitous suggestion to employees that they
could seek the return of their cards if they so desired.
The General Counsel argues that Townsend's gratui-
tous suggestion can only be interpreted as an attempt to
undermine the Union in violation of Section 8(a)(1). He
relies on Gibson Distributors, 238 NLRB 491 (1978), in
support of this argument, although he notes that R. L.
White Co., 262 NLRB 575 (1982), a later case cited in
Respondent's brief, would suggest a contrary result. The
General Counsel argues, however, that insofar as an em-
ployer's interest in employee revocation of union cards
has no business justification, Gibson is a "sounder deci-
sion."
In Gibson Distributors, an administrative law judge
found that the employer violated Section 8(a)(1) by tell-
ing employees that they "should" demand the return of
their union authorization cards as soon as possible. The
administrative law judge with Board approval found that
the employer's remarks amounted to a solicitation to em-
ployees to withdraw their cards and such solicitation was
an attempt to undermine the Union. On the other hand,
in R. L. White the Board reversed an administrative law
judge's finding that an employer had violated Section
8(a)(1) by gratuitously advising employees how to go
about getting their union cards back from the union even
though the advice included the observation that the deci-
sion to seek the return of the cards was "solely" that of
the employee. The Board explained at 506:
An employer may lawfully inform employees of
their right to revoke their authorization cards, even
where employees have not solicited such informa-
tion, as long as the employer makes no attempt to
ascertain whether employees will avail themselves
of this right nor offers any assistance, or otherwise
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
creates a situation where employees would tend to
feel peril in refraining from such revocation.
R. L. White appears to be the latest Board position on
the issue and I deem it controlling here. Moreover, if
Gibson Distributors has not been overruled sub silentio by
R. L. White, I conclude it may be distinguished on the
premise that the language utilized by the employer as re-
ported in Gibson Distributors was more in the nature of a
direction to employees to withdraw their cards. It was
not simply the gratuitous provision of information to em-
ployees regarding how they might seek the return of
their card.
Based on the foregoing and the credited evidence, I
conclude that Respondent here did nothing more than
tell employees of their right to revoke their authorization
cards. It did not offer them assistance in this regard, and,
as in R. L. White, it did not create a situation where em-
ployees would tend to feel peril if they refrained from
revoking their cards. I, therefore, find that notwithstand-
ing the absence of any business justification for providing
the employees with such information, Respondent did
not violate Section 8(a)(1) of the Act.
4. The announcement and grant of a general wage
increase to dissuade employees from union support
It is undisputed that in the 9 years prior to 1982, Re-
spondent had granted twice-a-year wage increases to its
employees except for the years 1973, 1975, 1977, and
1980. In those years in which only one wage increase
was given such increase was given either in May or July.
In those years in which two wage increases were given,
the first such increase was normally given in the first cal-
endar quarter of the year and the second increase in the
last calendar quarter. Prior to 1982, the largest single in-
crease granted to Respondent's Statesville employees had
been 30 cents per hour.
Respondent's wage increases at Statesville as referred
to above contrasted with the more consistent pattern,
timewise, of wage increases granted by Respondent to its
employees at its Baltimore facility pursuant to a collec-
tive-bargaining agreement with United Furniture Work-
ers. 6 Thus, for the 3 years prior to 1982, Respondent had
granted such employees twice yearly increases on March
1 or March 25, and September 25 of each year. The
single highest increase had been 50 cents per hour. Effec-
tive September 25, 1982, the Baltimore employees were
granted a 40-cent increase with a 10-cent increase to take
effect the following March.
It is undisputed that at a meeting with employees in
May in Statesville Townsend advised employees that the
economy was bad, business was bad, and he did not see
how the employees could be given a raise. 7 Accordingly,
' The total of the semiannual increases granted Statesville employees
was usually equivalent to the increases granted to the Baltimore employ-
ees However, prior to the November 1, 1982 wage increase at Statesville
no single Increase at Statesville had exceeded a single increase granted in
Baltimore
7 It also appears that no wage increase had been given employees in
the Baltimore plant in March 1982
no wage increases were granted at Statesville in the
spnng or summer, and Respondent's failure to grant a
wage increase at Statesville became a substantial issue in
the union campaign. Leaflets distributed to employees by
the Union on October 5, 18, and 27 played upon the ab-
sence of the wage increase at Statesville through car-
toons or specific references to wage increases granted to
Baltimore employees in late September or early October
and suggested the effectiveness of union organization in
securing wage increases.
It is also undisputed that Townsend on October 29 an-
nounced a wage increase of 45 cents per hour to be ef-
fective for Statesville employees on November 1. It is
undisputed that the wage increase was the largest single
increase ever given to Respondent's employees at States-
ville. It took effect within 10 days of the election which
was set for November 10, and employees received the
first fruits of the raise in the paychecks received the day
following the election. This wage increase was alleged in
the complaint herein to be violative of Section 8(a)(1) be-
cause it was granted to dissuade employees from their
union support.
Townsend testified that a wage increase for Respond-
ent's employees had been under consideration beginning
in July. In this regard Townsend related that he pro-
posed a wage increase to Richard Tucker, president and
chairman of Respondent's board of directors, on July 22
during a visit by Tucker to Statesville. Both Tucker and
Townsend testified that the ultimate decision regarding
the wage increase was left to Townsend, but they agreed
there was no reason not to put a wage increase into
effect. Townsend admittedly initially proposed that the
wage increase be effectuated in August prior to the con-
tract negotiations in the Baltimore plant. However,
Townsend also testified that in early August, Respondent
encountered a substantial increase in hospitalization in-
surance rates and faced the decision of whether to
absorb such rates or pass the increases on to the employ-
ees. It was decided to absorb such increases but reduced
to a degree by a corresponding reduction in benefits.
Following decision on the insurance, Townsend again
talked to Tucker regarding the wage increase, and it was
determined that a wage increase would be put into effect
in the fall but no specific date or amount was decided
upon. In this regard Townsend testified that he told
Tucker on August 18 that he had changed his mind and
was going to await the outcome of the Baltimore negoti-
ations before making a decision on wages at Statesville.
It is nevertheless clear that Townsend could have given
a wage increase prior to such negotiations.
Townsend conceded that around October 7 he was
aware of the results of the Baltimore negotiations and the
40-cents-per-hour increase agreed upon there and put
into effect as of September 25. However, while he gave
some consideration to the wage issue at Statesville,
Townsend claimed he became preoccupied with other
business and took no immediate action. He testified that
it was not until the second or third week of October that
he reached a decision to propose to Tucker an increase
of 45 cents per hour to be effective November 1. Ac-
cording to Townsend, the November 1 date was chosen
WM T BURNETT & CO 1091
because it was the first Monday of the month, and he
usually granted increases on the first Monday of the
month. Tucker agreed with Townsend's plan. Townsend
then on October 29 announced the wage increase and in
announcing it told employees that business was still not
booming, but things looked better. In announcing the in-
crease, Townsend did not refer to the union campaign
Briefly stated, the General Counsel's position is that
the wage increase announced October 29 was not "pre-
planned" even though there had been discussions be-
tween Townsend and Tucker regarding such an increase.
Because it was not preplanned, because the amount of
the increase was substantially out of line with prior in-
creases, and because of its timing just before the election
the General Counsel contends the increase was directly
responsive to the union campaign and thus designed to
interfere with the employees' free choice in the election
Respondent's argument as summed up in its brief is
that the decision to grant a wage increase was made
prior to any knowledge of union activity among the em-
ployees, was consistent with prior increases in terms of
timing and amount, and was not made with antiunion
motivation.
In NLRB v. Exchange Parts Co., 375 U.S. 405 (1964),
the Supreme Court in finding that an employer's grant of
benefits to employees during the pendency of a union or-
ganizational campaign violated Section 8(a)(1) of the
Act, stated at 409 that, "The danger inherent in well-
timed increases in benefits is the suggestion of a fist
inside the velvet glove," and "Employees are not likely
to miss the inference that the sow ce of benefits now con-
ferred is also the source from which future benefits must
flow and which may dry up if it is not obliged."
Thus, an employer's grant of benefits during the
course of union activity has a substantial potential for im-
pacting upon and interfering with such activity. An em-
ployer's course in granting benefits in such situations
must be charted to avoid the perception that the grant of
benefits is responsive to union activity. As stated by the
administrative law judge with Board approval in McCor-
mick Longmeadow Stone Co., 158 NLRB 1237 (1966):
An employer's legal duty im deciding whether to
grant benefits while a representation case is pending
is to determine that question precisely as he would
if a union was not in the picture. If the employer
would have granted the benefit because of econom-
ic circumstances unrelated to union organization,
the grant of those benefits will not violate the Act.
On the other hand, if the employer's course is al-
tered by virtue of the union's presence, then the em-
ployer has violated the Act, and this is true whether
he confers benefits because of the union or with-
holds them because of the union.
See also KDEN Broadcasting Co., 225 NLRB 25 (1976);
Russell Stover Candies, 221 NLRB 441 (1975), Montgom-
ery Ward & Co., 220 NLRB 373 (1975); Gerbes Super
Market, 213 NLRB 803 (1974).
Because of the obvious impact on employees of the
grant of a benefit during a union election campaign, the
granting of such benefits raises a strong presumption of
illegality. See, e.g., Exchange Parts Co., supra; J. P. Ste-
vens & Co. v. NLRB, 668 F.2d 767 (4th Cir. 1982); Gor-
donsville Industries, 252 NLRB 563 (1980); Chester Valley,
Inc., 251 NLRB (1980); Wmtex Knitting Mills, 216
NLRB 1058 (1975); International Shoe Co., 123 NLRB
682 (1959). More specifically, the presumption is that the
employer's motive in granting the benefit is to influence
employee choice in union representation. In view of this
presumption, the burden is that of the employer to show
that the grant of the increase was unresponsive to the or-
ganizational activity and the election.
Among the factors reflecting employer motivation in
the grant of the wage increases are the timing of the in-
creases, 8 the amount of the increases compared with
prior increases, 8 whether or not implementation of the
increases is consistent with a determination made prior to
the advent of the union campaign," and whether the in-
creases are granted in the context of unfair labor prac-
tices. 11
Considering the instant case in light of the foregoing
principles, I am persuaded in agreement with the Gener-
al Counsel's position that Respondent's wage increase
was specifically designed to thwart the Union's campaign
and influence the outcome of the election The most sig-
nificant factor in reaching the conclusion in this regard is
the timing of the announcement of the wage increase
only 12 days before the election. It is quite clear from
undisputed testimony that Townsend was authorized to
give the Statesville employees a raise anytime after his
initial discussions with Tucker in July. And even though
Townsend testified he was comptemplating giving an in-
crease in August, no increase was granted." Further,
subsequent discussions between Tucker and Townsend
looked only toward a wage increase in the indefinite
"fall" with no monetary amounts decided upon. Based
on Tucker's testimony, it was not until October 28 that
Townsend told him he had reached a final decision on
the date and amount of the increase to be granted."
This was more than 3 weeks after Townsend learned of
the amount of the increase granted the Baltimore em-
ployees, the Baltimore increase being the event he asser-
tedly awaited before deciding upon the Statesville in-
crease This delay is not credibly explained in Town-
send's testimony. Moreover, even assuming Townsend
had reached an earlier decision on the wage increase, a
predetermination does not necessarily resolve the issue of
8 Soule Glass el Glazing Co v NLRB, 652 F 2d 1055 (1st Cir 1982),
NLRB v Styletek, 520 F 2d 275 (1st Cir 1975), B-P Custom Building
Products, 251 NLRB 1337 (1980), Esquire, Inc , 250 NLRB 940 (1980)
9 St Francis Hospital, 263 NLRB 834 (1982), San Lorenzo Lumber Co.
238 NLRB 1421 (1978)
1 ° Montgomery Ward <4, Co. 220 NLRB 373 (1975)
" Alvin Metals Co. 212 NLRB 707 (1974)
12 In view of Townsend's testimony that he had decided to do away
with the semiannual wage increases at Statesville and his initial determi-
nation to give a wage increase in August. Respondent's past practice with
respect to the timing of wage increases at Statesville becomes largely im-
material insofar as it relates to the timing of the increases ultimately
granted
I a This testimony contradicted the vague and contradictory testimony
of Townsend that he told Tucker the amount of the Increase much earli-
er Tucker appeared more specific on the point having recorded the date
of his communication on the point with Townsend and is, therefore,
credited
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the legality of the increase. An announcement regarding
the increase can itself be calculated to interfere with an
election. See NLRB v. Styletek, supra. While the record
reflects that Respondent had in fact granted wage in-
creases at Statesville during early November in the years
1976, 1978, and 1979, the last fall increase prior to the
increase in the instant case was granted in October.
Moreover, although Townsend testified that the effective
date of the increase herein was decided on consistent
with the practice of making the increases effective on the
first Monday of the month, the record reveals that such
practice was honored as much in the breach as in the ob-
servation. Thus, the increases effective on November 8,
1976, November 1, 1978, and November 12, 1979, were
not effective on the first Monday of the month. Nor
were the increases granted on February 9, 1981, July 11,
1976, or July 14, 1975. The timing then of Respondent's
prior increases must be regarded as erratic and not total-
ly consistent.
In view of the foregoing, the timing of the wage in-
creases here is only understandable as a response to the
union campaign, particularly in light of the undisputed
fact that on October 27, 2 days prior to the wage in-
crease announcement and 1 day before Townsend
reached his decision and related it to Tucker, the Union
had distributed to the employees a leaflet in which it had
made much of Respondent's failure to give an increase at
Statesville while granting an increase to Baltimore em-
ployees. It is more reasonable to conclude, and I so con-
clude, that the determination regarding the increase and
its effective date was reached on October 28 in direct re-
sponse to the Union's leaflet the day before This conclu-
sion is buttressed by the fact that the increase was sub-
stantially larger than any single prior increase" for
Statesville employees and surpassed the 40 cents per
hour 1982 increase negotiated for Respondent's Baltimore
employees.
Respondent's motivation regarding the Statesville in-
crease is further impugned by Townsend's own admis-
sion that at the time of the wage increase while business
had improved some employees were still working short
weeks. And Townsend, in order to emphasize Respond-
ent's benevolence in the matter, admittedly advised em-
ployees when announcing the increase that Respondent
could not raise its prices "sufficiently to pay for this kind
of increase." The implication of Respondent's benevo-
lence was not likely to be overlooked by the employees
because of its timing in relation to the union October 27
leaflet and because Townsend failed to disavow any rela-
tionship between the increase and the union campaign.
Finally, it is to be noted that the increased wages did
not show up in the employee paychecks until the day
after the election. Accordingly, had Respondent's motive
not been improper, it could have avoided any announce-
ment of the wage increase without either disturbing the
effective date of the increase or otherwise penalizing the
employees. Under these circumstances, it is difficult to
perceive, and there is no evidence in the record explain-
ing, why the announcement could not reasonably have
14 The November 1 increase also exceeded the cumulative Increases
each year for Statesville employees for all prior years except 1979
been delayed. As the General Counsel's brief points out,
an employer's failure to show why preelection announce-
ments of benefits could not reasonably have been de-
layed evidences improper motivation in such announce-
ments. J. P. Stevens ci Co., supra, enfg. 244 NLRB 407
(1979); International Shoe Co., supra.
Considering all the foregoing, I conclude that the
record evidence establishes a prima facie case which Re-
spondent has failed to rebut that Respondent's decision
to grant the increase to Statesville employees and the
timing of its announcement of the increase was calculat-
ed to interfere with the employees' Section 7 rights and
to interfere with the outcome of the election. By this
conduct with respect to the wage increase, I find Re-
spondent violated Section 8(a)(1) of the Act as alleged in
the complaint.
5. Interrogation of employees concerning their
union sympathies
The General Counsel amended his complaint at the
heanng to allege that Respondent through its supervisor,
John McCall, interrogated employees concerning their
union sympathies. The allegation is based on testimony
of employee Allie Bunton who testified that on Novem-
ber 8, John McCall, an admitted supervisor within the
meaning of the Act, tossed a button over on the table
utilized by Bunton and employee Nancy Mayberry in
their work. The button contained the legend, "2 is com-
pany, 3 is a crowd," an obvious reference to Respond-
ent's position that employees did not need a Union.
Bunton concluded that the button was flipped toward
him and he picked it up and wore it for the remainder of
the day. According to Bunton, he had in no way solicit-
ed the button from McCall.
William Holder gave a somewhat different version of
what occurred. He testified that he saw McCall give out
buttons to Mayberry and Bunton. According to Holder,
McCall simply handed the buttons to the two. While
Bunton put his on, Mayberry put hers in her pocketbook.
Holland gave a similar version in his testimony but
added that employee Robert Caldwell, observing
McCall's giving the buttons to Mayberry and Bunton,
asked McCall for a button. McCall's response was to
shake his head negatively.
McCall testified that on or about November 8 he had
one of the buttons in issue which had been given to him
by his son, employee Ronnie McCall. McCall said he
had no use for the button so he flipped it to one of his
employees, specifically Nancy Mayberry. She missed the
button, and it fell to the floor, but she picked it up. Ac-
cording to McCall, he gave out no other button to any
other employee. McCall testified he did not know where
the button originated, and he had never seen any before
that evening. He did see Bunton wearing such a button
the next day but insisted that he flipped the button only
to Mayberry. McCall testified Mayberry had already
told him she was against the Union.
The testimony of the four witnesses who testified on
this issue cannot be reconciled. The testimony of Bunton
and McCall is closest, and they appear to be in agree-
ment at least to the extent that McCall flipped the button
WM T BURNETT & CO. 1093
toward Bunton's area rather than simply handing Bunton
the button as the other witnesses claim Accordingly,
and because Bunton impressed roe as a honest individual
with a generally good recall of the affair, I credit his
version where it differs from that of other witnesses. I
conclude that Bunton picked up the button which
McCall testified he had flipped to Mayberry
It is the position of the General Counsel that McCall's
unsolicited distribution of the antiunion button constitut-
ed unlawful interrogation because it forced Bunton to
make a declaration of his union sympathies. Respondent
argues, on the other hand, that in the absence of evi-
dence of a general distribution of the buttons by Re-
spondent, McCall's conduct with respect to the buttons
cannot be regarded as designed to cause employees to in-
dicate their union sympathies Respondent contends that
under these circumstances the incident with Bunton must
be regarded as isolated and noncoercive. I agree.
In Kurz-Kasch, 239 NLRB 1044 (1978), cited in the
General Counsel's brief, three supervisors were found to
have solicited employees in the midst of a union organi-
zational campaign to wear "NO" buttons. The Board in
finding a violation of the Act stated:
It is well established that an employer's request
during an election campaign that an employee wear
a "Vote No" button or other pro-employer insignia
constitutes a form of interrogation because, by
agreeing or refusing to wear the button, the em-
ployee is forced into an open declaration either for
or against the Union. Thus, the request of [the three
supervisors] to individual employees clearly consti-
tuted coercive interrogation in violation of Section
8(a)(1).
A similar decision was reached by the Board in Kaw-
neer Co., 164 NLRB 983 (1967). However, the distribu-
tion of antiunion material by an employer is not unlawful
in itself absent some form of coercion or pressure on an
employee to receive the material. McDonald's, 214
NLRB 879 (1974); Farah Mfg. Co., 204 NLRB 173
(1973) Moreover, in Acute Systems, Ltd. the administra-
tive law judge, with Board approval, found no unlawful
interrogation even where a supervisor, without a prior
request from the employee, pinned a "Vote No" button
on the employee and then immediately left the plant.
The administrative law judge stated at 882-883:
Although [the employee] did not so characterize
[the supervisor's] action, it appears to have been
more a playful gesture than any serious campaign-
ing. It occurred at the end of the day when people
were about to leave Since [the supervisor] appar-
ently did not stay on to see whether [the employee]
kept the button on or removed it, it can hardly be
inferred that [the supervisor's] pinning the button on
[the employee] was designed as a means of deter-
mining the employee's views.
I view the circumstances in the Instant case based on
the credited facts to be as innocuous as those circum-
stances reflected in Acute Systems. If McCall had been in-
clined to cause Bunton to declare his union sympathies,
it is more likely that he would have offered the button
directly to Bunton rather than flipping it on a table
where it was accessible to another employee, Mayberry.
Bunton could have left the button where it lay without
in any way indicating his union inclinations. In addition,
in considering the violative nature of McCall's conduct,
it must be observed that no other violations of the Act
were attributed to McCall in particular and no other vio-
lations consisting of unlawful interrogation were attrib-
uted to Respondent generally. Accordingly, I find this
incident to be like the one considered in Acute Systems,
which was termed "essentially isolated and noncoer-
cive." I, therefore, find no violation of Section 8(a)(1) of
the Act based on this incident.
B. The Objections to the Election
The violation of Section 8(a)(1) of the Act found
above with respect to the wage increase is coextensive
with the Union's Objection 5 to the election. A violation
of Section 8(a)(1) of the Act a fortiori constitutes objec-
tionable conduct affecting the results of the election.
Dal-Tex Optical Co., 137 NLRB 1782 (1962). According-
ly, merit is found to the Union's Objection 5, and it shall
be recommended that the election held on November 10
be set aside. The Union's other Objections 3 and 7 and
"other acts" are coextensive with the complaint allega-
tions discussed above and found to be lacking in merit.
Accordingly, it shall be recommended that these objec-
tions be dismissed as also lacking in merit.
C. The Appropriateness of a Bargaining Order to
Remedy Respondent's Unfair Labor Practices
1. The validity of the union authorization cards for
majority purposes
The complaint as amended alleges that Respondent's
unfair labor practices are so serious and substantial in
character and effect as to warrant the entry of a remedial
bargaining order requiring Respondent as of September
22, the date it allegedly embarked on its alleged unfair
labor practices, to recognize and bargain with the Union.
In this regard, the General Counsel relies on the princi-
ples announced in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969), wherein the Court established standards
under which bargaining orders may be utilized to
remedy unfair labor practices Such standards are as fol-
lows: (1) a bargaining order may be granted where an
employer's unfair labor practices are "outrageous" and
"pervasive"; (2) a bargaining order may be granted in
less extraordinary cases marked by less pervasive unfair
labor practices which nonetheless still have a tendency
to undermine majority strength, and (3) a bargaining
order is not appropriate in cases involving minor or less
extensive unfair labor practices "which, because of their
minimal impact on the election machinery, will not sus-
tain a bargaining order."
Important to the issue of the appropriateness of a bar-
gaining order in a case such as this is the majority status
of the union as reflected by some means other than an
election, usually by authorization cards. To establish the
Union's majority status here, the General Counsel intro-
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced in evidence the authorization cards executed by 24
of Respondent's employees in a unit which Respondent
contends consists of 40 employees."
The Union's International representative Donnie
Burns identified the union authorization cards of five
employees, Tony Bost, Robert Davidson, Leon Felts,
Ben Mills, Herb Pinnix, and George Cauthern. With the
exception of the card of Pinnix, which was dated Octo-
ber 19, the other cards solicited by Burns were dated
September 16 and 17. According to Burris' testimony he
solicited the cards from employees either at the home of
the employee or in Burns' motel room. Burns testified
that in each case he read the cards to the employees and
stated the purpose of the cards was to designate the
Union as their representative so that they could obtain a
union. The cards solicited by Burris, as were all the
cards involved in this case, were regular single purpose
union authorization cards reflecting that the signer au-
thorized the Union to act as his collective-bargaining
agent in dealing with his employer in regard to wages,
hours, and other terms and conditions of employment.
The cards also contained language revoking all previous
authorizations.
Respondent contested the validity of the cards solicit-
ed by Burris on the basis of the testimony of employees
Davidson, Mills, and Bost. Davidson testified that he had
signed his union card at a meeting after Burris had told
employees at the meeting that the main purpose of the
cards was to get an election at the plant. Davidson con-
ceded on cross-examination that Burris had stated he was
there to try to help the employees obtain a union and
that the way they went about getting a union after they
got cards signed was to file a petition with the Board.
Mills testified he could not recall who asked him to
sign the card and even expressed some uncertainty as to
where he was at the time his card was signed. Neverthe-
less, he testified that he was told that the cards were just
to get enough people so that they could have an elec-
tion. He admittedly read the card before he signed it,
however, and conceded that he was also told that the
Union wanted to get in the Company so it could be the
employees' bargaining representative.
Bost exhibited confusion about the basis for having
signed his card, and while admitting that he read the
card before he signed it, he could not recall any specific
misrepresentations made to him regarding the purpose of
the card. Rather, he testified (contrary to a statement he
had given to Respondent on June 9, 1983, to the effect
that a union representative had told him that the card
was only to get an election or it was to be used to get an
election) that nobody actually told him what the union
authorization card was for.
Even assuming that Burns referred to the use of the
cards in obtaining an election, such reference in and of
itself is insufficient to invalidate the cards for majority
purposes. As the Supreme Court said in Gissel Packing
Co., supra at 606:
15 This includes Wanda Hector whom Respondent, contrary to the
General Counsel, contends is not a supervisory employee, and Charlotte
Sutton whom Respondent contends, again contrary to the position of the
General Counsel, is a regular part-time employee The inclusion of these
two employees in the unit will be discussed Infra
[E]mployees should be bound by the clear language
of what they sign unless that language is deliberate-
ly and clearly cancelled by a union adherent with
words calculated to direct the signer to disregard
and forget the language above his signature. 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.
Cards may be counted for majonty purposes so long as it
is established that the card signer was not told that the
card was to be used solely for the purpose of obtaining
an election. Levi Strauss & Co., 172 NLRB 732 (1968);
Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd.
351 F.2d 917 (6th Cir. 1975). Subjective intent of the
card signer does not bear on the validity of the card, and
even where an employee signs a card on the belief it will
be used to obtain an election, the card will still constitute
a valid union designation so long as no misrepresenta-
tions were made by the solicitor as to the purpose of the
card. Henry I. Siegel, Inc., 165 NLRB 493 (1967).
Burns' testimony impressed me as honest and clearly
more credible than Davidson, Mills, and Bost who were
obviously confused and unclear regarding statements
made attendant to their card signing. I credit Burris and
conclude he made no statements in solicitation calculated
to mislead or misrepresent the purpose of the cards. Ac-
cordingly, I find the cards of Davidson, Mills, and Bost
valid designations of the Union for establishing the
Union's majority status herein. I likewise find the other
cards solicited and identified by Burris to be valid union
designations.
Employee Charles Holland identified his own card and
the cards of four other employees whom he had solicit-
ed, Robert Caldwell, Michael Blevins, Donnie Allison,
and Nancy Mayberry. Holland testified that he told such
employees that if they still felt strongly about the Union
to read the card and sign it and that the card was for
union representation
Holland's testimony regarding the solicitations was dis-
puted only by Michael Blevins who testified for Re-
spondent Blevins testified that Holland told him in solic-
iting the card that the card was just saying that Blevins
agreed to come to the union meetings and hear what the
Union had to tell him. Further, on cross-examination
while admitting that he read the card before he signed it,
Blevins added that Holland told him that the card meant
simply that the individuals in the Union whom the em-
ployees would be dealing with would sponsor the em-
ployees. Additionally, Blevins related that although Hol-
land explained that by signing the card Blevins would
not be obligated to join the Union, Holland added that
signing the card meant that the Union could help them
with respect to wages and "things in the Company."
Moreover, he conceded that Holland may well have told
him the card was for the Union to represent the employ-
ees Even accepting Blevins' testimony regarding Hol-
land's representations, I find no material misrepresenta-
tions which would affect the validity of Blevins' card in
establishing the Union's majority status.
WM. T. BURNET'T & CO 1095
Two cards were identified by employee William
Holder, one signed by himself, and one signed by his
brother David Holder. William Holder related that he
read the card he signed and dated September 16 and tes-
tified that he observed his brother David Holder sign his
card in the parking lot at the Company. He testified he
observed David Holder read the card before he signed it
David Holder, called by Respondent, testified that no
one specifically asked him to sign the union card but
claimed he was told at some time by someone whom he
could not recall that the card was to try to get the Union
in where they could have a vote. Nevertheless, Holder
executed a statement for Respondent dated June 9, 1983,
in which he asserted that he went to several meetings
where the Union explained the purpose of the cards and
the Union agents said "the sole purpose of the cards was
to get an election." David Holder also signed a statement
for the General Counsel dated June 16, 1983, in which
he stated that he had gone to union meetings in an earli-
er union campaign and "knew the cards were to get a
union in at Burnett." David Holder impressed me as a
very confused witness with an extremely poor memory
which undermines the accuracy of his recall concerning
his claim that he signed the card only after the represen-
tation by an unidentified solicitor that the "sole purpose"
of the card was to get an election Accordingly, I do not
credit David Holder and based on his own admission
that he read the card, I can find no reason why he
should not be bound by the clear language of what he
signed. I find the cards of William and David Holder to
be valid designations of the Union for majority purposes.
Employee Geoffrey Moose, called by the General
Counsel, identified his authorization card dated Septem-
ber 17 which Moose admittedly read before he signed.
However, Moose also executed a statement for Respond-
ent dated June 10, 1983, in which he related that an em-
ployee had asked him to sign a card stating "the sole
purpose of the card was to get an election." But, in fur-
ther testimony, he contradicted that statement stating
that nobody really told him what the card was for. Nev-
ertheless, he further testified that he was told at a union
meeting that there was no obligation in signing the card
and that the cards were just for an election. On still fur-
ther questioning, he explained that such statements were
made in an earlier union campaign and not during the
campaign in the fall of 1982. In view of Moose's con-
fused and contradictory statements regarding representa-
tions made to him concerning the use of the card, I find
the circumstances do not clearly and convincingly show
that any misrepresentations were made to Moose which
would justify the disregard of the clear and unambiguous
language on the face of the card signed by Moose. Ac-
cordingly, I find the card valid for majority purposes.
Respondent did not specifically attack the validity of
the cards executed by Michael Moose, Jerry Brown,
Larry Cass, James Speller, or Lynn Williams. Accord-
ingly, the cards executed by these employees are found
to be valid for the purpose of establishing the Union's
majority status. The Respondent did contest the validity
of the cards of John Brown, Martha Teastor, and James
Parks. The card of John Brown, who had died prior to
the hearing, was identified by his son Jerry Brown, also
an employee of Respondent, who further testified regard-
ing the circumstances of the execution of the card. Thus,
Jerry Brown testified that he signed the card for his
father after reading it to him. According to Jerry Brown,
John Brown was illiterate and, although Brown could
execute his name, he frequently had his son execute doc-
uments for him. Thus, Jerry Brown testified that he fre-
quently endorsed his father's paycheck, and the banks
customarily honored the endorsement. Moreover, he had
authorization to conduct other banking transactions for
his father. Jerry Brown testified that in addition to read-
ing the card to his father, he explained to his father that
signing the card would give the Union permission to act
as his agent. With respect to an election, Jerry Brown
told his father that they had to have over 51 percent of
the employees' signatures on cards to have an election
and that if the Union won the election the Union would
try to negotiate a contract with the Company and the
employees would be given an opportunity to then
become union members. There was further discussion of
the pros and cons of the Union before Jerry Brown was
given permission to execute the card for his father. Jerry
Brown's testimony impressed me as candid, accurate, and
credible. Accordingly, and while recognizing that con-
sideration of the statements and actions attributed to de-
ceased persons must be "subject to the closest scrutiny
before deciding what weight to be given it," [Wallick &
Schwalm Co., 95 NLRB 1262 (1951), enfd. 198 F.2d 477
(3d Cir. 1952)]! credit the testimony of Jerry Brown and
find that he was authorized to execute the authorization
card on behalf of John Brown. As the General Counsel's
brief points out, the Board has long held that an individ-
ual may direct another to sign a union card in his behalf
without affecting the validity of the card for majority
purposes. See Standard-Coosa-Thatcher, 257 NLRB 304
(1981), Essex Wire Corp., 188 NLRB 397 (1971). I, there-
fore, find that the card executed for John Brown consti-
tutes a valid designation of the Union in establishing the
Union's majority status here.
The card of employee Martha Teastor was identified
by Alice Beck, an organizer for the Union. Beck testified
that she solicited the card which is dated November 4,
1982, from Teastor stating that the card was to show
that Teastor wanted to be represented by the Union To
Teastor's question whether anyone would know whether
she had signed a card, Beck replied that they would if
the matter ever went to a hearing but not otherwise.
Teastor replied that she really did not care, that she
wanted to be represented by the Union, and she went
ahead and executed the card. Teastor, on the other hand,
testified for Respondent that Beck told her that the au-
thorization card was "to get the election in." Beck's tes-
timony was clear and straightforward, and Respondent
elected not to cross-examine her. I credit Beck over
Teastor. Moreover, I find it highly improbable that Beck
would have represented to Teastor that the card was to
be used to get an election since the election was already
scheduled at the time Teastor executed the card. Ac-
cordingly, I find Teastor's card to be a valid designation
of the Union for majority purposes.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also attacks the validity of the cards of
employees Joseph Gatton, Jesse Lewis, and James Parks
claiming these employees also relied on misrepresenta-
tions as to the purpose and effect of their cards. In this
regard Respondent points to the testimony of Gatton
that he did not read the union card he signed, and he
was told that "if we had enough participation filling out
the cards that there would be a good possibility there
would be an election." Similarly, Lewis also testified that
at union meetings he attended there was reference to an
election, and it was stated that "If we didn't get enough
cards we wouldn't have an election." In concluding that
the cards of Gatton and Lewis constituted valid union
designations, I note that both Gatton and Lewis ac-
knowledged other purposes of the card than "getting an
election." Thus, Gatton, who also testified that no specif-
ic representation was made to him regarding the purpose
of the card when he signed it, relied on his experience in
prior union campaigns and asserted that the other union
authorization cards he had previously read indicated the
cards gave the union the right to be the employees' bar-
gaining agent. He testified he had assumed the cards he
signed herein stated the same thing. Further, considering
the whole of Gatton's testimony including his failure to
identify anyone as making a reference to an election in
connection with the use of the cards in the instant case, I
conclude Gatton was testifying about remarks made con-
cerning the use of the cards in prior campaigns. Lewis in
his testimony also referred to his experience in prior
campaigns and explained that upon hearing what the
Union was all about, he "liked" it. Indeed, in the cam-
paign here involved, Lewis specifically asked for a union
authorization card and, asked on cross-examination if
anything else was said to him about the purpose of the
card other than to obtain an election, Lewis responded,
"To better ourselves," and "I was all for that."
Respondent attacks the validity of Parks' card on the
basis of a prehearing statement of Parks, given to Re-
spondent's attorney in which Parks said an unnamed
union agent told him the card "was solely for the pur-
pose of getting an NLRB election" However, in his tes-
timony, Parks testified he was told by an employee that
the card was to see about getting a union in. He added
on further cross-examination, that he was also told that
the card was "just to see if we can get the union in the
plant, you know, if we got enough of them, we could
get enough to hold an election." He testified he took the
card home and talked the Union over with his wife and
signed the card only after concluding that it would "be a
good thing" He specifically revoked the use of the word
"solely" in the statement he executed for Respondent's
attorney and attnbuted the origin of the word to Re-
spondent's attorney. Under these circumstances, I find
Parks' card to be a valid union designation for majority
purposes.
2. Disputed inclusions in the unit
Respondent asserts that Charlotte Sutton, a part-time
sewer in its cushion plant, located more than a mile from
its main plant was inadvertently excluded from the
voting eligibility list and is appropriately includable in
the unit in which the election was held. Sutton's job
duties were no different from those of the regular cush-
ion plant employees, but she received none of the fringe
benefits of the regular employees. Although Townsend
testified that Sutton was a part-time employee, and as
such was limited to 32 hours of work per week, Re-
spondent's payroll records for Sutton reflected that on at
least two occasions in August, Sutton worked 40 or
more hours per week. According to Townsend, Sutton
not only filled in for vacationing or absent employees but
was generally utilized on an as-needed basis. Sutton's last
appearance on Respondent's payroll before the election
was on the week ending October 31. She did not appear
again on the payroll until the week of November 28
when she worked 24 hours. She did not appear on the
payroll thereafter.
The General Counsel contends that Sutton was a sea-
sonal, casual, or intermittent employee who had no com-
munity of interest with the unit employees and was,
therefore, ineligible for unit inclusion. He urges that Re-
spondent's failure to include her on the eligibility list was
no error and that its present efforts to include her are
simply afterthought.
Examination of the pay record of Sutton reveals that
from May 23 through October 31 she worked in all but
approximately 4 workweeks, and for the great majority
of those weeks in which she worked, she worked in
excess of 30 hours. There is no evidence that she quit or
became unavailable after October 31, the last week she
worked prior to the election. Since she did work in the
week ending November 28, it is reasonable to infer that
she remained available for part-time work between Octo-
ber 31 and November 21. I, therefore, conclude she was
a regular part-time employee and was, therefore, eligible
for inclusion in the unit. See Davison Paxton Co., 185
NLRB 21 (1970).
The General Counsel would exclude from the unit
Wanda Rector on the basis of her alleged supervisory
status. Respondent denies the existence of any superviso-
ry authority in Rector and argues for her inclusion.
Rector worked in the cushion plant with about five
other employees. Prior to her retirement on September
17, Ann Peacock supervised the cushion plant and, ac-
cording to the testimony of employee Cass, Townsend in
announcing Peacock's retirement related that Rector
would thereafter be in charge of the cushion plant. Em-
ployee Holland testified that Townsend said Rector
would be a supervisor. Townsend denied both state-
ments. I credit Townsend's denial here. The fact that
Cass and Holland contradict each other leaves the im-
pression they were testifying as to their own individual
conclusions regarding Townsend's comments rather than
his actual remarks. Moreover, Townsend's undisputed
testimony that Rector, who is hourly paid as contrasted
to Peacock's salaried position, received no raise or other
increase in benefits as a result of Peacock's retirement,
mitigates against an announcement that she had been ele-
vated in position.
Respondent describes Rector as a leadperson for the
past year and a half who spent over 50 percent of her
time doing machine work. The remaining portion of her
time was spent filling job orders, preparing shipments,
WM T. BURNE'TT & CO 1097
and communicating with the main plant manager. She re-
ceived her directions and instructions from both the
plant manager and Townsend. According to Townsend's
testimony, uncontradicted in this regard, Rector had no
authority to hire, fire, or discipline employees and had
never recommended such action. According to Town-
send, Rector would have authority to discipline employ-
ees only after obtaining approval of the plant manager.
It is undisputed that Rector possessed a key to the
cushion plant and was responsible for its opening and
closing. That fact in addition to the fact that Rector re-
mained the only person with any degree of authority in
the cushion plant the vast majority of the time strongly
suggests that Rector possesses supervisory authority."
Ostensible supervisory authority is not determinative and
suspicion does not establish supervisory status. Accord-
ingly, and recognizing the need "to be alert not to con-
strue supervisory status too broadly because the employ-
ee who is deemed a supervisor is denied employee rights
which the Act is intended to protect" (Westinghouse
Electric Corp. v. NLRB, 424 F.:ad 1151, 1158 (7th Cir.
1970), cert. denied 400 U.S. 831 (1970)), I conclude that
a preponderance of evidence fails to show that Rector
possessed the authority required under Section 2(11) of
the Act to constitute her a supervisor.
3. The Union's majority status
Based on the foregoing, I conclude that as of Septem-
ber 17 the unit consisted of 40 employees, including
Sutton and Rector, and of those 40 employees the Union
had obtained valid authorization cards from 22 employ-
ees. The Union increased its majority status to 23 having
obtained a valid authorization from employee Herbert
Pinnix on October 19. It enjoyed majority status through
October 29 when Respondent engaged in the unfair labor
practice found above in the announcement of the wage
increase. The Union's majority status was not subse-
quently affected by the departure of employee Michael
Blevms, a card signer, on November 4 because the Union
received an additional valid union designation from em-
ployee Martha Teastor on that date as found above. I
conclude, therefore, that the Union enjoyed a majority
status based upon valid authorization cards at all material
times herein.
4 Conclusions with respect to a bargaining order
Having found on the basis of the cards that the Union
represented a majority of Respondent's employees in an
appropriate unit and also having found Respondent en-
gaged in unfair labor practices in announcing and grant-
ing a wage increase to thwart the Union, there remains
the issue of whether Respondent's conduct falls within
one of the Gissel categories set forth above so as to war-
rant the entry of a remedial bargaining order. Here the
Respondent's violations of the Act consisted solely of its
having unlawfully announced and granted a general
16 In this regard the record shows that while the plant manager visits
the cushion plant daily, Townsend and Respondent's treasurer only visit
the cushion plant two to three times a week One of Respondent's sales-
men daily visits the plant, but appears to have no supervisory authority
there
wage increase to its employees. Board and Court prece-
dent appear to have gone both ways on similar cases.
Thus, no bargaining order remedy was provided by the
Board in Walgreen Co., 221 NLRB 1096 (1975), where
the Board concluded that an unlawfully motivated wage
increase, even when considered in conjunction with
some other minor violations of the Act, had no irreme-
dial effect on the election process. Its reasoning in this
regard was briefly stated as follows:
The wage increase, although found to have been
unlawfully motivated, was not specifically tied to
the organizing campaign by the Respondent. Similar
raises had been granted some 4 months earlier at the
Respondent's other stores and the increases did no
more than bring the employees up to the prevailing
rate. Indeed, the later point was relied on by the
Respondent to explain the increases to the employ-
ees.
A different result was reached in other cases involving
very similar situations. See, e g, J. J. Newberry Co., 249
NLRB 991 (1980), enf. denied in pertinent part 645 F.2d
148 (2d Cir. 1981); Appletree Chevrolet, 251 NLRB 666
(1980), enf. denied in pertinent part 671 F.2d 838 (4th
Cir. 1982); Honolulu Sporting Goods Co., 239 NLRB 1277
(1977); Skaggs Drug Centers, 197 NLRB 1240 (1972),
enfd. 84 LRRM 2384 (9th Cir 1973); Tower Records, 182
NLRB 382 (1970), enfd. 79 LRRM 2736 (9th Cir. 1972);
C & G Electric, 180 NLRB 427 (1969); J. C. Penney Co.,
160 NLRB 279 (1966), enfd 384 F.2d 479 (10th Cir.
1967). See also Royal Aluminum Foundry, 208 NLRB 102
(1974); Soil Mechanics Corp., 200 NLRB 544 (1972).
In J. J. Newberry, supra at 993, the Board said "Re-
spondent's grant of a substantial wage increase to all unit
employees in violation of Section 8(a)(1) of the Act, is
sufficient to render it unlikely that a fair election could
be held." In Appletree Chevrolet, supra at 668, the Board
stated that "the granting of benefits or announcement
thereof is conduct which cannot be erased, for the bene-
fits will remain in effect and serve as a constant reminder
to employees of the Respondent's use of economic weap-
ons to defeat the Union." And in Soil Mechanics Corp.,
supra, where a wage increase to only three of six union
adherents was found to be sufficient to justify a Gissel
bargaining order, the Board concluded at 545 that, "The
impact of such increases on employees was as great as, if
not greater than, a general wage increase and would
have a lingering effect making the possibility of holding
a fair and free election unlikely"
The Board's justification for granting a bargaining
order in such cases was detailed in the administrative law
judge's decision, adopted by the Board, in Tower Enter-
prises, supra at 387:
It is a fair assumption that in most instances where
employees designate a Union as their representative,
a major consideration centers on the hope that such
representative may be successful in negotiating
wage increases. Certainly this appears to have been
an important consideration in the instant case. A
unilateral award of a wage increase by an employer
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following a Union's demand for recognition results
in giving the employees a significant element of
what they were seeking through Union representa-
tion. It is difficult to conceive of conduct more
likely to convince employees that with an important
part of what they were seeking in hand union repre-
sentation might no longer be needed. An employer
may have the right to persuade the employees that
representation is not in their best interest, but it
does not have the right to threaten them or confer
benefits on them which are designed to influence
the employees against choosing a representative.
When, as here, an employer does so, free choice in
a subsequent election becomes a matter of specula-
tion so long as the effects of the interference remain
unremedied.
Further explication was set forth by the Board in
Skaggs Drug Centers, supra at 1241:
It is apparent that the wage increase was granted to
thwart the employees' organizing initiative. It is
also apparent that our traditional remedies, which
do not include a requirement that the wage increase
be rescinded, cannot irradicate the impact of Re-
spondent's action. Such impact would continue to
influence employee choice in a rerun election were
one to be directed, for, whether or not the wage in-
crease remained in effect, employees are not likely
to miss the inference that "the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged." NLRB v. Exchange Parts, 375 U.S. 405.
We conclude therefore that by the grant of a sub-
stantial wage increase, Respondent has precluded
the running of a fair rerun election and that the au-
thorization cards signed by employees are a more
reliable measure of their desire for union representa-
tion than would be the results of a rerun election.
Accordingly, to effectuate those desires, and as a
bargaining order is 'the only available effective
remedy,' we shall order Respondent to bargain with
the Union as the representative of the employees in
the appropriate bargaining unit.
It appears that the Walgreen case, if not outside the
mainstream of Board law in this area, must be regarded
as a rather narrow exception to what appears to be the
Board's general position that unlawfully motivated wage
increases are sufficient in themselves to justify a bargain-
ing order under Gissel. In any event, I believe the Wal-
green case may be distinguished from the instant case, for
there the wage increases simply brought employees up to
the prevailing rate at the employer's other locations. In
the case sub judice Respondent granted Statesville em-
ployees a greater single increase than that granted its
Maryland employees which were represented by a union.
There was no evidence that employees herein were told
that the increases were simply to put them on a par with
the Baltimore employees. The Statesville increases,
having gone beyond what employees might have hoped
to secure through selection of the Union serve to remove
a substantial motivation for the selection of the Union
Secondly, while Respondent here in announcing the
wage increase did not, as in the Walgreen case, specifical-
ly tie the wage increase to the Union, it was not neces-
sary, for the wage increase followed by only 2 days the
union leaflet which made much of the absence of an in-
crease for Statesville employees. The employees were
hardly likely to escape the connection, particularly since
the Respondent did not disavow the obvious connection.
I deem the reasoning and conclusions of the Board in
determining the appropriateness of a bargaining order in
Tower Enterprises and Skaggs and that line of cases"
fully applicable to the instant case. Accordingly, I con-
clude that here a fair rerun election cannot be held in the
face of Respondent's grant of the general wage increase,
an unfair labor practice which cannot be eradicated by
traditional remedies. Under these circumstances, I con-
clude that the authorization cards executed by a majority
of Respondent's employees remains the more reliable
measure of their desires for representation and a bargain-
ing order "the only available effective remedy." Consist-
ent with the teachings of Trading Port, 219 NLRB 298
(1975), the bargaining order here recommended shall run
from October 29, the Union having achieved its majority
status prior to that time and the Respondent having em-
barked on its unfair labor practices on that date.
CONCLUSIONS OF LAW
1. Respondent 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. Respondent did not solicit grievances of its employ-
ees and imply that they would be remedied, threaten em-
ployees with loss of jobs or loss of existing benefits if
they selected the Union, solicit employees to revoke
union authorization cards, or interrogate employees con-
cerning their union sympathies and, therefore, did not
violate Section 8(a)(1) of the Act in these respects.
4. By announcing on October 29, 1982, and thereafter
granting on November 1, 1982, to its employees a gener-
al wage increase in order to dissuade employees from
supporting the Union, Respondent engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. All production and maintenance employees, truck-
drivers, and leadpersons employed by the Employer at
its (Main) 2550 W. Front Street and (Cushion) Taylors-
ville Road, Statesville, North Carolina facilities; exclud-
ing all office clerical employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
6. At all times on and after October 29, 1982, the
Union has represented a majority of the employees in the
unit described in paragraph 5 above and has been the ex-
17 As already indicated herein, the Board's orders in J J Newberry and
Appletree Chevrolet were not enforced by the respective courts of appeals
However, I must respectfully observe that I am bound by Board prece-
dent which the Board or the Supreme Court has not reversed See Iowa
Beef Packers, 144 NLRB 615 (1963), Novak Logging Co, 119 NLRB 1573
(1958), Insurance Agents' International Union, 119 NLRB 768 (1957)
WM T. BURNETT & CO 1099
clusive bargaining representative of the employees in said
unit.
7. By engaging in the unfair labor practices set forth in
paragraph 4 above, Respondent undermined the Union's
majority status and precluded the holding of a fair rerun
election thereby making a bargaining order an appropri-
ate remedy for such unfair labor practices.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it cease and
desist therefrom, and that it take certain affirmative
action which I find necessary to remedy and remove the
effects of the unfair labor practice in which it engaged
and to effectuate the policies of the Act.
Having found that by unlawfully granting a general
wage increase to its employees in order to thwart their
union activity Respondent engaged in conduct which
interfered with the election held on November 10, 1982,
I recommend that the election in Case 11-RC-5110 be
set aside. Having further found that a bargaining order is
warranted under the circumstances of this case, I further
recommend that the petition in Case 11-RC--5110 be dis-
missed and that all proceedings held in connection there-
with be vacated and set aside.
[Recommended Order omitted from publication.]