Ben Franklin Division of City Products Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1512 (N.L.R.B. 1980)

1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Franklin Division of City Products Corpora-
tion' and Chauffeurs, Teamsters, Warehouse-
men and Helpers Local Union No. 135, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 25-CA-10827, 25-CA-11146, and 25-
RC-7181 2
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On April 29, 1980, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, as well as an an-
swering brief to the exceptions of the General
Counsel. The General Counsel filed limited excep-
tions and a brief in support thereof, as well as a
brief "in support of most of the Administrative
Law Judge's decision."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 3 recommendations, 4 and conclusions of the
' Respondent's motion to amend the capion to reflect its correct cor-
porate name as shown above is hereby granted.
2 Respondent's motion of August 18, 1980, requests the Board to take
administrative notice of the Petitioner's withdrawal of the petition in
Case 25-RC-7181 and of the Acting Regional Director's having ap-
proved that request and closed the case on August 15. It requests the
Board to dismiss formally the objections in the said RC case from "the
consolidated pending action now before it" and in particular to dismiss
all allegations relating to Objection 12, as to which it asserts no parallel
independent 8(a)(1I) allegations of misconduct were made. This request ig-
nores the fact that the objections have been fully litigated and 8(a)(1) vio-
lations based thereon found by the Administrative Law Judge and adopt-
ed by the Board. In the circumstances we shall amend the Administrative
Law Judge's recommended Order to omit the direction of a second elec-
tion.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 In adopting the Administrative Law Judge's dismissal of the 8(a)3)
allegation concerning Murray's discharge, we conclude that the General
Counsel did not establish by a preponderance of the evidence that the
discharge was motivated by Murray's union activities. In view of his
agreement with this conclusion, Member Truesdale finds it unnecessary
to pass on the Administrative Law Judge's reliance on Rosso and Mas-
tracco,. Inc., d/b/a Giant Open Air Market, 231 NLRB 945 (1977).
Member Jenkins agrees with the Administrative Law Judge that Re-
spondent unlawfully solicited employee grievances and promised to
remedy them but does so on the basis set forth in his dissenting opinion in
Uarco Incorporated, 216 NLRB 1 (1974)
251 NLRB No. 200
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Ben Franklin
Division of City Products Corporation, Seymour,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, excluding only the last paragraph
thereof which recommends a rerun election.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MII..ER, Administrative Law Judge: This
matter was heard on September 27 and 28 and Novem-
ber 6 and 7, 1979,' in Seymour, Indiana, based on unfair
labor practice charges filed on April 13 and July 20 by
Chauffeurs, Teamsters, Warehousemen and Helpers
Local Union No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and complaints issued
by the Regional Director for Region 25 of the National
Labor Relations Board, herein called the Board, on May
11 and August 23. The complaints, which were consoli-
dated for hearing, allege that Ben Franklin Company,
Inc., a subsidiary of City Products Corporation, herein
called Respondent, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act, by threats, interrogation, surveillance and the
creation of the impression of surveillance, solicitation of
grievances and promises of benefit, and the discharge of
an employee, all to discourage employees from assisting,
supporting, or joining the Union. Consolidated for hear-
ing with the unfair labor practice allegations were cer-
tain union-filed objections to conduct affecting the re-
sults of an election conducted in Case 25-RC-7181,
which essentially track certain complaint allegations. Re-
spondent's timely filed answers deny the substantive alle-
gations of the complaints.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally. The General Counsel and Respondent filed briefs
which have been carefully considered. Based upon the
entire record, including my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS; PRELIMINARY CONCLUSIONS
Respondent is an Ohio corporation with its principal
office and place of business in Chicago, Illinois. At all
times material herein it maintained a facility at Seymour,
i All dates hereinafter are 1979.
BEN FRANKLIN DIVISION 1513
Indiana, where it was engaged in the operation of a gen-
eral merchandise warehouse and distribution center. Ju-
risdiction is not in issue. The complaints allege, Respond-
ent admits, and I find and conclude that Respondent sat-
isfies the Board's standards for the assertion of jurisdic-
tion and that Respondent is an employer, engaged in
commerce, within the meaning of Section 2(6) and (7) of
Act.
The complaints allege, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a division of City Products Corporation
and, like certain other divisions, operates warehouses at
different locations around the country. From those ware-
houses, it distributes merchandise to franchised retail
stores which operate under the Ben Franklin name. Re-
spondent constructed the Seymour facility, the only one
involved herein, during 1978. It is one of their largest
warehouses, modern and highly automated. Interviews
for the initial employee complement were conducted late
in 1978 and the initial group of employees was hired on
January 4.
B. Union Activity
Some union activity began almost immediately, the
result of urgings by Respondent's unionized employees at
other warehouse operations, reaching Seymour via mes-
sages attached to cartons of incoming merchandise and
from truckdrivers coming to the receiving docks. One of
the employees involved in this activity was Mark
Murray, who talked with various employees to deter-
mine whether they would be interested in organizing.
On Saturday, March 30, employee Marsha Merrick, a
service inspector, told Warehouse Manager Laroff that
Murray was campaigning for the Union and that he had
made sarcastic remarks to her to the effect that things
would be different if the Union were in. Laroff told Mer-
rick that Respondent was "having some problems with
Mark as far as his attendance at work; that he missed a
lot of work. That . . . they had talked with him about
it," and Merrick informed Laroff that she had told
Murray, "that [she] thought he was lucky to have the
job that he had, because he did miss work quite regular-
ly." 2
Laroff also told Merrick that Murray was within his
rights in supporting unionization.3
Another employee Murray spoke with was R. V.
Oakes, whom he knew to be a union member. Through
Oakes, a meeting of employees and union representatives
was arranged and held, at a local restaurant, Jerry's, on
April 5. At that time, Murray signed a union authoriza-
tion card and picked up a number of additional cards for
2 The record is not clear as to who introduced the subject of Murray's
absenteeism into the conversation.
3 Merrick was a persuasive witness and her testimony is uncontradict-
ed
distribution to his fellow employees. Thereafter, Murray
got 5 cards signed and distributed about 10 others.
On April 18, the Union filed a petition for representa-
tion election. A Stipulation for Certification Upon Con-
sent Election was entered into, and an election among
Respondent's "regular full-time and regular part-time
warehouse employees and warehouse clerical employ-
ees" at its Seymour, Indiana, facility was conducted on
July 13. Of approximately 116 eligible voters, 83 cast bal-
lots against and 25 cast ballots for the Union. On July 20,
the Union filed timely objections to the election.
C. Events Between the Initial Union Meeting and
Murray's Discharge
Murray testified that it appeared to him as if his super-
visors more closely observed his work subsequent to the
April 5 meeting than they had before; he thought they
were keeping an eye on him. On one occasion, while he
was discussing a work-related matter with a forklift
driver, Supervisor Walter Zorich came up to him and
asked whether he was "talking business or . . . talking
crap." Zorich had never previously questioned him in
that manner. Murray also maintained a file folder in
which he kept inventory cards and other papers. On oc-
casion after April 5, both Zorich and Laroff were ob-
served to leaf through this folder. Management denies
any effort to spy on Murray's union activities. Zorich
testified that he did watch the work Murray was doing
and did go through the file folder Murray maintained.
He denied that he observed Murray any more closely
than other employees and stated that it was part of his
function to see that the stocking was done properly.
Laroff did not testify.
About April 9, Laroff asked employee Dan Elliott
whether he was having any financial troubles. Elliott
asked what Laroff meant. Laroff replied, "I hear tell that
a few people want a union in here . . ." and asked El-
liott to name them. Elliott refused. Laroff stated,
"[T]here's a couple of people passing out application
cards for the Teamsters Union"; he expressed surprise at
one, but not the other. The former he identified as a
second-shift employee. The latter, about whom he
"wasn't too surprised," was Mark Murray.
In the course of their conversation, Laroff told Elliott
that Murray had been absent approximately 10 days, was
absent on that very day, had left work early a couple of
times, and had a poor attendance record. He could have
let Murray go earlier because of his attendance, he said,
but did not because he knew that Murray had a personal
problem. Elliott was aware of Murray's absenteeism.
Laroff said that he could not understand why employees
were trying to bring in a union since the Company had
just opened up and he thought that they should give the
Company a chance to prove itself.
In this same conversation, Laroff told Elliott that he
had a friend, affiliated with the Union, who told him of
the meetings being held at Jerry's Restaurant. Finally, he
asked Elliott why the employees were seeking union rep-
resentation. Elliott responded that the employees at Re-
BEN FRANKLIN D VISION 13
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's other warehouses were unionized, were
making more money, and were receiving better benefits. 4
During the morning of Tuesday, April 10, according
to Murray's testimony, Regional Distribution Manager
VanBuskirk took him aside and stated, "I hear that you
have a few gripes and complaints about Ben Franklin."
Murray denied this and VanBuskirk told him, "Well, let
me tell you . . . you have a high absenteeism rate and
we do not allow that at Ben Franklin . . . what are you
griping and complaints [sic] about City Corp?" When
Murray did not reply he was told to go back to work.
This, Murray testified, was the first time he had been
spoken to about absenteeism.
Later that day, as Murray relates the events, he was
taken into an office by Zorich and was told that Zorich
had gone through Murray's personnel file. Zorich said
that he would let Murray know by the following day
whether Murray would still be employed by Respondent.
Zorich asked Murray whether he could regain his
former employment.
On April 11, near the end of the workday, Murray
was told that he was being terminated because of his
high absenteeism rate. He accused Zorich of discharging
him because of his union activity and suggested that he
would contact the Labor Board. Zorich did not respond
other than to shrug his shoulders.
Murray testified that nothing was said to him during
his employment orientation concerning absenteeism. He
claimed to have been told that the Company had a
system of progressive discipline, calling for verbal warn-
ings, written warnings, and suspension prior to discharge.
He denied that he had received any prior warnings for
absenteeism and that he was ever suspended. Murray did
admit to having read, prior to commencing his employ-
ment, that portion of the employee handbook which
stated:
Good attendance and being on time regularly are
important to your overall performance record, so
protect it. Irregular attendance or chronic tardiness
can be cause for discipline or discharge.
Murray admitted to some absenteeism, perhaps 7 days
since he started. Some of this, he said, was necessitated
by his wife's pregnancy and their choice of a military
hospital approximately 110 miles distant. Laroff knew of
this situation and had told him that there would be no
problem. Murray missed some work, he admitted, after
the child was born on February 4. Some of these ab-
sences involved the failure to show up for Saturday
overtime after having agreed to work. He contended that
overtime was not mandatory and said, "If I had things to
do, I had things to do."
Respondent's evidence concerning Murray's discharge
is at substantial variance with the foregoing. A number
of employees who were hired and underwent orientation
at the same time as Murray testified that the importance
of regular attendance was strongly emphasized during
their orientations. They were told that unjust or exces-
' As a witness, Elliott appeared to be making every effort to recall
fully and describe accurately the events about which he was questioned
His testimony is uncontradicted.
sive absenteeism would not be tolerated. Both Zorich
and VanBuskirk testified that the Company's discipline
procedure, though progressive, did not include suspen-
sions. Suspensions, they testified, were deemed counter-
productive, particularly when used to discipline employ-
ees for excessive absenteeism or tardiness.
Murray was only the third person terminated by Re-
spondent at the Seymour location through April 14 and
only the second discharged for absenteeism and tardi-
ness. One employee, hired at the same time as Murray,
had been discharged on February 23 for absenteeism and
tardiness without having been previously suspended. The
record reflects that that employee had been tardy or left
early between 6 and 8 times and had I or 2 days of ab-
sence. 5
Zorich, who was Murray's supervisor in the ware-
house, testified that Murray worked for him for approxi-
mately 2 months, during which time he had attendance
problems. Zorich counseled Murray several times and
made records of those counseling sessions on Respond-
ent's employee interview record. According to Zorich's
testimony and the interview record Murray was spoken
to on February 1, March 5, 16, 19, and 22, and April 10
and I.
The interview comments of February 1 were highly
favorable, noting that Murray was a "very fast learner
. . made good progress . . . [had] no attendance or tar-
diness problems . . . [and] shows good overall potential
and versatility." (Emphasis supplied.) On March 5,
Zorich spoke to Murray for the first time about his at-
tendance. He noted that Murray had been absent 3
whole days and 2 partial days in February. Murray ex-
plained the reasons for his absences, his own illnesses and
his wife's pregnancy, and was told that these still count-
ed as absenteeism. On March 16, following an absence
on March 15, Zorich again cautioned Murray and gave
him a verbal warning.
When Murray was asked to work overtime on Satur-
day, March 17, he accepted the assignment but failed to
come in. On March 19, Zorich spoke to him again, point-
ing out that, once an individual had accepted overtime,
he was expected to be there and that such an absence
would be treated the same as if it occurred on a normal
workday.
Murray was absent, without calling in, on March 21.
The interview record states that when he called in on
March 22 he spoke with Laroff and asked whether he
still had a job. He told Laroff that he had car problems
and was told to report to work if he wanted to keep his
job. The record further related that he was told that con-
tinued absenteeism problems would place his job in jeop-
ardy. 6
5 Respondent adduced evidence of the discharges of a number of other
employees, subsequent to Murray, allegedly for poor attendance Some of
those were clearly instances involving attendance problems: others might
more accurately be deemed voluntary terminations, being discharged fol-
lowing 3 days of unexplained absence.
6 Murray did not recall this discussion with Laroff He admitted call-
ing Laroff on one occasion to say that he would be in and being told to
be there by noon even if he had "to ride horseback" He denied that
Laroff warned him about his attendance.
BEN FRANKLIN DIVISION 1515
On April 5, Murray left work at approximately 9:30
a.m. because he had lost a tooth filling. After learning of
the circumstances, Zorich, on April 6, asked Murray
whether he had had his tooth fixed. Murray replied that
he had not; instead, he told Zorich, he had his car re-
paired. 7
Murray failed to show up for overtime work on Satur-
day, April 7, and was absent on Monday, April 9. He
was spoken to about his absences, once again, on April
10. When asked, Murray claimed that he had called in
but that no one had answered. This could not have hap-
pened, Zorich testified, because the Company had a full-
time switchboard operator. Zorich told Murray that his
attendance would be discussed with Laroff and they
would let him know what was decided. Murray asked
whether that meant he might be fired; he was told that
termination was a possibility. He was terminated the fol-
lowing day.
Zorich testified that he recommended Murray's termi-
nation, to Laroff, as early as March 20. After discussion,
Zorich agreed to continue trying to work with Murray.
Zorich repeated his recommendation on April 9, at
which point VanBuskirk got into the discussion. At Van-
Buskirk's suggestion, Murray's absenteeism record was
compared with that of the other employees. It was, they
determined, the worst in the warehouse.
On Tuesday, April 10, VanBuskirk sought out Murray
and spoke to him. Murray denied that he had an absen-
teeism problem and said that he was only absent when
necessary. He did not believe that his absences were ex-
cessive.
Following his conversation with Murray, VanBuskirk
called Richard Wessels, City Products' vice president for
labor relations, for advice. In particular, he discussed the
risks of discharging an employee during a period of
known union organizational activity. In response to Wes-
sels' questions, VanBuskirk denied any greater knowl-
edge of Murray's union activity than that which employ-
ee Marsha Merrick had related to Laroff. They discussed
Murray's absenteeism record and Wessels directed Van-
Buskirk to repeat his comparison of Murray's records
with those of the other employees to be sure that Re-
spondent could not be accused of treating Murray dispa-
rately. 8
Subsequent to his conversation with Wessels, and a
second review of the absenteeism records, VanBuskirk
made the decision to discharge Murray. As noted, he
was discharged on April II.
To the extent that the testimony of Murray differs
from that given by Zorich and VanBuskirk, I credit the
latter two. While the testimony of the company wit-
nesses was, to some extent, self-serving, it was also cor-
roborated by documents and other testimony. I was fa-
vorably impressed by the demeanor and candor of each
of those witnesses, particularly Zorich. I was not similar-
7 Murray testified that he was unable to secure an appointment with
his dentist so he used the time to get his car fixed.
s According to the testimony of Wessels and others, such calls, from
local management to corporate labor relations specialists regarding dis-
charge and discipline of employees, were not unusual Vanluskirk had
placed a similar call to Ronald Ulm, City Products vice president for per-
sonnel, in regard to the first discharge for absenteeism at the Seymour
facility, that of employee Wheeler
ly impressed with the testimony of Murray. He was an
unpersuasive witness, argumentative and hostile, and he
acknowledged an inability to remember specific details.
D. Other A4lleged Violative Conduct
In mid-April, employee Randall Koerner had a con-
versation with Mark Hayes, Respondent's regional per-
sonnel manager. As Koerner recalled the conversation,
Hayes approached him, said that he was starting a sug-
gestion committee, and solicited Koerner's participation.
Hayes then asked whether Koerner had heard anything
about a union and, when Koerner said that he had heard
some talk, asked him whether they were still meeting at
Jerry's Restaurant. Koerner acknowledged that, as far as
he knew, they were. Hayes asked him how many people
usually showed up at the meetings, whether it was
always the same people and what motivated them to
seek representation. He asked whether it stemmed from
the employees' dissatisfaction with Zorich. Koerner re-
plied that, while there were some problems with Zor-
ich's supervision, money was the key issue. In response
to Hayes' questions, Koerner told him that the campaign
was pretty far along, that it had gone too far to stop, and
that a substantial percentage of the employees had signed
cards. He suggested that, if the Company were to do
anything, they might try to build morale among the em-
ployees. Hayes asked him how much the employees
wanted and Koerner suggested that the employees in
Seymour might be satisfied with a $1 to a $1.50 an hour
less than the $6.66 to $7 being paid in Kansas City and
Chicago.
On the following Monday, Hayes asked Koerner
whether he had heard anything more about the Union
and told Koerner that he had heard that there had been
a big beer bash during the weekend.
When, in about early May, employee Wanda Estes
went into Hayes' office to ask about a cash sales pro-
gram, Hayes asked whether she had heard anything
about union activities. She professed not to have heard
much and Hayes told her that the Union was having
weekly meetings. In their conversation, Estes asked
Hayes what the employees might expect by way of
future wage increases. Hayes told her that Respondent
would examine their records to see what kind of work
they were doing which would eventually grant merit in-
creases. 9
9 Hayes testified that Kerner initiated their conversation and denied
that they discussed anything other than the functioning of the suggestion
committee. He specifically denied questioning Koerner about the Union
and claimed that he would not have done so because he was fully ap-
prised of what union activity was going on through his familiarity with
most of the people who had been hired Similarly, Hayes denied ques-
tioning Estes about the Union. While the question is not entirely free
from doubt I credit Koerner and Estes over Hayes and find that the con-
versations occurred as described by them. Koerner. in particular, m-
pressed me as a very persuasive witness. His recollection of the events
was detailed and specific I note, too, that Koerner's and Estes' testimony
is mutually corroborative Hayes' explanation, on the other hand, that he
was so aware of the risks of interrogation, and so knowledgeable as to
the ongoing union activity. that he would not have interrogated employ-
ees in the manner described b Koerner and Estes was, particularly in
light of his inexperience itl matters involving the National Labor Rela-
tions Act, unconvincing
BEN FRANKLIN DIVISION
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 6, all employees, including office and manage-
rial, were called into the conference room, in small
groups, where a representative of an outside concern re-
tained by Respondent asked them to complete an em-
ployee opinion survey form.
In introducing the survey, the speaker told the em-
ployees that their complaints and comments would be
forwarded to the Employer, that the purpose was to get
a better idea of what was taking place in the warehouse,
and/or that the Company would see what it could to to
make things better. Their individual survey forms were
to be destroyed after the answers were tabulated; the em-
ployer would not know how any individual responded.
One employee, Oakes, asked whether the survey was
being taken because of the Union. He was told that the
individual taking the survey did not think so, that such
surveys were common.
The survey asked such questions as:
1. As a place to work compared to other compa-
nies is this company [better, about the same, not as
good?]
2. Do you think company policies are fair and
reasonable from the employees' standpoint?
5. How do your employee benefit plans (insur-
ance, vacations, holidays, etc.) compare with those
of your friends who work for other companies?
6. Is the take-home pay here as good as other
companies in the area?
7. Do you feel that your pay for your job is fair
compared with the pay for other jobs in the compa-
ny?
21. Are employee complaints settled promptly in
this Plant?
23. Are the schedules of work hours and shifts
generally satisfactory to you?
Other questions inquired into the quality of supervision
received by the employees vis-a-vis job training and disci-
pline. There were no references to unions in any of the
questions.
After completion of the written portion of the survey
the employees were asked whether they had any com-
plaints. They responded with comments about their
wages and other general problems. Some of their com-
plaints dealt with such matters as the failure of the
second shift to plug in the forklifts for the use of subse-
quent shifts, insufficient hours for third-shift employees,
shift-differential pay, and the failure to call employees
when a shift was canceled.
According to Respondent's uncontradicted evidence,
the taking of an employee opinion survey shortly after
the opening of a new facility was a standard operating
procedure for Ben Franklin and other divisions of City
Products Corporation. Such surveys, Respondent's repre-
sentatives testified, were normally taken within the first 3
to 6 months of the opening of a new center. Even before
the Seymour facility was opened, it was contemplated
that a survey would be taken there within that time
frame.
Normally, Respondent's surveys were taken through
one-on-one interviews of a random sample of employees
by Respondent's own personnel department employees.
Respondent intended to do it in that manner at Seymour
until the filing of the representation petition caused Wes-
sels, and City Products' vice president of personnel, Ulm,
to reconsider. Because they believed that such individual
interviews might be construed as unlawful solicitations of
grievances, they decided to have the survey taken by an
outside source, of all employees.
Followup meetings were conducted about June 20. In
these meetings, VanBuskirk summarized or read the re-
sults of the survey, telling the employees how they, as a
group, had responded to the questions. He acknowledged
that the survey showed a lack of communications be-
tween the employees and supervision and he told them
that management would have to work with the supervi-
sors to improve communications. Some employees raised
questions concerning their insurance benefits; VanBus-
kirk arranged for representatives of the insurance compa-
ny to come to Seymour to answer the employees' ques-
tions. A number of employee responses complained of in-
adequate wages. In the course of his discussion, VanBus-
kirk told at least some of the groups of employees that
the Company would be doing something about wages
"as they had previously said they would," but they
would not know exactly what until July 6.
After relating the results of the survey, VanBuskirk
opened the floor to questions. Many of the questions
dealt with operational or safety problems; he explained
what the Company was doing to try to alleviate those
problems. Some dealt with problems in the working
hours and benefits and such matters as shift-differential
pay. VanBuskirk told the employees that he could not
promise them anything in response to their problems and
complaints. ' 0
In early July, employee Kevin Crockett was called
into Supervisor Dave Wolford's office during the third
shift. Wolford told Crockett that he hoped that Crockett
would vote for the Company and said that "if the Union
did come in, it would just mess us up worse."
On July 2 and 3 Company Attorney Smith met with
approximately 10 groups of employees to explain the
final election arrangements and to present the Company's
position on election issues. When, in the course of one
meeting, Smith explained that union security would be
an early and important issue in union negotiations and
that the Company would oppose granting union security,
R. V. Oakes spoke up. He either asked a question about
"closed shops" or suggested that this would be a "closed
shop." Smith responded by stating either that a closed
shop agreement (that is, one requiring union membership
'° The foregoing is a composite of the testimony of Oakes, Koerner,
Crockett, Estes, Merrick, and VanBuskirk. There were no significant in-
consistencies in their testimony.
BEN FRANKLIN DIVISION 1517
prior to the acquisition of employment) was illegal or
that Respondent would never agree to a closed shop.
On July 6, Respondent held a gathering of its employ-
ees to celebrate the 6-month anniversary of the opening
of the Seymour facility. During this meeting, VanBuskirk
told them: "As we already knew, we would be getting a
15-cent raise. [H]e said that since it . . . had already
been planned before this union situation came up" he
could go ahead and announce it, that there was a 15-cent
raise for employees at the end of 90 days, another 15
cents at 6 months, 25 at the end of 9 months and 25
more at the end of the year" and that, after 12 months,
the employees would be told what future increases there
would be.
None of the employees had previously been told what
raises, if any, they would get beyond the completion of 6
months of employment. When hired they were told what
their starting rate would be, $3.85 per hour, and that
they would receive 15-cent-per-hour raises upon the
completion of 3 and 6 months. As to wage increases
beyond that, those who had been told anything (and sev-
eral employees testified that future raises had never been
discussed with them) were told that they might receive
merit increases, or that they might be making close to $5
after I year, or that the Company would inform them at
the end of 6 months what their future increases would
be, or that raises beyond 6 months would depend on the
Company's progress and there would be announcement
of what the raises would be.
Respondent's witnesses testified that, from the outset,
they intended to announce and grant additional raises
beyond the first 6 months. The size of those raises, how-
ever, had not been determined when the initial rates
were set. Thus, Wessels testified that no decision on
amounts was made because the company did not know
what it would have to pay; he wanted to reexamine the
local wages, their experience in recruiting, inflation, and
the cost of living. In mid-June, he directed the Seymour
personnel manager, Hayes, to compare Respondent's
wages with those of other employers in the community.
That survey, he testified, showed that they were behind
their competition for employees. Wessels also checked
and learned that in Brookings, South Dakota, during
1977, Respondent's sister corporation, Coast to Coast
Stores, had granted wage increases of 25 cents after 9
months from the opening of its warehouse and again
after a year.
Wessels' testimony was corroborated by that of Lloyd
Towner, a vice president of Coast to Coast Stores, Ulm,
VanBuskirk, and Hayes. Additionally, company corre-
spondence directed to Ulm as early as June 29, 1978, in
regard to the wage survey performed to determine start-
ing rates at Seymour, projected a wage rate for the
warehouse employees of $4.50 per hour after I year.
That letter stated, in regard to the wage rate: "However,
the inflation picture is so uncertain at this time that I
don't think we should tie ourselves down to a specific
number until we see the quality of people hired and see
where the C.O.L. will be this fall."
i' Testimony of Koerner as corroborated by VanBuskirk.
A final series of meetings with groups of employees
was held on July I. Wessels spoke to them about last
minute changes in the election schedule and procedures
and about the nature of collective bargaining. Employee
Crockett recalled Wessels being asked about the deduc-
tion of union dues from employees' paychecks and re-
sponding "that the Company would not take them out,
and that they wouldn't agree to that and that they would
shut down before they agreed to it." Wessels testified
that he said only that the Company would comply with
its obligation to bargain in good faith but was not obli-
gated to agree to any specific demand by a union, and
that, because a substantial number of employees might
not favor the Union, union security and checkoff would
be serious issues; the Company would oppose both in ne-
gotiations.
In the foregoing exchange, I credit the testimony of
Wessels which was corroborated by both VanBuskirk
and Hayes. Crockett's testimony was clearly in error as
to the date when the alleged statements were made, his
testimony was considerably less detailed than that of
Wessels, and he acknowledged that there were side con-
versations going on during the meeting. Such conversa-
tions could have impinged upon both his aural observa-
tion and his recollection of the statements by Wessels.
In this same meeting, according to the uncontradicted
testimony of Crockett, Hayes asked Crockett and several
other third-shift employees "to give the Company a
chance," took down their phone numbers, and said that
they would be called if their shift was ever canceled for
a night.
On July 12, the day before the election, employee
Koerner came to work wearing a Teamsters emblem on
his T-shirt. Zorich approached him, while he was work-
ing, and asked, "What's that, Randy? I'm ashamed of
you." Koerner asked, "Why?" and Zorich said, "Give us
a chance, give [yourself] a chance, give the Company a
chance to prove that we are a good Company and that
we will take care of [you] and that [you] don't need a
union." On the day of the election, Zorich again asked
Koerner to give the Company a chance. He said, "We're
a good Company, we'll take care of [you]. The money
will come." 2
On the same day, according to Wanda Estes, when
Zorich gave her her paycheck, he said, "That [she]
should change [her] mind and vote no, and give the
Company a chance." This testimony stands undenied.
E. Analysis and Conclusions
1. The 8(a)(1) violations
a. Surveillance
The General Counsel's allegation of unlawful surveil-
lance of union activities rests upon the testimony of
Murray to the effect that Zorich looked through his file
folder and watched him more closely after the April 5
meeting. Respondent did not deny watching Murray
12 The foregoing is taken from the candid recollection of Walter
Zorich. Koerner's testimony differed only slightly and, noting Zorich's
candor, I choose to credit his version
BEN FRANKLIN D VISION
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work or examining the contents of the file folder; both
actions, it contends, were legitimate exercises of supervi-
sion and not surveillance. Murray's testimony, I find, is
too general to warrant a conclusion that Respondent's
observations of him were for illicit purposes.
b. Interrogation
The questioning of one's employees in order to deter-
mine their union leanings or in order to make clear the
employer's pposition to unionization has long been
found to have a tendency to coerce employees in the ex-
ercise of their Section 7 rights and thus violate Section
8(a)(l) of the Act. See, for example, N.L.R.B. v. Virginia
Electric and Power Co., 314 U.S. 469 (1941); Struksnes
Construction Co. Inc., 165 NLRB 1062 (1967), approved
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 609
(1969). The record herein contains several instances of
such coercive interrogation. Thus, I find that Laroffs
questioning of Elliott on April 9, as to who the union
supporters were and why they sought representation,
and Hayes' interrogations of both Koerner and Estes, in
mid to late April and early May, concerning their knowl-
edge of the union activities, who and how many showed
up at union meetings, and what motivated them to seek
representation, all uttered in the context of other coer-
cive conduct, must be held to violate Section 8(a)(1).
The record contains no evidence of any valid purpose
for such interrogation. Compare Struksnes, supra.
c. Creating the impression of surveillance
Conduct which reasonably leads employees to believe
that their union activities have been placed under surveil-
lance is unlawfully coercive. In the same conversation
wherein I have found Supervisors Laroff and Hayes to
have unlawfully interrogated employees, there is evi-
dence that such impressions were fostered. Thus, Laroff
told Elliott that he was aware of the union activity, that
he knew who was passing out union cards, that he knew
where the union meetings were being held, and that he
had someone, on the inside, who told him about those
meetings. Hayes' conduct vis-a-vis both Koerner and
Estes, implying that he knew the employees were hold-
ing meetings, and where, was similar. Employees might
reasonably believe that such information would only
come into the employer's possession if it were spying on
the employees' union activity. I therefore find that, by
these statements, Respondent has unlawfully created the
impression of surveillance in violation of Section 8(a)(l)
of the Act. Murcole, Inc., 204 NLRB 228, 234 (1973).
d. Solicitation of grievances and promises of benefit
The complaints allege that Respondent violated Sec-
tion 8(a)(1) by soliciting employees to register their
grievances with it in order to induce them to reject the
Union as their collective-bargaining agent. The essence
of such a violation is not the solicitation of grievances
itself; rather, it is the inference created by such solicita-
tion that the Employer is promising to correct those
grievances. Uarco Incorporated, 216 NLRB 1 (1974). As
the Board stated in Reliance Electric Company, Madison
Plant Mechanical Drives Division, 191 NLRB 44, 46
(1971):
Where, as here, an employer, who has not previ-
ously had a practice of soliciting employee griev-
ances or complaints, adopts such a course when
unions engage in organizational campaigns seeking
to represent employees, we think there is a compel-
ling inference that he is implicitly promising to cor-
rect those inequities he discovers as a result of his
inquiries and likewise urging on his employees that
the combined program of inquiry and correction
will make union representation unnecessary.
This inference is, however, rebuttable. Uarco, supra.
In the instant case, the General Counsel has alleged
that Respondent unlawfully solicited its employees'
grievances and promised them benefits by its June 6 em-
ployee opinion survey and the followup meetings relat-
ing thereto. Respondent, pointing to its history of con-
ducting similar surveys upon the opening of new facili-
ties, denies that its conduct violated Section 8(a)(1) of
the Act.
Respondent's principal reliance, in support of its con-
tention, is upon ITT Telecommunications, a Division of In-
ternational Telephone and Telegraph Corporation, 183
NLRB 1129 (1970). Therein, the employer had teachers
from a local university conduct an extensive survey of
employee sentiment. The survey, taken in such a way
that the employees' names or other identification would
not be revealed to the employer, "sought to glean the
employees' attitude concerning every aspect of their
work duties, pay, indirect benefits, relationship with their
individual supervisors, and physical surroundings." One
question, number 77, inquired whether many of the em-
ployees' co-employees wanted to see the union acquire
representational status. The results of the survey were
presented to the employer and were explained to groups
of the employees. At the time of those explanations, the
employees were also asked to vocalize their complaints
and the company's personnel director wrote down every
complaint so voiced. The principal issue presented by
that case was whether question number 77 constituted
unlawful interrogation. The Board found that it did not;
it went on to say that the employer's actions, as de-
scribed above, did not appear to have been taken with an
objective of implying promises of benefits with an intent
to interfere with, restrain, or coerce employees in their
organizational efforts.
Similarly, in Leland Stanford Jr. University and Stan-
ford University Hospital, 240 NLRB 1138 (1979), the
Board found no 8(a)(1) violation in the administration of
an opinion survey soliciting employees' grievances
which, the Board concluded, was conceived for legiti-
mate business reasons and not designed in response or
opposition to the union's organizing effort. In that case,
the record made clear that there was no active cam-
paigning for or against the union for a considerable
period of time both prior and subsequent to the distribu-
tion of the survey and no election was scheduled or im-
minent. The Board stated that the situation there, "while
technically arising in a pre-election context, is distin-
BEN FRANKLIN DIVISION 1519
guishable from those cases where the timing of the em-
ployer's conduct made it reasonable to infer that the ac-
tions were taken for the purpose of eroding employee
support for the union." Id. at fn. 1.
In the instant case, the evidence establishing that some
form of employee opinion survey was normally taken by
Respondent within the first 6 months of opening new
facilities tends to establish that here, as in Stanford Uni-
versity Hospital, Respondent conceived its survey for le-
gitimate business reasons. On the other hand, the timing
here is unlike that in Stanford University Hospital in that
the survey was taken in the midst of a very active orga-
nizational campaign. Such timing permits the inference
that the survey and the subsequent meetings held to dis-
cuss the responses to it were timed to interfere with the
employees' freedom of choice in the election. See The
May Department Stores Company, 191 NLRB 928 (1971).
While Respondent points to its history of taking em-
ployee opinion surveys in new facilities to demonstrate
the legitimacy of its business reasons for taking the in-
stant survey, the record is clear that this survey did not
follow the same pattern that Respondent had utilized at
other facilities. In this case, the surveys were formally
conducted, with written questionnaires, and every em-
ployee was asked to respond to the survey. Prior surveys
had been taken much more informally and of only a
random sampling of the employees. The changes in prac-
tice, together with the formality of the meetings and the
introduction of the survey as being intended to assist the
Company to see what it could do to make things better,
coupled with the additional facts that no prior survey
had been taken among these employees, and that shortly
after the survey was taken several of the employees'
complaints were remedied-wages were increased, the
insurance plans were explained, and efforts were taken to
advise employees when there would be no work for
them on a given shift-"undoubtedly conveyed to the
employees the message that Respondent, in its effort to
defeat the Union, was now willing to look much more
favorably on any request they might make." The Stride
Rite Corporation, 228 NLRB 224, 225 (1977).
Accordingly, I find that, by conducting its employee
opinion survey in the manner in which it did, Respond-
ent solicited its employees' grievances and promised
them that those grievances would be remedied, in order
to erode employee support for the Union, in violation of
Section 8(a)(1) of the Act. See Wonder Markets, Inc., 246
NLRB No. 56 (1979).
I further find, as alleged by the General Counsel, that
the announcement on July 6, of wage increases sched-
uled to take effect after 9 and 12 months of employment,
constituted promises of benefit designed to interfere with
the employees' exercise of their statutory rights, in viola-
tion of Section 8(a)(1) of the Act. In so concluding, I
note that Respondent had no fixed determination prior to
the union campaign as to either the form wage increases
beyond 6 months would take, the amounts of those in-
creases, if any, or the timing of any announcements con-
cerning such increases. All of its earlier references to
wage increases beyond 6 months of employment were
highly speculative and no determination was made as to
the amount of the promised increases until well into the
union organizational campaign. In these circumstances,
Respondent cannot be heard to say that it was compelled
to announce such wage increases when it did. It must be
noted that the announcement followed receipt of a
number of employee complaints about wages, arising out
of its employee opinion survey, and that the wage an-
nouncement occurred only I week prior to the election
but 3 months prior to the date when the promised wage
increase would take effect.
Additionally, I find that Respondent, through the
statements of Zorich to Koerner, on the day preceding
and the day of the election, further implied improve-
ments in wages and working conditions and did so spe-
cifically in the context of soliciting the employees' vote
against the Union. Thus, in asking Koerner to "give the
Company a chance" Zorich told him that Respondent
was a good company, one that would take care of him,
that he did not need a union, and that "the money will
come." Such statements clearly constitute promises of
benefit intended to erode employee support for the
Union, in violation of Section 8(a)( I) of the Act. '
e. Threats of discharge and other reprisals
On April 9, Laroff, after telling Elliott that he knew of
Murray's union activity, said that Murray's job was in
jeopardy because of his attendance problem and that he
could have terminated Murray earlier but had not be-
cause he knew of Murray's problem. General Counsel al-
leges that such statements impliedly threaten discharge
for engaging in union activities. I agree. Whether or not
Murray's subsequent discharge was in fact unlawfully
motivated, Laroffs statements carry the clear implication
that employer tolerance for a personal problem resulting
in absenteeism would be lessened in the case of union ac-
tivists. Such a threat violates Section 8(a)(1) of the Act.
The General Counsel further contends that Wolford's
statement to Crockett, around July 3, to the effect that if
the Union did come in "it would just mess up the em-
ployees worse," constituted an additional threat in viola-
tion of Section 8(a)(1) of the Act. I cannot so find. Wol-
ford's statement was entirely too vague and ambiguous
to come within the ambit of Section 8(a)(1).
f. Threats to bargain in bad faith
The General Counsel alleges that Respondent threat-
ened that it would never agree to either dues checkoff or
union security in the event that the Union won the elec-
tion. The evidence fails to support these contentions; Re-
spondent only predicted that it would oppose the grant-
ing of such provisions and would bargain hard thereon.
There is no credible evidence that Respondent ever
stated that it would not bargain on those issues. Accord-
" In this same conversation, Zorich alluded to the Teamsters emblem
being worn by Koerner and told Koerner, "'I'm ashamed of you " While
not specifically alleged as an independent violation of the Act, this state-
ment s'as admitted, was related to other complaint allegations, and was
fully litigated. Such a statement conveys to the employee the message
that his employer equates engaging in union activity, a protected statu-
tory right, with employee disaffection or disloyally, tends to interfers
with, restrain, or coerce employees in the exercise of their Sec 7 rights
and violates Sec 8(a)(1) See Otcar Enrerprisei. Inc. OMCO, Inc Halin
Productv Co. 214 NLRB 23 (1974)
BN FRANKLIN D VISION
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, I shall recommend that this allegation be dis-
missed.
2. The discharge of Murray
The issue in this case, as in most cases arising under
Section 8(a)(3) of the Act, is to ascertain Respondent's
true underlying motive. N.L.R.B. v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 45-46 (1937). The General Coun-
sel bears the burden of proving, by a preponderance of
the evidence, that Respondent's actions were improperly
motivated. See Western Tug and Barge Corporation, 207
NLRB 163 (1973); see also McCain Foods. Inc., 236
NLRB 447 (1978), enfd. sub nom. Eastern Smelting and
Refining Corporation, 598 F.2d 666, fn. 1 (Ist Cir. 1979).
"In assessing a respondent's motivation, the Board
deems it appropriate to consider certain established fac-
tors: knowledge of union activities, animus towards such
activities, and the validity of the reasons asserted for the
personnel actions taken." McCain Foods, supra at 452.
The timing of those actions is also a factor. The Berry
Schools, 239 NLRB 1160 (1979).
In this case, several of the relevant factors point to a
conclusion of unlawful motivation. Murray had, in fact,
engaged in union activity; he was the Union's spearhead.
Respondent was aware of that activity. Respondent ad-
mitted that it knew, from Merrick's conversation with
Laroff, that Murray had some interest in the Union. In
fact, Laroff's April 9 conversation with Elliott indicated
that Respondent knew that Murray was passing out
union authorization cards. The timing of Murray's dis-
charge, coming only 6 days after the first union meeting,
and about 10 days after Laroff's conversation with Mer-
rick concerning Murray's union activities, similarly evi-
dences unlawful motivation.
The record herein further evidences Respondent's hos-
tility toward the employees' union organizational activi-
ties. That hostility is demonstrated by the several viola-
tions of Section 8(a)(l) described above.
However, the record also establishes that Murray had
both a substantial record of absenteeism and tardiness
and poor attitude toward attendance and that the em-
ployer had a policy aimed at discouraging such industrial
infractions. The issue thus becomes one of separating the
various possible motivating factors to determine whether
the unlawful factors were substantial or dominant.
Based upon the record before me, I must conclude
that the General Counsel has failed to sustain his burden
of proving that the discharge of Murray was unlawfully
motivated. In reaching this conclusion I note, in particu-
lar, that Respondent did have a policy in regard to ab-
senteeism and tardiness, its discipline policy did not call
for the suspension of employees, Respondent had applied
its policies to at least one other employee in the brief
time it had been in operation prior to Murray's discharge
and continued to apply them to employees subsequent to
Murray's discharge, that Murray had been repeatedly
counseled about his absenteeism and had shown no incli-
nation to improve his performance. In fact, the record
reflects an acceleration of the frequency with which
Murray was absent; he was absent on 3 of the 6 days im-
mediately preceding his discharge. There was no evi-
dence that Murray was treated disparately; Respondent,
in fact, took pains to assure that his treatment was con-
sistent with that accorded other employees.
In Rosso and Mastracco, Inc. d/b/a Giant Open Air
Market, 231 NLRB 945 (1977), the Board, Member Jen-
kins dissenting, stated:
An employee cannot insulate himself or herself
from a discharge for cause simply because he or she
happens to engage in activity protected by the Act.
In Klate Holt Company, 161 NLRB 1606, 1612
(1966), the Board said:
The mere fact that an employer may desire to
terminate an employee because he engages in un-
welcome concerted activities does not, of itself,
establish the unlawfulness of a subsequent dis-
charge. If an employee provides an employer
with a sufficient cause for his dismissal by engag-
ing in conduct for which he would have been
terminated in any event, and the employer dis-
charges him for that reason, the circumstance
that the employer welcomed the opportunity to
discharge does not make it discriminatory and
therefore unlawful.
See also Golden Nugget, Inc., 215 NLRB 50 (1974).
Thus, it is clear that employee misconduct which
would justify a discharge, absent any protected ac-
tivity, will also justify a discharge despite protected
activity.
I find, on the basis of this record, that Murray's absen-
teeism record would have justified and brought about his
discharge absent any protected activity. It therefore justi-
fies his discharge despite that activity. I shall recommend
that the allegation that Respondent has violated Section
8(a)(3) of the Act be dismissed.
III. CONDUCT AFFECTING RESULTS OF ELECTION
I have found that Respondent violated Section 8(a)(l)
of the Act by certain conduct occurring prior to April
18, the date the petition was filed. Under longstanding
Board precedent, such conduct cannot be relied upon as
a basis for setting aside the election. The Ideal Electric
and Manufacturing Company, 134 NLRB 1275 (1961);
Goodyear Tire and Rubber Company, 138 NLRB 453
(1962). However, within the objections period I have
found that Respondent created the impression that it was
engaging in the surveillance of employees' union activi-
ties, solicited employees' grievances and promised them
benefits, and implied that an employee was disloyal to
the Company because he supported the Union's cam-
paign, essentially as alleged in Objections 5, 7, 9, and 12.
This conduct violated Section 8(a)(1) of the Act and it
is the Board's generally stated policy "to direct a new
election whenever an unfair labor practice occurs during
the critical period since [c]onduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in the elec-
tion." Super Thrift Markets, Inc. t/a Enola Super Thrift,
233 NLRB 409 (1977); Dal-Tex Optical Company, Inc.,
137 NLRB 1782, 1786-87 (1962). Accordingly, I recom-
BEN FRANKLIN DIVISION 1521
mend that these objections be sustained and that the elec-
tion be set aside and a rerun election conducted.' 4
IV. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By interrogating its employees concerning their
union membership, activities, and desires, by creating the
impression that it was engaging in surveillance of em-
ployees' union activities, by soliciting the grievances of
its employees and promising them benefits in order to
dissuade them from joining or otherwise supporting the
Union, by threatening employees with discharge because
of their support for the Union, and by implying to its
employees that they were being disloyal to the Employer
if they supported the Union, Respondent has interfered
with, restrained, and coerced its employees in the exer-
cise of rights guaranteed them under Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act.
2. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Certain of the unfair labor practices set forth in sub-
paragraph , above, occurring on or after April 18, 1979,
have interfered with the employees' rights to a free and
untrammeled choice in the election conducted in Case
25-RC-7181 on July 13, 1979, and have tainted the re-
sults of that election.
4. Respondent has not engaged in any unfair labor
practices not specifically found herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby make the following recommended:
ORDER ' 5
The Respondent, Ben Franklin Company, Inc., a Sub-
sidiary of City Products Corporation, Seymour, Indiana,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
membership, activities, and desires.
(b) Creating the impression that it was engaging in the
surveillance of employees' union activities.
(c) Soliciting its employees' grievances and promising
them benefits in order to dissuade them from joining or
otherwise supporting the Union.
(d) Threatening its employees with discharge because
of their support for the Union.
" The evidence failed to support Objection 8 and I shall recommend
that it be overruled.
i' In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(e) Implying to its employees that it equated support
for the Union with disloyalty toward the Employer.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Seymour, Indiana, warehouse copies of
the attached notice marked "Appendix."' 16 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS UR'IHER RECOMMENDED that the complaint be
dismissed in all other respects.
IT IS FURTHER RECOMMENDED that Objections 5, 7, 9,
and 12 be sustained, that Objection 8 be overruled, that
Case 25-RC-7181 be remanded to the Regional Director,
that the election conducted on July 13, 1979, be set
aside, and that the Regional Director conduct a rerun
election at such time as he deems the circumstances
permit a free choice on the issue of representation.
Hi In the event that Ihis. Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Erforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE TO EMPL.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELIATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were afforded the
opportunity to present evidence, it has been found that
we violated the National Labor Relations Act in certain
respects and we have been ordered to post this notice
and to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organilation
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WIL. NOT interrogate you concerning your
union membership, activities, or desires.
BEN FRANKLIN D VISION
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT solicit your grivances or promise
you benefits in order to dissuade you from joining
or otherwise supporting Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No. 135,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other union.
WE WILL NOT create the impression that we are
engaging in surveillance of your union activities.
WE WILL NOT threaten to discharge you because
you support the Union.
WE WIIL NOT imply that we consider support for
the Union to be disloyalty to us.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their statutory rights.
BEN FRANKLIN COMPANY, INC., A SUHSIDI-
ARY OF CITY PRODUCTS CORPORATION