Airtex

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1135 (N.L.R.B. 1992)

1135
308 NLRB No. 165
AIRTEX
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We agree with the judge’s finding that the Respondent’s presi-
dent and owner, Ron Junkert, threatened employees that it would be
futile to select the Union as their bargaining representative during
his restaurant conversation with employees Bruce Dew and Ken
Ewert on September 14, 1990. We note that the statement at issue
did not stand alone. Junkert also threatened Dew with job loss, to-
gether with specific offers of a supervisory position and the blan-
dishment ‘‘things could be better’’ if Dew eschewed his support for
the Union. Junkert thereby browbeat Dew, the leading union adher-
ent, in a face-to-face encounter in the presence of another employee.
In this context, Junkert’s statement that he had only to negotiate with
the Union, not sign a contract, and negotiations could last a year,
was not a mere statement of the law as argued by the Respondent.
Rather, in this context, it was coercive and, indeed, a threat that em-
ployee support for the Union would be futile. See Scotch & Sirloin
Restaurant, 269 NLRB 436, 439 (1984). We adopt the judge’s find-
ing that the Respondent’s unilateral implementation of a health in-
surance plan in June 1991 violated both Sec. 8(a)(1) and Sec. 8(a)(5)
of the Act (see sec. C,3, and the remedy section of the judge’s deci-
sion) for the reasons stated by the judge. We also note in addition,
should the revised tally of ballots show that the Union won the elec-
tion, that an employer acts at its peril in making changes in terms
and conditions of employment during the period that objections to
an election are pending and the final determination has not yet been
made. Mike O’Connor Chevrolet-Buick-GMC Co., 209 NLRB 701,
702 (1974).
3 The General Counsel, in his exceptions, alludes to the fact that,
after the election, the Respondent harassed Bruce Dew and subjected
him to more onerous working conditions because of his support for
the Union. This conduct is encompassed within our finding that the
Respondent changed Dew’s working conditions because of his sup-
port for the Union.
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
5 We find it unnecessary to amend the judge’s conclusions of law
because our remedy, Order, and notice encompass all issues.
6 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
7 NLRB v. Jamaica Towing, 632 F.2d 208, 212 (2d Cir. 1980).
Ron Junkert, a Sole Proprietor and Sheet Metal
Workers’ International Association, Local
Union No. 162, AFL–CIO
Ron Junkert, a Sole Proprietor d/b/a Airtex and
Airtex Air Conditioning and Heating, Inc. and
Sheet Metal Workers’ International Associa-
tion, Local Union No. 162, AFL–CIO. Cases
20–CA–23728, 20–CA–23814, 20–CA–24042,
and 20–RC–16665
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 22, 1992, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel filed limited exceptions, the Respondent filed
exceptions and a supporting brief, and the Charging
Party filed a brief in opposition to the Respondent’s
exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified, and to adopt the recommended
Order as modified and set forth in full below.
The General Counsel filed limited exceptions con-
cerning the judge’s failure to list in his Conclusions of
Law, Order, and proposed notice findings that he made
concerning certain violations of Section 8(a)(1) and (3)
of the Act, and his failure to recommend the appro-
priate remedy.
We agree with the General Counsel’s exceptions.
Thus, the Respondent discriminated against employee
Bruce Dew not only by laying him off in June 1991,
but also by changing his working conditions after the
November 1990 election.3 The Respondent demoted
Dew from his position as leadman, denied him the op-
portunity to work on December 31, and decreased his
hours of employment. Prior to the election, the Re-
spondent made informal payments to Dew to reim-
burse him for medical insurance expenses of his
spouse’s policy. As a consequence of Dew’s reduced
hours after the election, the Respondent ceased making
these payments. Further, the Respondent took away
Dew’s shop keys, restricted his access to the shop and
his writing of purchase orders, and denied him the use
of a jackhammer. In addition, on March 22, 1991, the
Respondent issued Dew a written disciplinary warning
for giving insufficient advance notice of absence 3
days earlier when Dew called in at starting time to re-
port becoming sick at that time. The judge found that
the evidence established a prima facie case of discrimi-
nation against Dew as to these matters, that Junkert’s
‘‘maltreatment’’ of Dew ‘‘was unlawfully motivated,’’
and that the Respondent had not met its burden of de-
fense.4 The Respondent does not except to these find-
ings, and we adopt them. We shall also address the
changes in working conditions in the Remedy, Order,
and notice below.5
Finally, we agree with the judge that the imposition
of a Gissel6 bargaining order is an appropriate remedy
in this case. Here, six employees constituted the entire
bargaining unit and the owner and president of the
shop engaged in direct, highly coercive, overt unfair
labor practices both before and after the election. In-
cluded in this misconduct were certain ‘‘hallmark’’
violations.7 President and Owner Ron Junkert not only
threatened supporters of the Union with the loss of
their jobs, but also threatened that he would close the
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Id. at 213.
9 Our decision is not inconsistent with the Ninth Circuit Court of
Appeals’ decision in NLRB v. Western Drug, 600 F.2d 1324 (9th
Cir. 1979), as argued by the Respondent in its exceptions. In that
case, the court refused to enforce a Gissel bargaining order largely
because all three employees in the bargaining unit resigned for rea-
sons unrelated to the employer’s unfair labor practices before the
hearing, and the administrative law judge did not assess whether a
fair rerun election was possible. Here, two of the original six bar-
gaining unit employees remained in the Respondent’s employ at the
time of the hearing. Moreover, the judge, here, carefully analyzed
the misconduct at issue, demonstrating that it indeed ‘‘may reason-
ably be calculated to have a coercive effect on employees and to re-
main in their memories for a long period.’’ NLRB v. Jamaica Tow-
ing, supra at 213. We also note that the Ninth Circuit has enforced
bargaining orders in circumstances where not one of the authoriza-
tion card signers remained in the work force at the time of court en-
forcement. See NLRB v. Cam Industries, 666 F.2d 411, 413 fn. 4
(9th Cir. 1982).
doors of the plant before signing an agreement with
the Union. Junkert compounded this preelection mis-
conduct by repeating the threats of job loss after the
election and discriminating against the leading union
adherent, Bruce Dew. Junkert discriminatorily changed
Dew’s working conditions, issued him a disciplinary
notice, and then laid him off from work. This conduct
by the highest level of ownership and management
‘‘justifies a finding without extensive explication that
it is likely to have a lasting inhibitive effect on a sub-
stantial percentage of the work force.’’8 This is espe-
cially so here where the bargaining unit was small and
the shop’s owner himself committed the hallmark vio-
lations.9
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1), (3), and (5), we shall recommend that it
be ordered to cease and desist and to take certain af-
firmative action necessary to effectuate the policies of
the Act.
The Respondent shall rescind the changes in the
working conditions of Bruce Dew, rescind the discipli-
nary notice issued to Bruce Dew on March 22, 1991,
notify him that this has been done, and offer Bruce
Dew immediate and full reinstatement to his former
job.
The Respondent shall make whole Dew for any loss
of earnings and other benefits he may have suffered as
a result of the unlawful changes in his working condi-
tions and unlawful layoff by paying him an amount
equal to any losses incurred by the unlawful changes,
including but not limited to expenses Dew incurred
when the Respondent discontinued reimbursing Dew
for his health insurance costs, and an amount equal to
that he would have earned from the layoff dates to the
date of his reinstatement or offer of reinstatement, less
net interim earnings, if any, with backpay and interest
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent began a campaign
of unfair labor practices designed to destroy the
Union’s majority status on September 14, it shall be
ordered to recognize and bargain on request with the
Union as the exclusive bargaining representative of the
bargaining unit employees retroactive to that date.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below and orders that the
Respondent, Ron Junkert, a Sole Proprietor d/b/a
Airtex, Rancho Cordova, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the working conditions of employees;
issuing disciplinary notices to employees; and laying
off employees because they engaged in union activi-
ties.
(b) Granting insurance or other benefits to discour-
age employee union activities or changing such bene-
fits without bargaining with the Union.
(c) Refusing to bargain collectively with the Union
by engaging in a campaign of unfair labor practices
designed to destroy the Union’s status as bargaining
representative of its employees.
(d) Threatening employees with loss of employment,
discharge, or going out of business in order to discour-
age union activities.
(e) Threatening employees that it would be futile to
select the Union as their bargaining representative.
(f) Promising employees better benefits if they did
not support the Union.
(g) Questioning employees about their union activi-
ties or the union activities of other employees.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of any rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the changes in the working conditions of
Bruce Dew.
(b) Rescind the disciplinary notice issued to Bruce
Dew on March 22, 1991.
(c) Offer Bruce Dew immediate and full reinstate-
ment to the position that he would have occupied if he
had not been unlawfully denied employment, dismiss-
ing, if necessary, anyone who may have been hired or
assigned to perform the work that he would have been
performing, or, if that position no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(d) Make whole Bruce Dew for any loss of pay or
other benefits he may have suffered as a result of the
1137AIRTEX
10 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
unlawful discrimination against him, including any ex-
penses Dew incurred when the Respondent discon-
tinued reimbursing Dew for his health insurance costs,
in the manner set forth above in the remedy section.
(e) Remove from his file any reference to the unlaw-
ful disciplinary notice and layoff and notify Dew in
writing that this has been done and that these unlawful
personnel actions will not be used against him in any
way.
(f) On request, recognize and bargain collectively
with the Union as the exclusive collective-bargaining
representative from September 14, 1990, with respect
to its employees in the unit described below, regarding
wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement. The appro-
priate unit is:
All full-time and regular part-time manufacturing,
fabrication, assembly, handling, erection, installa-
tion, repair and service employees employed by
the Respondent at its Rancho Cordova, California
facility; excluding all office clerical employees,
guards, and supervisors as defined by the Act.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to determine the amount of backpay
due under the terms of this Order.
(h) Post at its offices and shop in Ranch Cordova,
California, copies of the attached notice marked ‘‘Ap-
pendix.’’10 Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to its employ-
ees 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.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the ballot of Ken
Ewert be opened and counted, and that a revised tally
of ballots issue in Case 20–RC–16665.
IT IS FURTHER ORDERED that should the revised tally
of ballots show that a majority of votes has been cast
for the Union, then the Regional Director for Region
20 shall issue a certification of representative. If the
revised tally shows that a majority has not been cast
for the Union, the election shall be set aside.
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 or-
dered us to post and abide by this notice.
WE WILL NOT change the working conditions of em-
ployees, issue disciplinary notice to employees, or lay-
off employees because they engaged in union activi-
ties.
WE WILL NOT promise benefits nor grant benefits in
order to cause employees to become disaffected with
the Union.
WE WILL NOT change benefits without first bargain-
ing in good faith with the Union.
WE WILL NOT refuse to bargain collectively with the
Union by engaging in a campaign of unfair labor prac-
tices designed to destroy the Union’s status as bargain-
ing representative of our employees.
WE WILL NOT threaten employees with loss of em-
ployment, discharge, or going out of business or other
reprisals in order to discourage union activities.
WE WILL NOT threaten employees that it would be
futile to select the Union as their bargaining represent-
ative.
WE WILL NOT question employees about their union
activities or the union activities of other employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of any
rights guaranteed by Section 7 of the Act.
WE WILL rescind the changes in working conditions
of Bruce Dew and rescind the disciplinary notice
issued to him on March 22, 1991.
WE WILL offer Bruce Dew immediate and full rein-
statement to the position that he would have occupied
if he had not been unlawfully denied employment, dis-
missing, if necessary, anyone who may have been
hired or assigned to perform the work that Dew would
have been performing, or, if that position no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges.
WE WILL make whole Bruce Dew for any loss of
pay or other benefits he may have suffered as a result
of the discrimination against him.
WE WILL remove from our files any reference to the
disciplinary notice issued to and layoff of Bruce Dew
and notify him in writing that this has been done and
that these personnel actions will not be used against
him in any way.
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All full-time and regular part-time manufacturing, fabrication, as-
sembly, handling, erection, installation, repair, and service employees
employed by Respondent at its Rancho Cordova, California facility;
excluding all office clerical employees, guards, and supervisors as
defined by the Act.
WE WILL, on request, recognize and bargain collec-
tively with the Union as the exclusive collective-bar-
gaining representative from September 14, 1990, with
respect to our employees in the unit described below,
regarding wages, hours, and other terms and conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
The appropriate unit is:
All full-time and regular part-time manufacturing,
fabrication, assembly, handling, erection, installa-
tion, repair and service employees employed by
us at our Rancho Cordova, California facility; ex-
cluding all office clerical employees, guards, and
supervisors as defined by the Act.
RON JUNKERT, A SOLE PROPRIETOR
D/B/A AIRTEX
David J. Dolloff, Esq., for the General Counsel.
Robert L. Rediger, Esq. (Thierman, Cook, Brown & Prager),
of Sacramento, California, for the Respondent.
Mark S. Renner, Esq. (Wylie, McBride Jessinger, Sure &
Platten), of San Jose, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Sacramento, California, on September 26 and
27 and October 2, 3, and 4, 1991. On November 23, 1990,
Sheet Metal Workers’ International Association, Local Union
No. 162, AFL–CIO, (the Union) filed a charge in Case 20–
CA–23728 alleging that Ron Junkert, d/b/a Airtex (Respond-
ent) committed certain violations of Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act). On January
1, 1991, the Union filed a charge in Case 20–CA–23814
against Respondent alleging violations of Section 8(a)(3) and
(1) of the Act. On June 4, 1991, the Union filed the charge
in Case 20–CA–24042. On June 31, 1991, the Regional Di-
rector for Region 20 of the National Labor Relations Board
issued three complaints and notices of hearing against Re-
spondent, alleging that Respondent violated Section 8(a)(5)
(3), and (1) of the Act. Respondent filed timely answers to
the complaints, denying all wrongdoing. For purposes of this
case the three complaints will be treated as one consolidated
complaint.
On September 12, 1990, the Union filed a petition with
Region 20 in Case 20–RC–16665. An election was held on
November 2, 1990. The election resulted in a tally of ballots
showing three votes for the Union, two votes against and one
challenged ballot. Further, the Union filed timely objections
to the election. The issues raised by the objections and chal-
lenged ballot have been consolidated for hearing with the un-
fair labor practice cases.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent, a California corporation, has been engaged in
business as a heating and air-conditioning contractor in Ran-
cho Cordova, California. During the 12 months prior to
issuance of the complaints, Respondent purchased and re-
ceived at its Rancho Cordova facility goods, products, and
materials valued in excess of $50,000 directly from sources
located outside the State of California. Accordingly, Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The parties stipulated and, I find that at all times material,
the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In August 1990, the Union began its organizing campaign
at Respondent’s facility. On September 5, the Union con-
tacted Ron Junkert to set up a meeting. Junkert later canceled
the meeting. On September 6, Union Representatives John
Tripp and Randy Meusling went to Respondent’s offices to
request recognition. The union representatives left a message
with the receptionist, Junkert’s mother, that they had signed
union authorization cards from all the employees and that
they wanted to discuss voluntary recognition. Junkert admit-
ted receiving this message. The Union obtained a fifth au-
thorization card, shortly thereafter. On September 12, the
Union filed its representation petition with Region 20 in
Case 20–RC–16665. Respondent received the petition on
September 14. There were 5 or 6 employees in the bargain-
ing unit at that time.1
The General Counsel contends that the Union represented
a majority of the employees in the bargaining unit based on
the five union authorization cards obtained by the Union
prior to September 12. The cards state as follows:
I, the undersigned, hereby authorize the SHEET
METAL WORKERS’ INTERNATIONAL ASSOCIA-
TION, or an affiliated Local Union thereof, to represent
me for purposes of Collective Bargaining, and in my
behalf, to negotiate and conclude all agreements as to
hours of labor, wages, and other conditions of employ-
ment. This authorization shall apply for any Employer
by whom I am employed, unless revoked by me
through written notice to the Local Union.
At jobsite meetings, union agents explained that the pur-
pose of the union authorization card was to give the union
authority to represent the employees in collective bargaining
and that the Union would file a petition with the Board if
it became necessary.
Respondent contends that John Tripp, union agent, told the
employees that ‘‘the cards would be used only to get an elec-
tion.’’ First, I credit Bruce Dew that Tripp told the employ-
1139AIRTEX
2 While Junkert admits that Respondent received a copy of the pe-
tition on September 14, he claims that he personally did not see the
petition until some later date. I do not credit this implausible testi-
mony. Rather, based on the events of September 14, I draw the in-
ference that Junkert invited Dew for a drink in response to receipt
of the petition. In any event Junkert knew of the Union’s earlier
claim of authorization cards from every employee.
3 The Union challenged Ewert’s ballot at the election on the
ground that he was a statutory supervisor. The General Counsel al-
leged in the complaint that Ewert was a statutory supervisor. Re-
spondent denies that Ewert was a statutory supervisor and contends
that he is an employee eligible to vote in the election. For the rea-
sons set forth infra, I find that Ewert was not a statutory supervisor.
4 Based substantially on demeanor, I found Dew to be a more
credible witness than Junkert. Where their testimony is in conflict,
I credit Dew’s version over that offered by Junkert.
ees that the cards were to obtain authority to represent the
employees and to present to the Board in support of a peti-
tion if voluntary recognition could not be obtained. Second,
I find no clear or unambiguous testimony that Tripp said the
cards would only be used for an election. Four employees in-
dicated on cross-examination that an election was mentioned
or explained but did not clearly testify that the sole or only
purpose of the card was for an election. The employees did
not understand the significance of Respondent counsel’s use
of the word only. One employee, Steve Barbieri, testified
that the word only was utilized by Tripp. Barbieri later testi-
fied that the word only was not used. In some manner each
employee witness indicated that he knew that card was for
union representation.
Respondent also objects to the authorization card of
former employee Jim Marr because Marr did not testify.
Marr’s card was properly authenticated by the testimony of
union agent Randy Muesling. I find that by establishing that
Marr signed the unambiguous card and returned it to
Muesling, the General Counsel has established that Marr des-
ignated the Union as his collective-bargaining representative.
I find that the card may be used to establish the Union’s card
majority without requiring Marr to corroborate Muesling’s
testimony. This is not hearsay as Respondent contends be-
cause Marr’s credibility is not at issue; the truth of the matter
asserted by the cards is not at issue. What is at issue is
whether Marr designated the Union to represent him. Marr’s
signing the card, containing the language above, and return-
ing it to Muesling is probative evidence of that point.
On September 14, 1990, Respondent received a copy of
the representation petition from Region 20. That afternoon,
Junkert called employee Bruce Dew to set up a meeting for
that evening.2 Junkert told Dew that he was going to make
the employee an offer that he could not refuse. Dew was
working at an out of town job and did not return to Respond-
ent’s shop until 7:30 p.m.
Dew, Junkert, and Ken Ewert, service leadman3 went to
a restaurant/bar. Junkert told Dew that he wanted Dew to su-
pervise half of the sheet metal jobs and that Ewert had al-
ready agreed to supervise the other half. Dew said he was
not interested in being a supervisor. He said that if Junkert
hired qualified workers, that Junkert would not need super-
visors to ‘‘pick apart the jobs.’’ Junkert asked if, by qualified
workers, Dew meant union men. Junkert said that they both
worked for the same unionized employer and knew that all
the employees were not good workers. Dew said that he
would not cover for an employee just because he had signed
a union card. Junkert answered that he could not believe that
everybody signed union cards. Dew told Junkert that he had
signed a union card. Junkert stood up and said, ‘‘if you
wanted to join the [expletive] union then why don’t you quit
and go back to the [expletive] union and leave my company
alone.’’ Junkert then left the table for a few minutes.
When Junkert returned he asked whether Dew would help
out by being a supervisor. Dew again refused the offer.
Junkert said that he had been advised by his attorney that he
couldn’t make any promises, but that things could be better.
Junkert said that he had been advised that even if everybody
voted for the Union, that he still did not have to sign a con-
tract. Junkert stated ‘‘all I have to do is negotiate.’’ Junkert
added that negotiations could take about a year.
Junkert testified that he did call Dew several times that
date but denied saying anything about an offer Dew could
not refuse. According to Junkert he invited Dew for a drink
to thank him for handling a problem at the Chico jobsite.
Junkert admitted that during the conversation Dew turned
down an offer to be a foreman. He further admitted that Dew
suggested he could get better employees if he were a union
contractor. Junkert disagreed with that contention. Junkert
denied telling Dew to quit or leave the Company. Junkert
testified that he told Dew that he did not have to sign a
union contract, all he had to do was negotiate in good faith.4
A week or two after offering Dew a supervisory position,
Junkert approached Dew and told him that Ewert ‘‘had it
with this Union crap and he’s suing.’’ Later that day, Dew
went to Junkert’s office and asked who Ewert was going to
sue. Dew explained that he was the only one of the employ-
ees with any assets and that he wanted to knew whether he
was going to be sued. Junkert answered that Ewert would
sue whoever started the union campaign. Approximately 1
week later, Junkert again said that Ewert was going to sue.
Dew answered that Ewert had no claim against him but that
it would still cost Dew money to defend a lawsuit.
Junkert admitted telling Dew that Ewert was upset and
was threatening to sue someone. According to Junkert, Dew
asked whom Ewert was going to sue and Junkert answered
that he didn’t know. Junkert denies having any other con-
versation about the subject.
In late October, Junkert visited Dew at a jobsite in Sac-
ramento. Junkert said that he believed that Steve Barbieri
would be the only employee voting for the Union in the up-
coming election. Junkert said that after the election he would
know how many employees voted for the Union. He said he
would look Steve in the eyes and be able to tell which way
he voted. Junkert said if Steve voted for the Union ‘‘he
would be treated as such.’’ Dew replied that it wasn’t right
that Barbieri had to pay for voting for the Union. Dew said,
‘‘as far as you know, I’m voting for the Union.’’ Junkert got
upset and left.
Junkert testified that he recalled telling Dew that he was
confident that he would win the election. He admitted that
Dew said that as far as Junkert knew, Dew was going to vote
for the Union. However, Junkert could not recall what pre-
cipitated this statement. Junkert denied making the statements
concerning Barbieri.
Employee Shawn Bennett testified that during his job
interview in September 1990, Junkert advised him that Re-
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Junkert admitted telling Bennett that Respondent was a nonunion
company but denied saying that he wanted to stay that way. Ben-
nett’s version is credited over that offered by Junkert.
spondent was nonunion and wanted to stay that way. Bennett
told Junkert that he had worked for 10 years for a nonunion
company.5 Bennett testified that prior to the election Junkert
repeatedly questioned him as to whether Dew or other em-
ployees were attempting to persuade Bennett to join the
Union.
According to Bennett, Junkert often complained about his
high attorney fees due to the union matters. Junkert blamed
Dew for these expenses. Junkert said he would never sign a
contract and would close his doors before signing an agree-
ment.
As stated earlier, on November 2, 1990, an NLRB rep-
resentation election was conducted among the unit employ-
ees. Of the six ballots cast, three were cast for the Union and
two were cast against. The ballot of Ken Ewert, leadman was
challenged by the Union on the ground that Ewert was a stat-
utory supervisor.
Junkert was upset because of the election results. He had
expected that a majority would vote against representation.
That morning, after the election, Bennett told Junkert that he
had voted against the Union. Junkert told Bennett that he
would fight to the finish, and that regardless of the outcome,
Junkert would take care of Bennett. Shortly thereafter, Ewert
told Junkert that he was upset that he was not permitted to
vote and that he wanted to know what he could do about it.
Junkert said he would try and find out what could be done.
Junkert had previously invited all the employees to a post-
election lunch. While enroute to the luncheon, Junkert told
Bennett that he had a pretty good idea of who voted for the
Union. He indicated that he was not happy about buying
lunch for those that had voted for the Union. He told Bennett
that he would take care of Bennett and Paul Reed and that
there would be work for Bennett and Reed. Both Bennett and
Reed had already told Junkert that they had voted against the
Union. Thus, Junkert knew that Ewert’s vote had been chal-
lenged and that the other three employees had voted for the
Union.
Present at the lunch were Junkert, Ewert, Bennett, Reed,
Dew, and Steve Barbieri. The other employee, Mike
McGlothin, went home after voting in the election. During
the lunch, Junkert said that he couldn’t believe that the em-
ployees had voted for the Union. Junkert suggested that
maybe Dew could explain why anybody would vote for the
Union. Dew answered that the Union offered good wages,
benefits, and training programs. Dew suggested that Ewert
would know why employees favored a union because Ewert
had worked for a union company for 12 years. Ewert reacted
by angrily cursing Dew. Ewert was angry that his vote had
been challenged on the ground that he was a supervisor.
When Dew and Barbieri got up to leave, Bennett said,
‘‘Don’t worry about it, we’ll weed out these union guys and
we’ll have our shop back.’’ Junkert said nothing to disavow
or repudiate Bennett’s statement. The General Counsel con-
tends that, by remaining silent, Junkert accepted and ratified
Bennett’s threat to the employees.
Bennett testified that after Barbieri and Dew left, Junkert
repeated his statement and also stated that the three union
voters were not team players.
About a week after the election, Junkert assigned Bennett
to take over as leadman on a job that Dew was in charge
of at the Alhambra Medical Center. Junkert told Bennett that
‘‘Bruce wasn’t working with us and that we wouldn’t be
working with Bruce.’’ Junkert told Bennett that Bennett was
to take over the job and tell Dew what to do. Bennett pro-
tested that Dew had more experience with the job and that
the job was substantially completed. Nonetheless, Junkert in-
sisted that Bennett take over the job.
Bennett further testified that following the election, Junkert
told him that Junkert would never join the Union and that
he would fight them to the finish. Junkert again asked about
Dew’s union activity and Junkert again told Bennett that he
knew he had not voted for the Union and that Bennett would
be taken care of.
General Counsel contends that after the election Dew’s job
duties were restricted. Dew testified that after the election
Junkert took away his key to the shop. Dew testified that he
was no longer allowed to go to the shop. Previously, Dew
visited the shop to get specifications and to pick up mate-
rials. Prior to the election, Dew was permitted to write pur-
chase orders for materials needed at his jobsites. After the
election, Dew was first prohibited from writing purchase or-
ders and then later permitted to write them but only upon
prior approval. Dew testified that as a result of these changes
he was unable to work as many hours as before.
Junkert denied changing his policy regarding the use of
purchase orders. Junkert admitted taking Dew’s shop key but
claimed that was simply a security measure. However,
Junkert denied any change in Dew’s work location or trying
to isolate Dew. He admitted that the leadman on a job would
be more likely to write purchase orders than other employ-
ees. The record shows Dew worked less hours. The evidence
reveals that Dew was replaced by Donald Driver as the main
sheet metal leadman. Junkert did not explain why Dew was
used so few times as a leadman. Junkert ceased paying
Dew’s monthly health benefit because Dew did not work
enough hours.
Dew testified that he did not work on December 31, 1990,
because Junkert told him that the employees had agreed to
take a 4-day weekend. Tuesday, January 1, was a holiday.
Junkert told Dew that the shop would be closed that day. In
fact, Junkert and four employees worked that day. Junkert
testified that he gave Dew, and all the other employees, the
option of working or taking the day off. According to
Junkert, Dew and most of the employees took the day off.
In fact, Junkert and four employees worked. Only Dew and
one other employee took the day off.
General Counsel offered other evidence revealing animus
and harassment against Dew. On one occasion Junkert denied
Dew the use of a jack which helped with heavy conduit. On
another occasion, Dew was given a warning for not giving
24-hour notice for an illness. Dew did not realize that he
would need to take off work until that morning.
Barbieri testified that he broke his leg on Thanksgiving
Day and did not return to work until February 1991. On
Barbieri’s return to work he was given a written warning for
poor job performance for the previous November. Barbieri
had been reprimanded and warned about his work habits
prior to his leave. Barbieri had received written reprimands
on September 7 and October 5. The warning of February
1991 reminded Barbieri of these past infractions. On
1141AIRTEX
Barbieri’s return to work, he was assigned to work with Dew
on a job known as the Christ Unity jobsite.
Dew testified that as leadman on the Christ Unity jobsite,
he learned from Barbieri that employee Dennis Eaton had re-
moved screws from duct work that Dew had installed. Dew
called Junkert and complained that Eaton was sabotaging his
work. That evening Junkert called Dew at home and asked
Dew to write a letter stating that Barbieri had worked that
portion of the duct work where the screws had been re-
moved. Dew said that Eaton had admitted removing the
screws. Junkert then asked that Dew write that Barbieri and
Eaton were responsible for the missing screws. Dew again
refused and said he would write a letter stating that Eaton
had removed the screws. Junkert told Dew to just forget the
matter.
Barbieri was discharged on March 8, 1991. Junkert testi-
fied that Barbieri was discharged because of ongoing prob-
lems. The problems were reporting to work late, leaving
work early and standing around on the job. Further, Junkert
testified that Dew and Eaton complained about Barbieri’s
work habits. Barbieri was told he was being discharged for
substandard work. This evidence was not rebutted by
Barbieri or Dew.
Dew testified that he was laid off on or about June 19,
1991. Junkert claimed that Dew and other employees were
missing work because of a lack of work. However, Junkert
insisted that Dew was never laid off. Dew filed for unem-
ployment benefits but Junkert did not contest Dew’s applica-
tion for benefits. Driver, a leadman, continued to work with
Eaton, an apprentice. Both Driver and Eaton were hired after
the election.
General Counsel contends that Respondent unilaterally
changed heath benefits after the bargaining obligation arose.
Prior to June 1991, Respondent had no health plan for its
employees. Respondent negotiated individual arrangements
with employees to reimburse them for their health insurance
premiums or to pay premiums directly to their health care
providers. In June 1991, Respondent implemented a health
insurance plan. Employees had to work at least 80 hours per
month to be eligible for such benefits. Dew was not paid his
health benefit because he had not worked the 80 hours.
Dew testified that he was not invited to the employee
meeting to explain the new heath plan. Further, Dew refused
to sign an application for the plan because he had not re-
ceived an explanation of the costs and benefits.
B. The Supervisory Status of Ken Ewert
Ken Ewert testified that he worked with Junkert at Airco
Mechanical. Both were supervisors at Airco, a unionized em-
ployer. Ewert took over Junkert’s position when Junkert left
Airco to start up his own company. Ewert was Junkert’s first
employee. Ewert told Junkert that he wanted to work with
the tools and did not want the hassles of being a supervisor
or foreman. Junkert and Ewert agreed that Ewert would be
a leadman after other employees were hired but would not
have to exercise supervisory authority over the new employ-
ees. Ewert is Respondent’s most experienced and highest
paid employee. Ewert performs service work and installation.
When Dew was hired he was to perform sheet metal and
duct installation. Dew also was expected to act as a leadman
on his jobsites just as Ewert did on service jobs. Dew was
paid slightly less than Ewert.
Ewert worked on some jobs at which he was not the
leadman. His job duties appear to be the same as Dew, Ben-
nett, Driver and other journeymen-leadmen. If I were to find
that Ewert was a supervisor, I would have to find four super-
visors and two unit employees. That ratio of supervisors
seems implausible. There is no evidence that Ewert hired or
fired any employee or that he effectively recommended such
action. On one occasion, Ewert reported to Junkert that an
employee ‘‘was a pleasure to work with’’ and Junkert imme-
diately granted the employee a raise. Junkert testified that he
was concerned that the employee’s starting rate was too
much lower than other journeymen and raised the starting
rate when Junkert confirmed that the employee was experi-
enced. As leadman, Ewert and Dew were expected to be in
charge of their jobs. When Dew needed help on his jobs, he
was instructed by Junkert to obtain a helper from Ewert.
Junkert would notify Ewert that when a helper was free, help
should be sent to Dew. I find that the General Counsel has
not established that Ewart was a supervisor within the mean-
ing of the Act. Accordingly, I find that Ewert was eligible
to vote in the representation election.
The union objections parallel the unfair labor practices al-
legations. In addition, the Union contends that Respondent
gave an unlawful captive-audience speech. The evidence re-
veals that the speech was outside the 24-hour rule. Accord-
ingly, the speech is not grounds for setting aside the election.
See AWB Metal, 306 NLRB 109 (1992); Midland National
Insurance Co., 263 NLRB 127 (1982).
C. Analysis and Conclusions
1. The 8(a)(1) statements
Based on the credited testimony, I find that Junkert called
Dew to a meeting on September 14 in response to the filing
of the petition. Junkert offered Dew a foreman or supervisory
position. Dew said that if Junkert hired qualified employees,
he wouldn’t need supervisors to pick the jobs apart. Junkert
then mentioned the subject of the Union. Junkert said that he
could not believe everybody signed union cards. Dew admit-
ted that he had signed a card. Junkert then threatened Dew
by saying, ‘‘if you want to join the [expletive] Union then
why don’t you quit and go back to the [expletive] Union and
leave my company alone.’’ This constitutes a threat of loss
of employment for union activities. Goodman Investment
Co., 292 NLRB 340 (1989); Bill Scott Oldsmobile, 282
NLRB 1073 (1987). Junkert said he couldn’t make promises
now but things could be better. Finally Junkert said he did
not have to sign anything but simply had to negotiate with
the Union. Such a remark threatens that it would be futile
for the employees to vote for representation. See Fry Foods,
241 NLRB 76 (1979), enfd. 609 F.2d 267 (6th Cir. 1979).
Junkert’s threat that Ewert would sue was a threat to Dew.
Carborundum Materials Corp., 286 NLRB 1321 (1987).
Junkert’s threat to Dew that Barbieri would be treated dif-
ferently if he voted for the Union was also a violation. All
of the above acts imply that Respondent would punish em-
ployees’ union activities in violation of the Section 8(a)(1).
See Professional Eye Care, 289 NLRB 1376 (1988); Hacks
Inc., 277 NLRB 916 (1985); Southern Illinois Petrol, 277
NLRB 160 (1985); Thriftway Supermarket, 276 NLRB 1450
(1985).
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See M & J Trucking Co., 214 NLRB 592, 604 (1974); Stearns-
Roger, 222 NLRB 1096, 1097 (1976).
The credited testimony shows that Junkert when hiring
Bennett told the employee that Respondent was nonunion
and preferred to stay that way. See Bay Area Mack, 293
NLRB 125, 132–133 (1989); Gilberton Coal Co., 291 NLRB
344 (1988). Junkert told Bennett that he simply had to nego-
tiate with the Union but he did not have to sign a contract.
The otherwise lawful statement appears to be a threat when
coupled with Junkert’s statement that he would never sign
with the Union and that he would close his doors rather than
sign a contract. See Fry Foods, supra. Junkert questioned
Bennett about the union activities of other employees. See
Hanover Concrete Co., 141 NLRB 936 (1979). See also
Southern Illinois Petrol, 277 NLRB 169 (1985). Junkert
promised to take care of Bennett and threatened action
against Dew based on their union sympathies. Junkert’s
promise to Bennett of job benefits for not supporting the
Union is violative. The remark indicates that employees who
oppose the Union will get benefits and those supporting the
Union will be punished. Azalea Gardens Nursing Center,
292 NLRB 683 (1989). Informing Bennett that he was to
take over a job from Dew because ‘‘Bruce isn’t working
with us anymore,’’ is a violation. The statement threatens
that Respondent will retaliate against union sympathizers.
See Felbro, Inc., 274 NLRB 1268 (1985).
Junkert adopted the statement of employee Bennett that
the union supporters would be ‘‘weeded out.’’ Under the cir-
cumstances Junkert was obliged to repudiate the statement.
Rather, Junkert repeated the remark so that the threat had
more impact. Gold Bold Building Products, 293 NLRB 1138
(1989); Structural Finishing, 284 NLRB 981 (1987).
2. The 8(a)(3) allegations
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Upon such a showing,
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. The U.S. Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393, 399–403 (1983).
On September 14, the Union filed the petition with the
Board. Junkert had earlier knowledge of the organizing be-
cause the Union had requested voluntary recognition. Upon
receipt of the petition, Junkert arranged a meeting with Dew.
Junkert offered Dew a position as a supervisor but Dew de-
clined the position. They spoke about the Union and Dew re-
vealed that he had signed a union card. Junkert told Dew that
he should quit and go back to the Union. Later Junkert said
that his lawyer told him that he couldn’t make promises but
that things could be better. Finally, Junkert implied that he
would talk to the Union but not sign anything.
One week later, Respondent Junkert told Dew that Ewert
was going to sue somebody about the ‘‘Union crap’’ and im-
plied that Junkert was going to sue Dew. A week before the
election Junkert told Dew that only Barbieri was going to
vote for the Union and implied that there would be retalia-
tion against Barbieri. Dew stated that such retaliation wasn’t
fair.
The day of the election Junkert learned that Dew, Barbieri,
and McGlothin had voted for union representation. Junkert
was angry and asked Dew why anyone would want union
representation. Dew mentioned wages, benefits, and training.
As Dew was leaving Bennett threatened that the union em-
ployees would be weeded out. Junkert ratified that conduct.
After the November 2 election, Junkert appointed Bennett
to take over as leadman on one of Dew’s jobsites. Bennett
pointed out that Dew was more experienced on that jobsite.
Nevertheless, Junkert delegated Bennett to take over the job
as leadman. Junkert admitted to Bennett that he was doing
this because Bruce Dew was not ‘‘working with us.’’ I draw
the inference that Dew was being demoted because of the
election results.
At the same time Junkert took the keys to the shop from
Dew, making it more difficult for Dew to perform his work.
Dew was given few assignments as leadman. Prior to the
election, Dew worked almost exclusively as a leadman. As
a result of this change, Dew experienced a loss of work
hours. Junkert’s admission that Dew was a fine employee
and did craftsman type work, raises an inference that this
maltreatment was unlawfully motivated.
Dew was laid off in June 1991. Junkert testified that em-
ployees were losing work. He admitted that he told employ-
ees to file for unemployment benefits. However, Junkert in-
sisted that Dew was not laid off and that Dew took it upon
himself to file for unemployment. Junkert did not contest
Dew’s application for unemployment. However, Junkert
claims that Dew filed because of lack of work and not be-
cause he was laid off. At least two employees, junior to
Dew, kept working during the period of Dew’s layoff.
In the context of the union animosity, I find that General
Counsel established a prima facie case of discrimination
against Dew. The burden shifts to Respondent to establish
that the same action would have taken place in the absence
of Dew’s union activities. Respondent has shown some loss
of work before Dew’s layoff. However, the fact that a layoff
may be economically justified is no defense if the selection
of the employees laid off was because of union activities.
Seifert Mfg. Co., 244 NLRB 676 (1979); Jimmy Dean Meat
Co., 227 NLRB 1012 (1977). An employer cannot seize
upon the opportunity occasioned by a reduction in force to
weed out an employee because of his union activities. Pacific
Southwest Airlines, 201 NLRB 647, 655 (1973); Heath Inter-
national, 196 NLRB 318 (1972).
Respondent has not shown why Dew, a craftsman and sen-
ior employee, was not kept working.6 Nor has Respondent
shown why Dew was not acting as a leadman after the elec-
tion. Under Wright Line, Respondent must produce evidence
to persuade that such action would have taken place even ab-
sent the protected conduct. Respondent has been unable to do
so.
There is also sufficient conduct to create a prima facie
case regarding Barbieri’s discharge. Respondent had animus
against Barbieri for voting for the Union. Barbieri was dis-
charged 1 month after returning to work. Junkert attempted
to blame Barbieri for the misconduct of employee Eaton.
1143AIRTEX
When Dew would not aid in this plan, Junkert dropped the
matter and did not discipline Eaton, the actual wrongdoer.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Barbieri’s
protected activities. Respondent has established that Barbieri
was not a good employee. However, an employer cannot
carry its Wright Line burden simply by showing it had a le-
gitimate reason for the discharge, but must persuade that the
action would have taken place even absent the protected con-
duct by a preponderance of the evidence. Centre Property
Management, 277 NLRB 1376 (1985); Roure Bertrand Du-
pont, Inc., 271 NLRB 443 (1984). It is well settled that if
an employer discharges an employee involved in ‘‘unwel-
come concerted activities’’ for behavior that would warrant
a discharge in the absence of union or concerted activities
then ‘‘the circumstance that the employer welcomed the op-
portunity to discharge does not make it discriminatory and
therefore unlawful.’’ Kate Holt Co., 161 NLRB 1606, 1612
(1966).
I find the prima facie case is overcome by the evidence
that Barbieri was late for work, left work early and stood
around on work time. Respondent issued warnings to
Barbieri in September and October concerning these matters.
The October warning carried with it a 2-day suspension.
When Barbieri returned to work after a disability leave the
problems continued. Junkert’s testimony that these problems
continued was not rebutted. Dew’s testimony confirmed that
Barbieri was not a good worker. On September 14, Dew sent
Barbieri home because the employee was not working. Fur-
ther, the record contains some evidence that Junkert dis-
ciplined Bennett an antiunion employee when Bennett had
attendance problems. Barbieri was late for work on the day
before his discharge. Further, Barbieri was told by Junkert
that he was discharged for substandard work.
I am persuaded that Respondent would have discharged
Barbieri absent the employee’s union activities because of
these poor work habits. The union activities and union ani-
mus have established a strong prima facie case. However,
Barbieri’s work habits would have caused his discharge in
any event. Junkert was not going to permit these infractions
to continue. I cannot find that Junkert overlooked or con-
doned these infractions. Accordingly, I find that the General
Counsel has not sustained his burden of proof that the dis-
charge was motivated by antiunion considerations. Accord-
ingly, I recommend dismissal of this allegation of the com-
plaint. See Tapco Products Co., 253 NLRB 998, 1001
(1981).
3. The representation proceeding
The challenge to the ballot of Ken Ewert was overruled
and his ballot must be counted. Having concluded that Re-
spondent, between the date of the petition and the date of the
election, engaged in numerous unfair labor practices, I find
that Respondent’s conduct affected the results of the election.
This conduct is sufficient to set aside the election. American
Safety Equipment, 234 NLRB 501 (1978); Dayton Tire &
Rubber, 234 NLRB 504 (1978). Therefore, I recommend that
if after opening the ballot of Ewert, a revised tally of ballots
shows that a majority of votes has not been cast for the
Union, the election should be set aside. However, if the re-
vised tally of ballots shows that a majority of votes has been
cast for the Union, then a certification of representative shall
issue.
It is well settled that, in deciding whether to grant benefits
while a representation election is pending, an employer
should act as if no union were in the picture. Centre Engi-
neering, 253 NLRB 419, 421 (1980); Red Express, 268
NLRB 1154, 1155 (1984); R. Dakin & Co., 284 NLRB 98
(1987). The Board does not automatically find that grants of
benefits during an organizational campaign to be unlawful,
but it presumes that such action will be objectionable ‘‘un-
less the Employer establishes that the timing of the action
was governed by factors other than the pendency of the elec-
tion.’’ American Sunroof Corp., 248 NLRB 748 (1980);
Honolulu Sporting Goods, 239 NLRB 1277 (1979).
The Board’s general rule is that an employer’s legal duty
during a preelection campaign period is to proceed with the
granting of benefits, just as it would have done had the union
not been on the scene. See, e.g., American Telecommuni-
cations Corp., 249 NLRB 1135 (1980). When an employer
confers benefits during the course of a union organizing cam-
paign, its actions are presumptively a violation of the Act.
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). In the
absence of evidence demonstrating that the timing of the
changes was governed by factors other than the pendency of
the election, the Board will infer interference with employee
freedom of choice as the motivating factor. The burden of
establishing a justifiable motive remains with the employer.
Applying these principles to the instant case, I have found
that the election proceeding was still pending when Respond-
ent changed its health insurance practices. Respondent has
not demonstrated that the granting of the benefit at issue was
governed by reasons other than the pendency of the election
petition. I therefore find a violation of Section 8(a)(1) of the
Act.
4. The bargaining order
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
leading case on remedial bargaining orders, the United States
Supreme Court held:
(1) Even in the absence of a demand for recognition,
a bargaining order may issue if this is the only avail-
able effective remedy for unfair labor practices.
(2) Bargaining orders are clearly warranted in excep-
tional cases marked by outrageous and pervasive unfair
labor practices.
(3) Bargaining orders may be entered to remedy less-
er unfair labor practices that nonetheless tend to under-
mine majority strength and impede the election process.
If a union has achieved majority status and the possibil-
ity of erasing the effects of the unlawful conduct and
of ensuring a fair election through traditional remedies
is ‘‘slight,’’ a bargaining order may issue.
(4) Minor or less-extensive unfair labor practices that
have only a minimal effect on election machinery will
not support a bargaining order.
A union that chooses to petition for an NLRB election in-
stead of seeking recognition may obtain a bargaining order
under Gissel if it loses the election, but only if postelection
objections establish that misconduct sufficient to invalidate
the election occurred in the period between the filing of the
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
petition and the holding of the election. Bernel Foam Prod-
ucts Co., 146 NLRB 1277 (1964); Irving Air Chute Co., 149
NLRB 627 (1964), enfd. 350 F.2d 176 (2d Cir. 1965). As
seen above, I have found threats and promises, during the
critical period, sufficient to set aside the election.
As a precondition to a bargaining order, the Board cur-
rently requires a showing that the union achieved majority
status in an appropriate bargaining unit at some relevant
time. Gourmet Foods, 270 NLRB 578 (1984). I find that the
Union had obtained valid authorization cards from five em-
ployees in a bargaining unit of six employees.
Here Respondent’s reaction to the Union’s petition and de-
mand for recognition was to unlawfully question employees,
make promises and threats, and unlawfully lay off an em-
ployee.
Where an employer’s reaction to employee organizational
activities is to engage in swift, pervasive, and severe illegal
acts, and the misconduct is enough to convince that it is the
type that has lingering effects and that is not readily dis-
pelled by traditional remedies or time, the Board has held
that an election would not reliably reflect genuine, uncoerced
employee sentiment. See, e.g., Kona 60 Minute Photo, 277
NLRB 867 (1985); Quality Aluminum Products, 278 NLRB
338 (1986); Reno Hilton, 282 NLRB 819 (1987).
In White Plains Lincoln Mercury, 288 NLRB, 1133, 1139–
1140 (1988), the Board discussed the application of the
Gissel test, as follows:
Because of the nature, extent, and severity of the Re-
spondent’s unlawful conduct in response to its employ-
ees’ organizational activities . . . we shall require that
the Respondent recognize and bargain with the Union.
Respondent’s unlawful discharge of five employees
. . . in immediate retaliation against their card signing,
is among the ‘less remediable’ of unfair labor practices.
Loss of employment, frequently referred to as the ‘cap-
ital punishment’ of the workplace, has long been recog-
nized as the type of action which will have a long-last-
ing coercive impact on the work force and demonstrate
most sharply the power of the employer over the em-
ployees.
Given the small size of the Respondent’s operation
and the swift and massive layoffs of employees who
had signed cards supporting the Union, the Respond-
ent’s actions have a pervasive and lasting impact.
Here, Respondent prior to the election made threats and
promises. Unfortunately, in this small unit the secrecy of the
ballot was lost. Junkert, after the election, followed his prior
words with unlawful retaliation against the perceived leading
union adherent. He reemphasized his antiunion stance in dis-
cussions with employees in which various threats, including
threats to close the business, were repeated on several occa-
sions. Threats to eliminate the employees’ source of liveli-
hood have a devastating and lingering effect on employees,
an effect that most effectively can be remedied by an order
to bargain. See, e.g., Milgo Industrial, 203 NLRB 1196,
1200–1201 (1973), affd. mem. 497 F.2d 919 (2d Cir. 1974);
Midland-Ross Corp. v. NLRB, 617 F.2d 977, 987 (3d Cir.
1980); Chromalloy Mining & Minerals v. NLRB, 620 F.2d
1120, 1130 (5th Cir. 1980).
The issue is whether a fair election can be run in this
small unit. Respondent shortly after the election engaged in
hallmark violations such as threats and promises, and an un-
lawful layoff. I find, in light of the violations’ seriousness
and pervasiveness, the unit’s size, the substantial percentage
of unit employees the Respondent’s threats, promises and
discrimination directly affected, and the strong possibility of
repetition of similar unfair labor practices, that the unfair
labor practices involved in this case would tend to undermine
the Union’s majority status and impede the election process.
It appears that the possibility of erasing the effects of past
practices and of ensuring a fair election by the use of tradi-
tional remedies, is slight and that the employee preference
expressed through the authorization cards would, on balance,
be better protected by a bargaining order.
Respondent argues that because of employee turnover, no
bargaining order should issue. For the reasons stated above,
I reject that argument. Further, the Board has been reluctant
to consider employee turnover in Gissel situations. See Gib-
son Products Co., 185 NLRB 362 (1970). To do so, would
in effect be rewarding the employer and allowing him to
profit from his own wrongdoing. Although some courts have
not gone along with the Board in this view, the United States
Court of Appeals for the Ninth Circuit, where this case
arises, has done so. See NLRB v. CAM Industries, 666 F.2d
411, 413 fn. 4 (9th Cir. 1982). I am convinced that the last-
ing effects of the Respondent’s offensive conduct cannot eas-
ily be eradicated and that a fair election at this facility is im-
probable. See M.P.C. Plating, 295 NLRB 583 (1989); Mas-
sachusetts Coastal Seafoods, 293 NLRB 496, 500 fn. 10
(1989).
REMEDY
Having found that the Respondent has violated Section
8(a)(l), (3), and (5), I shall recommend that it be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent shall offer Bruce Dew immediate and full re-
instatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed.
Respondent shall make whole Dew for any loss of earn-
ings and other benefits he may have suffered as a result of
the unlawful layoff, by paying him an amount equal to that
he would have earned from the layoff dates to the dates of
his reinstatement or offer of reinstatement, less net interim
earnings, if any, with backpay and interest as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). See generally Isis Plumbing Co., 130 NLRB
716 (1962).
Having found that the Respondent began a campaign of
unfair labor practices designed to destroy the Union’s major-
ity status on September 14, it shall be ordered to recognize
and bargain on request with the Union as the exclusive bar-
gaining representative of the bargaining unit employees retro-
active to that date. See Reno Hiltonn, supra. Because the bar-
gaining obligation is retroactive to September 14, 1990, the
change in health benefits also violated Section 8(a)(5). See
Toyota of Berkeley, 306 NLRB 893 (1992).
1145AIRTEX
CONCLUSIONS OF LAW
1. Respondent Airtex Air Conditioning and Heating, Inc.
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sheet Metal Workers’ International Association, Local
Union No. 162, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By making promises of better working conditions; by
threatening employees with plant closure and other adverse
actions for engaging in union activities; by threatening em-
ployees with discharge Respondent has interfered with, re-
strained, and coerced employees in violation of Section
8(a)(1) of the Act.
4. By laying off employees in order to discourage union
activities Respondent has violated Section 8(a)(3) and (1) of
the Act.
5. By failing and refusing to recognize and bargain with
the Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
[Recommended Order omitted from publication.]