Chester Valley, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1435 (N.L.R.B. 1980)

CHESTER VALLEY,INC. 1435 Chester Valley, Inc. and Local 445, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 2-CA-16163 and 2-RC-18160 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On February 25, 1980, Administrative Law Judge Nancy M. Sherman issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a sup- porting brief and an answering brief to Respond- ent's exceptions. 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, 2 and conclusions of the Administrative Law Judge 3 and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Chester Valley, Inc., Chester, Monroe, and Vails Gate, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election which was conducted in Case 2-RC-18160 be set aside, and the petition in that case be dismissed. i A majority of the panel finds without merit Respondent's contentions concerning amendment of the complaint with respect to the magnitude of the November 1978 wage increases. and denies the motion to remand the case to allow Respondent to introduce evidence on the amended allega- tion. Member Truesdale would dismiss this allegation on the ground that the General Counsel failed to present sufficient evidence showing a dis- parity between the magnitude of the November 1978 wage increases and the magnitude of wage increases granted the employees in prior years. 2 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 her find- ings. 3 Chairman Fanning would not find as did the Administrative Law Judge that Respondent had a bargaining obligation beginning November I. 1978. See his separate opinions in Beaslesy Energy. Inc., d/b/a Peaker Run Coal Company. Ohio Division #1. 228 NLRB 93 (1977). and Ilambre Hombre Enterprises. Inc., d/b/a Panchitos, 228 NLRB 136 (1977) 251 NLRB No. 190 DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: These consolidated cases were heard in Goshen, New York, on July 9 through 13, 1979. Pursuant to a petition filed on November 1, 1978, by Local 445, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), and a Decision and Direction of Election issued by the Acting Regional Director for Region 2 on December 12, 1978, a representation election was conducted among employees of Chester Valley, Inc. (the Company), on January 16, 1979. The Union lost this election by a tally of 18 to 14, with 1 challenged ballot. The issue presented in Case 2-RC-18160, the representation case, is whether the election should be set aside pursuant to the Union's timely filed objections based on allegations much the same as certain unfair labor allegations in the consoli- dated unfair labor practice case. The charge in Case 2- CA-16163, the unfair labor practice case, was filed on January 23, 1979, and the complaint was issued on March 20, 1979. The issues presented in that case are (a) whether the Company violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended (the Act) by al- legedly offering to negotiate directly with employees if they abandoned their support of the Union, by allegedly threatening employees in certain respects and promising them certain benefits in order to induce them not to sup- port the Union, and by certain conduct in connection with wage increases (see infra); and (b) whether the Company's admitted failure to honor the Union's bar- gaining demand calls for an 8(a)(5) finding and/or a bar- gaining order, in view of the foregoing alleged 8(a)(1) violations and the undisputed fact that a majority of the employees in an admittedly appropriate unit signed union authorization cards, notwithstanding the Union's subse- quent election loss and the Company's contention, inter alia, that the authorization cards were inoperative, pri- marily by reason of alleged misrepresentations. Upon the entire record,' including the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the Company and counsel for the General Counsel (the General Counsel), I hereby make the following: FINDINGS OF FACT 1. JURISDICTION The Company is a New York corporation which main- tains its principal office and place of business in Chester, New York, and other facilities in Vails Gate, New York, and Monroe, New York. At all material times herein, the Company has been engaged in the wholesale and retail sale of fuel oil, automotive supplies, and automotive and oil burner services. During the year preceding the issu- ance of the complaint, the Company had gross revenues of more than $500,000, and purchased and received at its I The unopposed motion by counsel for the General Counsel to cor- rect the record in certain respects is hereby granted. CHESTER VALLEY, INC. 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York State facilities goods and materials valued in excess of $5,000 directly from points outside New York. I find that, as the Company concedes, it is engaged in commerce within the meaning of the Act, and that asser- tion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGEDLY OBJECTIONABLE CONDUCT AND THE ALLEGED UNFAIR LABOR PRACTICES A. Background As detailed infra, in October 1978 some of the Compa- ny's employees signed cards authorizing the Union to represent them. On November 1, 1978, the Union filed a representation petition with the Board's Regional Office for Region 2, seeking an election in a unit consisting of "All truck drivers, mechanics and servicemen of the Em- ployer in Chester and Vails Gate, N.Y.," excluding "All office clericals, supervisors, watchmen and guards and all others excluded by the Act. "By telegram to the Compa- ny dated November 2, 1978, the Union alleged that it represented a majority of the employees in an allegedly appropriate unit consisting of "all truck driver service men and mechanics in Chester and Vails Gate, New York." The telegram requested a meeting to demonstrate the Union's alleged majority status and to arrange for bargaining meetings directed toward a collective-bar- gaining agreement. The Company admittedly failed to honor the Union's bargaining demand. 2 On November 13, 1978, during the representation case hearing, the Union amended its petition to allege as ap- propriate a unit of all truck drivers, mechanics, and serv- icemen in the Company's Chester, Vails Gate, and Monroe facilities, excluding all office clerical employees, guards, and supervisors, as defined by the Act. On De- cember 12, 1978, the Acting Regional Director for Region 2 directed an election in a unit consisting of all full-time, regular part-time, and seasonal truckdrivers, mechanics, servicemen, warehousemen, and dispatchers employed by the Company at its Chester, Monroe, and Vails Gate, New York, facilities, but excluding all office clerical employees, sales personnel, accountants, guards and supervisors as defined in the Act. The Company's answer admits that this unit is appropriate. B. Alleged Unfair Labor Practices Not Shown to be Post-Petition In late October or early November 1978, Company Controller Gary Jones took employee Robert Vogt aside and, after making some remarks about the weather, said that he had heard that most of the employees had signed pledge cards for the Union. Vogt said that he believed this was true. Jones asked why the employees wanted 2 At the outset of the July 1979 hearing, company counsel took the position that the Union had never demanded recognition in an appropri- ate unit (see infra sec. 11,F,2,a) and, therefore, that there had never been a refusal to bargain. A letter to the employees dated November 13, 1978, from Company President Charles Krieger states, that after receiving a "letter" from the Union demanding recognition, "I told ... the Union that I would not recognize it without a secret ballot election." the Union, and what it would take to keep the Union out, "More benefits, wages or whatever." Vogt replied that Jones would have to speak to the employees as a group, because Vogt could not answer that question to Jones. Whether the Company is answerable for Jones' con- duct in the foregoing respect is discussed infra section II,F,l,a,l. The conduct summarized in the preceding paragraph is not preponderantly shown to have occurred after the petition was filed. C. Alleged Post-Petition Unfair Labor Practices I. Alleged conduct in connection with wage increases Paragraph 12 of the March 20, 1979, complaint alleged that on or about December 19, 1978, the Company granted a wage increase to all employees in the unit, ret- roactive to November 25, 1978, in order to induce these employees to abandon their support of the Union. The Company's March 26, 1979, answer denied "each and every allegation" of paragraph 12. On July 13, 1979, after all parties had rested, the General Counsel orally moved to amend paragraph 12 "to allege that in Novem- ber 1978, the employer withheld wage increases because the employees had engaged in union activities and be- cause of the presence of the Union. And then in Decem- ber 1978, specifically on or about December 19, 1978, the Company granted wage increases to all the employ- ees in the unit . . . wage increases of a larger magnitude than it would have normally, and also, retroactively. The magnitude and the retroactivity being because of the-in order to induce the employees to abandon their support of the Union." Company counsel stated on the record that, if this motion were granted, he did not believe that he would have any evidence to offer other than the evi- dence he had already offered. After he so stated, I with- held ruling on the motion. The Company's September 1979 brief reiterates the contention that the motion for leave to amend the com- plaint should be denied. Moreover, although company counsel did not so state at the hearing, counsel's brief as- serts that he averred at the hearing that he did not have additional evidence to offer "because 1) the General Counsel failed to present any evidence supporting the amended allegations and 2) because the amendment at the conclusion of all the testimony was improper." How- ever, the Company's brief neither claims that the Compa- ny would have offered any additional evidence at the hearing, if the complaint as issued had included the pro- posed amendment, nor claims the existence of any evi- dence not already in the record, which supports its posi- tion on the merits of the proposed amendment. More- over, this brief deals with the proposed amendment on its merits. Under these circumstances, I hereby grant the motion for leave to amend the complaint in this respect. Company Controller Jones, who had worked for the Company for more than 9 years, testified that "The sub- ject of wage increases in November has been always kind of an accepted fact of life over the last several years at Chester Valley." Moreover, the Company's brief CHESTER VALLEY, INC. 1417 states that the Company "has a past practice of granting wage increases in November of each year." As to the size of the autumn increases given before 1978, the positive evidence is limited to three employees. Employee Roger Williams, who worked for the Compa- ny between 1973 and February 1979 with a break be- tween 1977 and 1978, credibly testified that he received a 4.3-percent increase (from $3.45 to $3.60) in November 1976 and a 4.2-percent increase (from $3.60 to $3.75) in November 1977. Employee Edward Schaffer, a company employee since 1972, credibly testified that he received a 3.8-percent increase (from 3.90 to $4.05) in November 1976 and a 4.9-percent increase (from $4.05 to $4.25) in November 1977. The Company offered into evidence the payroll records for employee Vogt, the only records for any employee offered into evidence by any of the par- ties. These records show that he was hired in April 1976, received a 3.5-percent increase (from $4.35 to $4.50) ef- fective for the payroll week ending November 6, 1976, and received a 3.3-percent increase (from $4.50 to $4.65) effective for the payroll week ending November 19, 1977. In the summer of 1978, Controller Jones told employ- ee Vogt that all the employees would probably receive an increment in November. About August 1978, Compa- ny Manager Russell O'Dell told two of the employees that they were due a raise but he did not know whether they were going to get one or not. 3 Also in August 1978, employee Michael Monte requested a wage in- crease from Company President Krieger, who said he would take it under advisement. In the first half of Octo- ber 1978, before beginning the organizational activity, Monte again asked for a raise, and Krieger replied that there was no money in the checkbook. On a date be- tween July 4 and September 4, 1978, Controller Jones told several employees that "possibly" or "probably," the "way things are today, the raises would not be in effect as they normally would be" in November. Maurice Scandurra is a seasonal employee who oper- ates a farm in the summer and works for the Company full time for about 4 months a year, beginning in Novem- ber. About September 1978, before he resumed working for the Company, he told Controller Jones that he would not return to work at the rate Scandurra had received before his March 1978 return to farming. Jones checked the matter with Krieger, who said there would be no problem with Scandurra. Then, Jones told him that there would be a November increment. Scandurra resumed working for the Company about November 13 or 20. About the third week in November, he approached Jones about the promised raise. Jones said that Scandurra would have to talk to Company President Krieger. Then, Krieger approached Scandurra and said, "I can't make a move now, my hands are tied." Jones testified that he discussed the wage-increase matter with Krieger on a date between November 20 and 22, and that Krieger then told him that the wage in- crease was not going to be effective because Krieger was not sure of his legal position. 3 The December 1979 Decision and Direction of Election states (fn 1) that the parties had stipulated O'Dell to be a super isor About the first week in December, but after Saturday, December 2 (see infra), Krieger and Jones had a confer- ence with counsel, who asked what the employees were looking for in a union. On the following day (see infra), the Company distributed to the employees a letter which stated, inter alia: As you know, for the past few years I have given wage increases in the fall of the year. Last year those increases were given on November 19. 4 This year I had planned to put those wage increases into effect on Monday November 20. However, because of the Election Petition filed by [the Union], I was not sure whether or not I had the legal right to give those increases. Yesterday I met with my attorneys and they said that they felt I had the legal right to give the wage increases, although I was cautioned that there is some risk involved. I am willing to take the risk. I simply see no reason why the great majority of our employees who are loyal to the Company should suffer be- cause of a few employees who have been misin- formed and misled by the Union. I will sit down with the Managers of each loca- tion and together we will decide on the wage in- crease to be given to each employee. Those in- creases will be retroactive to November 20. The letter went on to allege that the Union is "mob- tainted." 5 This letter does not bear a date. A reference therein to an article in a newspaper dated Sunday, December 3, es- tablishes that the letter was sent after that date. Jones' testimony indicates, and the Company's brief in effect states, that the conference which Krieger's letter attri- butes to "yesterday" was the conference referred to in the first sentence of the preceding paragraph. Jones testi- fied that this conference took place 2 or 3 weeks before the date on which a retroactive wage increase was im- plemented, and the parties stipulated that this implemen- In offering this letter into evidence, the General Counsel stated that he did not admit the truth of these allegations. 5 At the hearing, company counsel offered to prove that in 1977 one Theodore G Daley was convicted of extortion from employers and em- bezzlement of funds; that Daley was the Union's secretary-treasurer for a 15-year period which ended about mid-1978. before the instant union campaign began; that he continues to receive funds from the Union: and that, as of the time of the election, Theodore G. Daley's son "continued" as an officer in the Union. Also, company counsel offered to prove that certain newspaper articles had alleged that Raymond Ebert. the Union's secretary-treasurer during the election campaign, was "close to" a named-convicted murder, a "New Jersey Teamster boss who in turn was close to Anthony Proprensana; and that such newspaper articles had quoted various union officers as warning that "mob infiltration will con- tinue if Ebert retains control of the Union." I hereby adhere to my rejec- tion at the hearing of this offer of proof. The Company made no conten- tion that the newspaper articles in question constituted evidence receis- able to show the truth of the matter asserted; nor did the Company at- tempt to put in probative evidence of such matters, although the General Counsel later called Ebert as a witness. I see no materiality either to the existence of such newspaper articles, to the alleged criminal record of an incumbent union officer's father who was not a union official at the time the union campaign began in the instant case, or to the father's continued receipt of union funds for a purpose unspecified b counsel CHESTE tLe , fiNCt wekilDcm er u atrSaudy 1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tation date was the third week in December. I infer that the conference with counsel was held on a weekday be- tween Monday, December 4, and Thursday, December 7, and that the letter was sent out on a date between De- cember 5 and 8. A letter to the employees from Company President Krieger dated December 22, 1978, states that the Compa- ny had learned "yesterday" that the representation elec- tion would be held on January 16. In the third week of December, all but six of the employees in the unit re- ceived 7-percent wage increases retroactive to Novem- ber 20. One of these six exceptions, Michael Zaccagnino, was the only unit employee paid on a commission basis; he received no increase whatever. The remaining five ex- ceptions received increases from the previous rate of $2.65 an hour to $2.90 an hour. The parties stipulated that the reason for these five increases was that this would bring them up to the new minimum wage which became effective on January 1, 1979.6 In 1977 and 1978, the Company regarded its profits as insufficient to war- rant contributions to the employees' profit-sharing plan, into which the Company had made payments every year between 1969 and 1976. After these increases were announced, and before the election, the Union distributed to the employees a flier which stated, inter alia, that the employees had already reaped many new benefits and privileges "just by the mere fact that Teamsters representatives were hovering close to the gates . . . simply because Teamsters repre- sentatives were on the scene. .... If the Teamsters can achieve better working conditions and increases in wages before a contract, think what it can do for the employees after a contract is concluded." 7 The Company obtained a copy of this flier. 2. Alleged threats by Supervisor Francis Walters The Company admits that Francis (Bucky) Walters, who is the manager of the Company's Monroe facility, is its agent and is a supervisor within the meaning of the Act. During the period material here, four of the seven employees at the Monroe facility were part-time employ- ees,8 at least some of whom were teenaged high school students.9 While making deliveries to the Monroe facility during the preelection campaign, Chester employee Monte told Monroe employees, including full-time gas attendant Christopher Reilly, that the Union might obtain better wages, a dental plan, a pension plan, and paid holidays. Thereafter, in the presence of Monte, Reilly, and full- time Monroe gas attendant Kevin DeClerck, Walters re- marked that if the Union won the election, with all the 6 As to these five employees, a 7-percent increase would have in- creased their hourly rate to about 2.84. 7 The body of this flier, including all the quoted material, is printed and refers to the "Teamsters" rather than Local 445 The heading "Ches- ter Valley Inc. employees" is typewritten. Local 445's name is added at the bottom by means of a rubber stamp. 8 This finding is based on the testimony of full-time Monroe employee Gorden Strobl. I believe he had a better opportunity to observe this matter than seasonal Chester truckdriver Russell Kennybrook, whose es- timate was one or two full-time employees. 9 According to their union cards, all of the part-timers were 16 or 17 years old. expenses it would bring, he might have to cut down some way, and that one way of cutting costs could be to turn it into a self-service station. He made such remarks in Reilly's presence more than once. About the end of November, Monroe Supervisor Wal- ters, full-time Monroe employee Kevin DeClerck, full- time Chester truckdriver Monte, and seasonal Chester truckdriver Kennybrook engaged in a discussion about the Union's advantages and disadvantages. The discus- sion included higher wages and a better hospitalization plan for Monroe employees, without any particular refer- ence to part-time employees. Walters said that Krieger would not keep the part-time employees around if the Union came in. There is no evidence that Walters gave any explanation for this statement. During the preelection campaign, full-time Chester employee Monte expressed the belief to the part-time employees that, if the Union won, it would be able to ne- gotiate paid vacations, paid holidays, and hospitalization benefits for them. While making a delivery to the Monroe facility about late December 1978, Monte told Walters that the Union would be good for the Monroe employees and that they might achieve such benefits. Walters said that the Union would be good for the em- ployees in the main shop in Chester, but that these bene- fits were too expensive for the Monroe gasoline station, that gasoline stations do not give that type of benefits, and that if he had to he would cut corners and turn it into a self-service station. Walters asked whether Monte realized that the Company was accommodating the stu- dents' hourly schedule to their sports activities, and stated that, if the Union came in, Krieger might make it difficult. Walters further stated that the Union might re- quire a physical examination and full-time Monroe me- chanic Strobl, who has cataracts and little vision to the side of his glasses, might have trouble passing such an examination because of poor eyesight. Full-time Monroe gas attendants Kevin DeClerck and Reilly were "in and out" during this conversation. Monte had other conversations with Walters about the Union, whose drift was that the full-time employees could benefit from a union and that part-time employees might get hurt. Full-time Monroe employee Reilly, full- time Monroe employee Kevin DeClerck, or seasonal Chester employee Kennybrook were present during these conversations. After some of the part-time employ- ees told Monte that Walters had been speaking about self-service, Monte told these employees, who performed such tasks as pumping gasoline and changing tires, that Walters had said there was a possibility of self-service if the Union got in. Monte went on to tell them not to worry about it and that Monte did not think it was going to happen. On an undisclosed date before the election, Walters told full-time Monroe mechanic Strobl, and some uniden- 'o My findings in this paragraph are based on Monte's testimony, which was not received to show that Walters in fact spoke to part-time employees about self-service For demeanor reasons, I do not accept part- time employee Jesse Bell's testimony that Monte told him Krieger might turn the station into a self-service station if the operation did not go union. CHESTER VALEY. INC. 1439 tified part-time employees (inferentially, also employed at the Monroe facility) who performed such tasks as pump- ing gasoline and changing tires, that, because of the cost increases which could occur if the Union came in, the Company would have to cut corners somewhere, and that it would be possible that the Company would cut corners by going self-service. Walters did not mention any benefits that the Union would achieve. " Someone said that a lot of unions require set hours in their con- tracts. Walters raised the question of whether, if the Union came in, the Company could "afford" to keep part-timers, "because most unions have set hours, and whether that could-well, more or less that would be whether [the Company] could keep them as steady em- ployees." The Monroe facility has no self-service pumps. On an undisclosed date between late October 1978 and the elec- tion, Walters remarked to then Monroe gas attendant Thomas R. Ingram that self-service pumps might be added to the station. Ingram testified that he did not think such an installation would change the present em- ployees' hours at all, and that he did not feel threatened at all. 3. Alleged promises by Gary Jones a. Alleged conversation with Monte Monte testified that, "probably in November," em- ployee Kennybrook told him that Jones had said that if the Union got in it would take Kennybrook's money out of the Company's profit-sharing plan.'2 Still according to Monte, he told Kennybrook that this was not so. Ac- cording to Monte, about 5 minutes later he saw Jones by the coffeepot and asked his basis for alleging that the Union was going to take Kennybrook's profit sharing, to which Jones replied, "Is that all [he] remembers out of the conversation? Isn't that something?" and walked away. Jones testified about a conversation with Monte sub- stantially similar to the one described by him, except that Jones dated it as in January but before the election. Jones went on to testify that, a few minutes later, Vogt and Monte, in the presence of Kennybrook and perhaps Zaccagnino, asked various questions regarding the union pension plan, and Jones said that he would answer ques- tions individually when he had time but did not want to get into the matter as a group, "I really don't want to get into it now. Can't we just forget this whole idea of the Union right now. It's a lot of [obscenity] basically." Jones went on to testify that Monte asked whether this was a bribe, Vogt said that it looked like one to him, and Jones emphatically denied that this was a bribe. Il This finding is based on Strobl's testimony. which for demeanor rea- sons I regard as more reliable than the pre-trial affidavits which he gave to company counsel. waiters did not testify, nor was his absence ex- plained 12 Monte's testimony about Kennybrook's report was received without objection see American Rubber Producrs Corporation v. N.L. R.., 214 F2d 47, 52 (7th Cir. 1954) Kennybrook testified for the General Counsel and Jones testified for the Company, but neither was asked about this al- leged conversation between them No contention is made that this alleged Jones-Kennybrook conversation constituted an unfair labor practice or invalidated the election Both the General Counsel and counsel for the Compa- ny have analyzed the foregoing testimony by Jones as if it were directed to testimony by Zaccagnino, discussed infra, section II,C,3,b, about an alleged conversation with Jones in the presence of Vogt, Brock, and perhaps Ken- nybrook. Vogt and Kennybrook testified for the General Counsel, but were not asked about either incident. Not- withstanding counsel's treatment of the matter, Jones' testimony is so much closer to the incident as described by Monte than to the different incident as described by Zaccagnino that I conclude Jones was directing his testi- mony to the former rather than the latter. I discredit Jones' account of what was said except to the extent that he is corroborated by Monte. Jones' uncorroborated tes- timony regarding the "bribe" remarks makes little sense in the context as described by him, and his demeanor was generally unimpressive. Particularly because the General Counsel makes no contention that an unfair labor practice was committed during the incident de- scribed by Monte, I give little weight to the absence of corroboration of his testimony in this connection. b. Alleged conversation with Zaccagnino bogt. Brock. and Kennybrook Employee Zaccagnino testified that, during a morning coffeebreak in November 1978, Jones asked an employee group, consisting of Zaccagnino, Vogt, Brock, and per- haps Kennybrook, what it would take for them to forget about the Union. Still according to Zaccagnino, he and Vogt replied that they did not want to talk about what it would take to keep the Union out and that things had gone too far for just a simple raise or something like that. For the reasons stated in the immediately preceding section II,C,3,a, I believe Zaccagnino's testimony in this respect to be undenied. 3 In any event, he impressed me as an honest witness, and I credit such testimony. c. Conversation with Monte In January before the election, during a conversation about the Union and how things in the shop could be different, Jones asked employee Monte what it would take for him to forget about the Union. Monte replied, "Everything the Union has achieved in other contracts plus a guaranteed job." At this point, Jones walked away. The General Counsel does not appear to contend that these remarks by Jones constituted an unfair labor practice by the Company. d. Conversation with Zaccagnino regarding profit- sharing In early December, during a conference with Jones and Krieger, Company Attorney Thomas W. Budd brought up the question of what the employees were looking for in a union. Jones said that the union pension was "beautiful," and that the Company's profit-sharing plan could not "compete" with it. According to Jones' uncontradicted and uncorroborated testimony, he further said that this matter had been mentioned to him by Zac- "J lones testified that he had a number of conversations with employ- ees about union benefits viT-a-vis company benefits CHESTER VALLEY. INC. 31? 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cagnino, 4 for whom Jones served as personal account- ant, and that Zaccagnino was 35 or 36 years old. Still ac- cording to the uncontradicted and uncorroborated testi- mony of Jones, who is an accountant and the Company's controller, he was told by Budd that a profit-sharing plan was bound to yield a man of that age a greater return on investment than $400 a month, and that Jones should satisfy himself of this by getting some schedules and performing some calculations. In early January, Zaccagnino, who is paid on a com- mission basis, asked Jones to find out what Zaccagnino's 1978 earnings had been. Thereafter, Jones asked Zaccag- nino to come to his office to look at some figures. Think- ing that Jones intended to answer Zaccagnino's inquiry, he went up to Jones' office. Jones showed Zaccagnino what Jones said were some papers from the Union about its pension plan. These papers set forth various unrepaid loans which had already been made from the union pen- sion plan. Jones said that it was a "very shaky" plan; that the employees could work the full time and never collect a penny from it; and that, in order to give the employees the vested rights promised by the Union, the employees "would get all [their] seniority days in the Union with their retirement. Jones said that "in order for them to do that they would take [the employees'] profit sharing away" and attributed to the Union the desire to negotiate into its own plan the moneys which the Company had in the profit-sharing plan. Jones said that, if Zaccagnino would talk to Krieger, he could work out a deal where Zaccagnino could get in this profit-sharing plan the same money, 40 cents an hour, that the Union wanted as a contribution into its pension plan. Also, Jones showed Zaccagnino what Jones said were a Teamster contract with a local company and papers showing the salaries, which Zaccagnino believed to be high, of various union officials. Zaccagnino said that he could not believe that the papers shown him by Jones were authentic papers. At the end of this conversation, Zaccagnino again asked what his 1978 earnings had been, and Jones told him. A few days later, during an afternoon coffeebreak, Jones remarked to Zaccagnino in Monte's presence that Zaccagnino should give Jones' proposal serious thought, and that Zaccagnino would be "way ahead" with contri- butions of 40 cents an hour into the profit-sharing plan. 5 Jones also mentioned the 40-cent figure to Zaccagnino on other occasions. As previously noted because of what the Company regarded as low profits it had made no payments into this plan for 2 years. My findings as to the conversation in Jones' office are based on Zaccagino's testimony. He impressed me as a more honest witness than Jones. Moreover, Zaccagnino's version of the conversation is indirectly corroborated by Monte's and Zaccagnino's uncontradicted testimony re- garding Jones' subsequent reminders of his proposed ar- rangement with Zaccagnino for profit-sharing contribu- tions, by Jones' testimony that he had in his possession various reports filed by the Union with the United States 14 For demeanor reasons and other reasons discussed infra, I credit Zaccagnino's testimony that no such conversation had ever occurred, and discredit Jones' testimony otherwise. is My findings in this sentence are based on the uncontradicted and mutually corroborative testimony of Zaccagnino and Monte. Department of Labor, and by the fact that Krieger's De- cember 22 letter to the employees asserted that the Union had a "phantom pension" and its officers received "big salaries." I do not credit Jones' testimony that this Jones-Zaccagnino conversation dealt with a comparison by Jones between Zaccagnino's benefits under a union pension plan and the Company's profit-sharing plan. Jones testified that he based this comparison on an un- derstanding he received from Zaccagnino that the Union's pension plan called for payments between the ages of 65 and 75 but none thereafter, and "I had no other knowledge of anything else." Such a 10-year limi- tation on a pension is so unlikely that I regard as inher- ently improbable Jones' testimony that he accepted and Zaccagnino believed in its existence. Moreover, Jones admitted having seen at least one contract between the Union and another firm, and, at least as to freight divi- sion employees like those employed by the Company, all the Union's contracts provide that any employee who re- tires with a pension to which he is entitled receives such a pension for the rest of his life.'6 Furthermore, Jones testified that during this conversation he presented Zac- cagnino with a document which appears on its face to include figures purportedly showing contributions made on Zaccagnino's behalf into the profit-sharing plan for 10 years, and which Jones testimonially described as setting forth such contributions after 10 years. Far from testify- ing that Zaccagnino questioned the accuracy of the 10- year figure, Jones testified that Zaccagnino said the amount credited to him was "a ridiculous figure for 10 years in a plan." However, the plan had been in exist- ence for only 9 years, and contributions thereto had been made for only 7 years. For these and demeanor reasons, I discredit Jones' account of this conversation, including his testimony that during this conversation he showed certain documents to Zaccagnino, and credit Zaccag- nino's denial that during the conversation Jones showed him a compound interest table. D. Company President Krieger's December 22 Letter By letter dated December 22, 1978, and distributed to all the employees, Company President Krieger stated, inter alia: . . .If the union gets in here wages and other benefits are subject to negotiation. They can go up or down. There are other benefits that we provide that you should not forget about. These too would all become negotiable if the union gets in. They might bargain these rights away for something else more favorable to them. One of these benefits I refer to is the great flexibility we permit you in your work hours. Many employees have other jobs, business, school activities and family obligations which re- quire constant adjustment of hours. We have done our best to accommodate everyone, which is much easier than pulling out a union contract and search- 15 In addition, the retiree's surviving spouse may also be entitled to a lifetime pension. The record fails to show whether Zaccagnino was mar- ried. CHESTER VALLEY, INC. 1441 ing through it to see if you're allowed time off for your other job or to play on a sports team. Other specialized benefits you enjoy are a dis- count on gasoline and repair work, uniforms and liberal break times. These benefit you and not the union. Think twice before you bring in people that may force me to discontinue these favors. E. The Speech by Krieger About a week before the election, the Company shut down all three of its facilities in order to enable all the employees to hear a speech given by Company President Krieger at the main facility in Chester Valley." Also present were Controller Jones and all the managers, in- cluding Walters, from the stores. The Company set up chairs in one of the car bays for all the employees. Krieger said that the Union could put him out of busi- ness because it had done it to other businesses. ' He said that he was able to keep the employees on because he was not paying union wages, and, if the Union got in, he might not keep the employees on. He said that the Union could force him out of business because, if he was forced to pay high wages to his men, he could not remain com- petitive.' 9 He further said that, if the Union got in and there was a strike, he would replace all the employees. 20 The complaint does not allege that any remarks de- scribed in this paragraph constitute unfair labor prac- tices. Krieger told the employees that he was upset and hurt by the fact that the employees had gone to the Union and not to him. Krieger stated that he had heard that several people had attempted to come to him about a wage increase "and never got there." 2' He asked why the employees had not approached him about the work here and that maybe something could have been worked out. 22 He further said that he would rather deal directly with the men than deal with the Union. Krieger said that he had always had an "open door" policy, that he would continue to have such a policy, and that if the men came to him in the future he would deal with them about "a difference that the employee has with money" and other differences and problems.2 However, Krieger said, if the Union came in, they would no longer be able to do 17 The Chester facility is 8 miles from the Monroe facility and 12 miles from the Vails facility. 8' This finding is based on the uncontradicted testimony of General Counsel's witness Vogt. '1 This finding is based on the uncontradicted testimony of General Counsel's witness Zaccagnino. On the other hand. Krieger's December 22 letter to the employees had stated that their wages were higher than those paid by a Chester company "like ours" whose employees were rep- resented by Local 445. '0 This finding is based on the uncontradicted testimony of General Counsel's witness Monte. 21 This finding is based on the uncontradicted testimony of company witness Jones. 22 This finding is based on the uncontradicted testimony of company witness Scandurra. 23 My findings in these two sentences are based on a composite of credible portions of the testimony of company witnesses Paul Spina. Roger Williams, and Edward Schaffer Witnesses for both the Company and the General Counsel corroborated their testimony about Krieger's "open door" statement this.2 4 Krieger also said that whatever the employees could get from the Union they could get from him.25 There is no evidence that the Company had ever advised employees that Krieger had an "open door" policy, and several employees credibly testified that this was the first time they had been so advised. Schaffer, an employee for 7 years, credibly testified that from time to time he had talked to Krieger about personal and business problems. Williams, an employee for 5 years, credibly testified that on several occasions he or a number of others had gone into Krieger's office and talked about matters whose nature he did not specify. Donald Decker, an employee for 12 years, credibly testified that on several previous occasions, the most recent being about 2-1/2 years before this speech, he had talked with Krieger regarding wages, hours, and working conditions. Monte, an employee for 9 years, testified that "the door has always been open. Whether we achieved anything was another story. We could always go up and see Mr. Krieger"; I am satisfied that this testimony reflects Monte's honest opinion. Truckdriver Kennybrook, an employee for 14 years, cre- dibly testified that on a date which he did not specify, when he and other employees went up to talk to Krieger about problems relating to night calls, Krieger said, "This is the way it is and if you don't like it you can leave." On an undisclosed date before Krieger's speech, infer- entially after Vails Gate employee Steven Gione's Octo- ber 26 execution of a union card at Monte's behest, Monte asked him whether he was still for the Union. Gione replied that he never was, and that, if the employ- ees got together and picked a few employees to talk to Krieger, ". . . we should be able to achieve anything that the Union could do for us but we could do it with- out the Union." Monte replied that other employees had tried this on a date which he did not specify, and they had been fired. Gione testified that he discussed with other employees, including Williams, the idea of an em- ployee delegation. Vails Gate employee Williams testi- fied, without contradiction and (laying to one side the foregoing testimony by Gione) without corroboration, that, about late December, he and the other Vails Gate employees (Gione, Richard Brumfield, and Frederick Ries) decided that they "could probably try to do better 2' This finding is based on the uncontradicted testimony of (eneral Counsel's witness Vogt. at This finding is based on Zaccagnino's testimony on cross-examina- tion. I reject as inherently improbanle Zaccagnino's testimony on direct examination that Krieger said by seeing him the employees could get from him anything the Union promised, Vogt's testimony that Kneger said by seeing him the employees could get anything they wanted with- out the Union. and Monte's testimony on cross-examination that Krieger said by seeing him the employees could achieve on their own just about anything the Union is offering For demeanor reasons and because of Monte's different version on cross-examination I do not credit Monte's testimony on direct examination that Krieger said that by coming to him the employees would achieve most or all of the things the nion was achieving in its own contracts. For demeanor reasons and in view of the context of Krieger's remarks. I do not accept the testimony of employee Winfield Turk. a company witness, that Krieger did not say that in the future employees could just come to him and he would give them what- ever the Union would give them. or that he did say that a lot of things that the Union had promised the employees he could not match or could not go along with anlyhos, whether the employee, had the Union or not CHESTER VALLEY, INC. 41 1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if [they] didn't have a union than [they] would if [they] had it. 2 e Gione testified that the employees never decid- ed to go up and talk to Krieger. Ries testified that he never met with Krieger after the October 26 union meet- ing where Ries obtained his union card. Gione testified that there was no group which was going up to talk to Krieger, and that the employees never reached a deci- sion to talk to Krieger. Williams testified that, after Krieger's speech, Williams, Ries, Brumfield, and perhaps Gione decided to talk to Krieger about a possible "better plan on trying to get more money and more benefits." Still according to Williams, ". . . then we backed off be- cause we had to wait until after the vote." Williams went on to testify that these three or four employees met with Krieger about a week before the election to tell him that they had never wanted the Union, and that Krieger thereupon smiled "a little bit." Williams further testified that the four Vails Gate employees did not definitely decide against the Union until just before the election. Brumfield, who testified for the Company, was not asked about the alleged meeting with Krieger. All four of these employees had signed union cards in late October. Gione, Williams, and Ries all testified that they did not meet with Krieger after the election. Brumfield was not asked about this matter. On the basis of the foregoing, I infer that the follow- ing events occurred: About late December, before Krieger's speech, the four Vails Gate employees dis- cussed among themselves whether they could obtain better benefits with a union or without one, and tenta- tively decided that they could do better without one. After Krieger's speech, Williams and Brumfield decided to talk directly to Krieger about higher wages and better benefits. They did talk to Krieger before the election, and during this conversation told him that they opposed the Union. For demeanor reasons and in view of the probabilities of the situation, I do not credit Williams' testimony, in effect, that the employees' opposition to the Union was the sole subject of their preelection conversa- tion with Krieger, but the record fails to show what else was discussed. There is no evidence that any of these four talked with Krieger after the election about wages and benefits. As previously found, about late December supervisor Walters had told employee Monte, perhaps in the pres- ence of one or two other employees, that the Union might require a physical examination. The Union held its second meeting in late November and a third meeting in early January. Employee Adolph Wright testified that during one of these two meetings, both of which he dated as before Krieger's talk, an employee whose identi- ty he could not recall asked if drivers had to take physi- cals, and the union representative said no. 2 7 During Krieger's speech, he said that the employees would be n2 All four of these employees testified on the Company's behalf. Brumfield and Ries were not asked about this alleged decision. 27 Wright's testimony that a question about physical examinations was asked in a union meeting before Krieger's speech is not inconsistent with the testimony of Williams. Williams testified that no such questions were asked during the meetings he attended, but he could not recall whether the meetings he attended included the third meeting (which he attached to the day of Krieger's speech) or the second meeting Williams did attend the first meeting doing wrong by themselves by voting for the Union. Krieger also said that the Union may in its contract re- quire the employees to take physical examinations. x2 Krieger went on to say that he was sure some employees would not be able to pass the physical examinations, by reason of poor eyesight or other defects, 2 and that at other businesses people have lost their jobs because of physical disability. At that time, the Company adhered to the legal requirements of physical examinations for drivers, but did not require physical examinations for any other employees. Among the employees present at the meeting were truckdriver Spina, who has an artificial eye, and mechanic Strobl, a slightly deaf, 56-year-old mechanic with cataracts, who has difficulty looking out the side of his glasses and can see only shadows without them.30 Both of them had signed union cards in late Oc- tober. Union Secretary-Treasurer Ebert credibly testified that the Union never asks an employer for an agreement that employees must pass physical examinations to get or keep their jobs; that, with exceptions not material here, the Union is party to few or no contracts which require physical examinations for persons other than those for whom Federal law requires such examinations; that any such provisions would have been initially the Employer's and not the Union's idea; and that he did not think that union contracts which require employees to live up to Federal regulations refer to physical examinations. Krieger did not explain in his speech where he got the notion that the Union required physical examinations. : " Krieger did not testify, and the record fails to show his basis, if any, for his statements about the Union's position regarding physical examinations. F. The Union 's Alleged Majority 1. The operative effect of the cards The General Counsel offered into evidence 31 cards which read as follows: LOCAI. 445 I.B.T. International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America 2a This finding is based on Williams' estimony, hich I regard as more probable than the testimony of other witnesses to the effect that in an unexplained manner the Union might or would require physical exami- nations For demeanor reasons, I do not accept Controller Jones' wholly uncorroborated testimony that Krieger said he did not know whether the Union requires physical examination, and he employees should inmvesli- gate the matter. 29 My finding that eyesight was mentioned is based on the testimony of Zaccagnino and Monte. For demeanor reasons. I do nt credit the de- nials of Williams and Jones. io Company counsel stated lti the record that, during the speech, Krieger brought up the subject of physical examinations. At the time of the hearing, both Spina and Strobl ere still in the Company's employ. For demeanor reasons, I believe that, when they testified that they did not hear Krieger mention physical examinatfions, they cwere not giving their real recollection of what happened. Rather, I believe that they had heard and still remembered what Kriegrr aid about this subject. See N.L.R.B. v. Walton Manufacturing Company & Logaunville Pants Co.. 369 U.S. 404, 408 (1962), relying on Dyer v. McDougall, 201 F2d 265, 269 (2d Cir. 1953) (per L. Hand, C. J) "l This finding is based on the uncontradicted teslimony of General Counsel's witness Monte. CHFSTER VALLFY, NC. 1443 P.O. Box 2097, Newburgh, New York 12550 (914) 564-5297 I hereby request and accept membership in the above named union and authorize it to represent me, and in my behalf to negotiate and conclude all agreements as to hours of labor, wages and all other conditions of employment. This authorization shall supersede any such previ- ous authorization whatsoever given to any person or organization and shall remain in full force and effect for one year from the date hereof and the same shall be extended from year to year unless re- voked by a notice in writing to Local Union 445, which notice must be received by said Local Union within 30 days prior to the anniversary date hereof. The Company does not appear to question, and I find, that on their face the cards unambiguously designated the Union as the signers' collective-bargaining repre- sentative. 3 2 Nor does the Company now question that the employees signed these cards on about the dates they bear.3 3 The Company does not appear to challenge on any ground the operative effect of Miller's card, which will be counted. The Company challenges the operative effect of 14 cards3 4 on the sole ground that they were signed after an October 25 meeting, discussed infra, during which misrepresentations about the cards were al- legedly made. Because there is no evidence that these 14 employees attended that meeting or were told about any statements there made about the cards, their cards have operative effect regardless of what was said there. About 11 employees3 5 signed their cards during or after attending this Wednesday, October 25, meeting. 3 6 32 The cards are so designed that they can be folded, stapled, and then mailed prepaid to the Union. The words quoted above are above the fold line, the space for signatures is below the fold line and on the reverse side of the portion of the card containing the Union's address Employee Wright took the entire document home, where his wife read him the card and he then signed it. He testified at the hearing that, when he signed the card, the quoted language was on it so far as he knew On the following day, when Monte asked him where the card was, he said that he had brought it back with the top missing because he thought he had to take off the top to mail it At this time, Wright gase the card to Monte I conclude that the effect to be giver, Wright's card is not diminished by the fact that part of it was torn off Indeed, the Company's brief does not suggest otherwise 33 At the hearing. the Company objected on authenticity grounds to some cards which were not signed by or in the presence of the authenti- cating witness, hut were given to him by the Individuals whose purported signatures appeared on the cards. The Company's brief does not chal- lenge the authenticity of these cards. See McEwen ManuJacturing Compa- ny and Washington Industries, Inc., 172 NLRB 990, 992 (1968). sub nom Amalgamated Clothing Workers of America. AL-CIO. enfd 419 F.2d 1207 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970) "4 Brock. Conklin. D DeClerck. K DeClerck, Diaz. Hulse, Kearney, Kennybrook, Moore, Scandurra, Spencer, Vogt, 'Weyant. and Zaccag- nino. 13 Brumfield. Kolk, Monte, Reilly, Ries, Schaffer. Spina, Turk. Wil- liams, and perhaps Strobl and Wright However. Monte's widespread ac- tis-ity on the Union's behalf began several days before this meeting. 36 My finding as to the date Is based on Monle's testimony that the meeting tiook place on October 25 or 2; Union Secretary- Ireasurer Ray- mond Ebert's testimony that the meeting could have taken place on Wednesday of that week: and the testimony of employees Kolk, Schaffer, and Ries, in connection with the date on thilr respccii e-ards. Houses- Most of the talking by union representatives at this meet- ing was done by Secretary-Treasurer Ebert. He told the employees the makeup and composition of the Union's parent International, the makeup of the Union, the types of employers whose employees it generally represented, and what generally goes into a collective-bargaining agreement. He told the employees that the National Labor Relations Act protected their right to attend the meeting and to discuss union activities on their Employ- er's premises, that they could not be fired for wanting a union or signing an authorization card, and that the law prevented the Employer from doing something bad to an employee because he wanted a union.3 7 Ebert further stated that, because union membership is protected under the Act, if he joined a union he would make sure that his Employer knew about it and that such knowledge could be proved, a " Ebert also said that the cards were to advise the Union how many employees were interested in it; to enable the signers to receive information about the Union through the mails; to show the Company that the Union represented the majority of the employees; and, if necessary, to file a petition with the Board for an election.3 9 Ebert further stated that once signed cards were handed in and the Union felt there was enough in- terest, then the Union would send the Company a tele- gram or letter claiming a majority and asking for bar- gaining negotiations. He went on to say that, if the Com- pany did not accept the Union's cards and negotiate, cr, the testimon oif Reilly. and perhaps Williams, in light of their union cards suggests a date earlier than October 25 Because only Miller's card is dated before October 25, and there is no evidence that he attended the meeting or learned what was said there, whether it occurred on October 25 or earlier is immaterial to any party's view of the case Some of Wright's tesfinmon in light of the date on his union card suggests a meet- ing date after Oclober 26 In evaluatilg Ethert's testimony about what was said at the meeting. I have taken account of his tailoring of some of his testimony t accommo- date his almost certainly inaccurate testimony, which may well have been true as of the second union meeting, as to representations made to hinm before the first meeting regarding the Union's card support .T My findings in this sentence are based on a composite of credited portions of the testimony of Union Secretary-Treasurer Ebert and em ployees Brumfield. Monte Ries, and Schaffer. 3s This finding is based on Ebert's testimony. I believe that the follov- ing employee testimony consists of inferences by the witness from this statement and its context. rather than what was said in terms Ries' testi- mony that Ebert said signing cards would protect them against reprisals from the Company if it found out about the Union: Schaffer's testimony that the card as for protection in case the boss found out we were meeting The Union would back us up in case he fired us or anything like that": and Wright's testimony that Ebert said the card was "for the secu- rity of the job. . It's just security of the job. So, when you tell Mr. Krieger that the Union is coming in. you won't get fired." Monte credi- bly delied that anyone said at the meeting that if you fill out the card the boss cannot fire you because you were at the meeting. aa My findings in this sentence are based on a composite of credible parts of the testimony of Ebert and employees Brumfield, Kolk Rles. and Turk. Except to the extent consistent with my findings in the text, for demeanor reasons I do not accept Williams' testimony that Ehert said the cards were to gi-c the employees permission to hold a orte, if they waned lte.ll to see whether the Union would represent the employees Also fr demeanor reasons. I accept company itnes, Kolk's testimony about what as said at the meeting not ithtanding his prehearing state- ment to company counsel that Ebert said. " . we need the majority of the -irds it, pro. ide ils with informatilon about the Unii,,n " CHESTER VALLEY. NC. '44 1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then the Union would go to to the Board for a vote. 40 Ebert said that one of the purposes of a union is to nego- tiate a contract with the employer. He further said that the employees would not achieve any benefits until the Union sat down to negotiate, that the Union could only negotiate, that it could not guarantee anything, that what they got would ultimately be up to the Company, but that such a contract might include wage increases and a provision forbidding discharge without just cause.4 1 The subject of physical examinations was not brought up at the meeting.4 2 During the meeting, one of the union rep- resentatives passed out blank authorization cards, and such cards were passed around among the employees.43 Also, a pile of blank cards were on Ebert's desk. At least one employee helped himself to a card during the meet- ing, and after the meeting had ended, Monte took a number to distribute to others.4 4 Employee Turk testified that, after the meeting, an- other employee asked Ebert whether "you could be fired if you didn't sign the card, if Charlie [Krieger] had found about it," whereupon Ebert replied ". . . you could be fired until the card was sent to the Labor Board." In view of the probabilities of the situation and after consid- ering the witnesses' demeanor, as to this testimony by Turk, I accept Ebert's denial of any conversations about the cards immediately after this meeting. The credited testimony regarding Ebert's October 25 statements discloses nothing which would render inoper- ative any cards signed in reliance thereon. See, generally, N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 584, 604-609 (1969); Jefferson National Bank, 240 NLRB 1057, 1075-80 (1979). Accordingly, at this point I count the 10 cards whose operative effect is challenged on the sole ground of such statements.45 The Company also challenges the cards of full-time employees Gione, Spina, and Strobl. About October 16, employee Monte asked all the full-time employees 40 My findings in these two sentences are based on employee Monte's testimony, partly corroborated by Ebert and employees Brumfield, Schaffer, Williams, and Wright. " My findings in this sentence are based on a composite of credible portions of the testimony of employees Brumfield, Monte, Schaffer, Wil- liams, and (as to the "just cause" matter) Wright. Cf. supra, fn. 38. 42 This finding is based on the testimony of Ebert, corroborated by employee Williams (see supra, fn. 27). For demeanor reasons, I do not accept Strobl's testimony that Monte asked whether there would be a "physical examination requiring bad eyes," or Monte's testimony that some employees asked about physical examination because "some people look at it as a benefit, I guess," to which Ebert replied that the Union does not require physical examinations, which are contractually required only if an employer wants them. 43 These findings are based on the testimony of employees Brumfield, Kolk, Ries, and Turk. For demeanor reasons and in view of the probabil- ities of the situation, I do not credit Monte's or Ebert's denials. 44 These findings are based on credible portions of Schaffer's and Monte's testimony. For demeanor reasons, I do not accept Ebert's denial. 45 Brumfield, Kolk, Leiter, Monte, Reilly, Ries, Schaffer, Turk, Wil- liams, and Wright. The operative effect of Brumfield's and Williams' cards is not negated by their subsequent expressions of irritation at the Union's action in filing a petition with the Board. Cf. Gissel, supra, 395 U.S. at 584, 605-609. There is no evidence that either of them tried to get his card back. Nor is the operative effect of Williams' card negated by the fact that, before he signed it at Monte's behest, Williams asked Monte if Williams could be fired, and Monte replied that "just because we signed the card, we cannot be fired." I interpret Monte's statement in context as an assurance that Williams could not be fired because of sign- ing a card. whether they were interested in the Union and all of them said they were. Also, he repeatedly expressed to Spina and others the view that the employees needed a union. Monte testified that, after obtaining blank union cards, he returned to all these employees and told them that this was the card that would get the Union to repre- sent the employees, they should fill out the cards, the Union would represent employees, and the cards would be presented to the Board, "showing interest." I accept this testimony as to Strobl and Spina. When approaching employee Strobl about October 26, Monte also asked Strobl (according to his credited testimony) if he would "like to sign it and hear what the Union has to say . . . if we were interested, and I did say that I was interested, I'd like to hear it," 4 6 Strobl signed the card and returned it to Monte. About the same date, Monte said during a conversation in Spina's presence that he thought the men needed the Union, that the Union would try to represent the employees and negotiate with the Company, and that with the Union, maybe the employees could get better wages. Then, Monte gave Spina a card, and told him to fill it out and give it back to Monte 47 Spina took the card home, discussed it with his wife, and signed it. Then, he gave it to Monte, who picked it up at Spina's house because he was out sick. When Brumfield and Williams returned from the Octo- ber 25 meeting, they told Gione, who had been unable to attend, that they had brought back a card for him, that he was supposed to fill it out, and that it was in Brum- field's car. Gione left the shop and went out to get the card, but could not find it. When Gione returned, Brum- field or Williams (probably Williams) gave Gione a blank card.48 Williams told Gione that, if he signed the card, it would give the Union permission to look into the possi- bility of finding a way to give the employees better wages and benefits. 49 Gione did not sign the card imme- diately. He read the card before signing it, and returned it to Monte. Gione never sent the Union a letter request- ing its return. Gione never attended any union meetings. On an undisclosed date before early January 1979, Monte asked Gione whether he was still for the Union. Gione replied that he never was. I see nothing in the foregoing evidence which would impugn the operative effect of the cards signed by 46 Strobl further testified that Monte said "there'd have to be a vote." For demeanor reasons, I credit this testimony only to the extent that it is corroborated by the testimony of Monte, quoted in the text, about pre- senting the cards to the Board "showing interest." 47 On cross-examination, this is the only remark Spina could recall that Monte made when handing him the card. For this reason, because Spina could not recall whether he attended a union meeting before or after he signed his card, and for demeanor reasons, I do not credit his testimony on direct examination that Monte said the purpose of the card was to have a meeting with the Union, "there were absolutely no strings at- tached and it would only mean that we could come to the first meeting." Spina's card is dated October 27, 2 days after the first union meeting. *4 I think that Monte was mistaken in testifying that he gave a card to Gione and he executed it in Monte's presence. 49 This finding is based on Williams' testimony on cross-examination For demeanor reasons, I regard this as more reliable than his testimony on direct examination, or Gione's version that he was told it was a card to be filled out for information to go to another meeting-which he did not attend. CHESTER VALLEY, INC. 1445 Gione, Spina, and Strobl. Their cards will be counted. See, generally, Gissel. supra, 395 U.S. at 584, 605-609. The Company challenges the cards of part-time em- ployees Rudden, Ingram, and Bell. Monte credibly testi- fied that, after learning that part-time employees would be added to the Excelsior list (156 NLRB 1236 (1966)) to be used at the representation election, he told the part- time employees that they were eligible to vote and asked them if they were interested in the Union. Still according to Monte's credible testimony, they said yes, and he gave them the cards to fill out to show that they were inter- ested in the Union. Rudden credibly testified that, before giving him the card which he signed, Monte said that it would bring benefits and wages, Rudden further credibly testified that he read the card before he signed it.50 Ingram credibly testified that, when giving Ingram a card, Monte said that "they were trying to get a union and that there would be a vote on the Union to see if it would pass," and that Ingram signed the card immediately. Ingram's and Rudden's cards will be counted. See, generally, Gissel, supra, 395 U.S. at 584, 605-609. When giving a card to employee Jesse Bell, Monte told him that the card would show Company President Krieger that there was interest in a union that everybody else had signed, and that Bell was the last one to sign.5 I In fact, as of that date 28 or 29 of the 32 employees in the unit had signed cards. s5 2 Bell credibly testified, "I fig- ured that everybody else signed it so it couldn't have been too bad" and that he signed it a few minutes later without "really" reading it. After Bell signed his card, Monte told him that the Union could get him better benefits. Bell never attended any union meetings. His card will be counted on the basis of J. P. Stevens & Co.. Inc., 244 NLRB No. 82 (1979) (John Henry Carr).5 3 In short, I accord operative effect to all of the 31 cards offered into evidence. 2. The number of card signers in the unit on various dates The parties stipulated that at all times between Octo- ber 28, 1978, and January 16, 1979, 30-named employees, 'o Rudden also testified that Monte said that the card would be (I) like a register to vote, and (2) for the Union to recognize Rudden. As to the first remark, I credit Monte's denial I also reject, as confused, Rudden's testimony as to the second remark. 51 Bell testified that Monte said "it was like a card to enable us to vote for the Union-register us." For demeanor reasons, I accept Monte's de- nials. 52 The nonsigners consisted of dispatcher Myrtle Edwards, whom Monte believed to be "office help" excluded from the unit, Bell, and Decker Scandurra, a seasonal employee who returned to work about November 15, signed the same day that Bell signed. The record fails to show which signed first. i3 Compare, W. B. Johnson Properties Inc., d/b/a Olympic Villas, 241 NLRB 358 (1979) (Shirley Smith); ,V.L.R.B. v. Roney Plaza partments, 597 F.2d 1046, 1051, 1054 (5th Cir. 1979), relying on, inter alia, The Schwarzenbach-Huber Company v. N.L.R.B., 408 F2d 236, 241 (2d Cir. 1969), union's petition for cert denied 396 U.S. 960 (1969). Although the instant case arises in the Second Circuit, subsequent judicial review (if any) may perhaps be in another circuit; see Sec 10(e) and (f) of the Act; J. P Stevens & Co.. Inc. v .VL.R.B., 63 LRRM 2449 (4th Cir. 1966). In any event, see Ford Motor Company (Chicago Stamping Plant)., 230 NLRB 716, 717-718, including fn 12 (1977), enfd 571 F 2d 993 (7th Cir. 1978), affd. 99 SCt. 1842 (1979) listed infra Appendix A, were included in the appropri- ate unit. Between October 28 and November , inclusive, the unit consisted of 31 employees,5 4 of whom at least 1955 had signed cards. Between November 2 and 8, in- clusive, the unit consisted of the 30 employees named in Appendix A, of whom 2156 had signed such cards. Be- tween November 9 and about November 15, inclusive, the unit consisted of the 30 employees named in Appen- dix A, plus Kearney, of whom at least 2157 had signed such cards. Between about November 16 and November 19, inclusive, the unit consisted of the 30 employees named in Appendix A, plus Kearney and Scandurra, of whom at least 2258 had signed such cards. On November 20, the unit consisted of the 30 employees listed in Ap- pendix A, plus Kearney and Scandurra, of whom 275" had signed such cards. Between November 21 and 26, in- clusive, the unit remained unchanged, and 29 had signed cards. °0 Thereafter, and until January 16, 1979, the unit consisted of the 30 employees listed in Appendix A, plus Kearney, Scandurra, and Fevier, of whom 29 had signed cards. I In short, at all times between October 28, 1978, and January 16, 1979, a majority of the employees in the unit had signed operative union cards. G. Analysis and Conclusions With Respect to the Unfair Labor Practice Case 1. The alleged independent violations of Section 8(a)(1) a. The alleged threats of reprisal and promises of benefit (1) The alleged promises made through Controller Jones As previously found, in late October or early Novem- ber 1978, when Company Controller Gary Jones' inquir- ies of employee Vogt disclosed that most of the employ- ees had signed union cards, Jones asked why the employ- ees wanted the Union, and what it would take to keep the Union out, "More benefits, wages or whatever." Similarly, in November 1978 Jones asked a group con- sisting of Vogt, Zaccagnino, and one or two other em- ployees what it would take for them to forget about the 54 Namely, those listed in Appendix A, infra, plus Christopher Spen- cer 55 Brock, K DeClerck. Gione, Kolk, Leiter. Miller, Monte, Reilly. Ries, Schaffer, Spencer. Spina. Strobl. Turk, Vogt, Weyant, Williams, Wright, and Zaccagnino. Also, Brumfield and Kennybrook signed on Oc- tober 30, and Conklin's card is dated "October 1978." "6 That is, all those named supra fn 55, except Spencer, who left Re- spondent's employ on November 10. 5' That is, all those named supra fn. 55., except Spencer Also. Moore signed on November 10. 5s That is, all those named supra at fns. 55 and 57, except Spencer Also D DeClerck signed on November 14, Hulse signed on November 17, Ingram and Rudden signed on November 18, and Diaz signed on No- vember 19. 59 That is, Kearney and all those named supra at fns. 55, 57, and 58 except Spencer 60 That is, Bell, Scandurra, and all those named supra at fns. 55, 57, and 58 except Spencer e' That is. those listed supra at fns 55, 57, 58, 59, and 60, except Spen- cer CHESTER VALLEY, INC. - - - 1446 DE)CISIONS OF NATIONAL. LABOR REI.ATIONS BOARD Union. Also, in early January, Jones made some depre- cating remarks to employee Zaccagnino about the Union's pension plan and then said that, if Zaccagnino would talk to Company President Krieger, he could work out a deal where Zaccagnino could get in his com- pany-maintained profit-sharing plan the same money that the Union wanted. Similarly, a few days later, Jones re- marked to Zaccagnino, in the presence of employee Monte, that Zaccagnino should give Jones' proposal seri- ous thought, and that Zaccagnino would be "way ahead" if the payments which the Union wanted for the union pension plan were made into the company-main- tained profit-sharing plan, to which no contributions had been made for 2 years. I agree with the General Counsel that when Jones thus impliedly or in terms promised benefits to employ- ees in order to induce them to abandon the Union, the Company violated Section 8(a)(1) of the Act. See Federal Paper Box Company, Inc., Inc., 206 NLRB 681, 682-683 (1973). 1 find no merit to the Company's contention that it is not answerable for such remarks. Aside from the paragraph alleging (inter alia) that Jones was an agent of the Company, the complaint names Jones only in con- nection with the allegation that the Company, "acting through" Jones, violated Section 8(a)(1) by making promises of benefits. Under these circumstances, I con- strue the Company's admission in its answer, of the alle- gation that Jones was its agent, as constituting an admis- sion that he was its agent for the purposes of making the promises described in the complaint. Moreover, Jones participated in a conference with Attorney Budd and Company President Krieger, inferentially for a purpose of planning an antiunion preelection campaign, during which Budd brought up the very question which Jones brought up to the employees-namely, why the employ- ees wanted a union-and gave Jones advice, which he al- legedly followed, about how to convince Zaccagnino that the Company's profit-sharing plan was better than the Union's pension plan. Further indication that the Company is answerable for Jones' promises of financial benefit to the employees is provided by his title of "con- troller" or "comptroller"; by the fact that his duties in- clude the maintenance of the Company's payroll records and general ledger, as well as the Company's accounting records and account payable records; and by the fact that employees who have problems with overtime, sick days, and vacation days consult with him. Additional evidence that the Company is answerable for Jones' conduct is Jones' testimony that he is a super- visor by virtue of supervising three employees who con- stitute the Company's office staff, as to whom he makes wage recommendations to Krieger. Two of the employ- ees to whom Jones addressed his unlawful remarks- Zaccagnino and Vogt-testified that they believed him to be a supervisor of the office staff. Also, Jones along with admitted supervisors attended Krieger's speech about the Union, although Jones and his immediate sub- ordinates were ineligible to vote in the election. Jones testified that he did not discuss with Krieger whether or not to give wage increases to unit employees. Further, employee Monte, to whom Jones addressed some of his unlawful remarks, testified that, if an em- ployee wanted a wage increase, he would talk to Krieger and not Jones; "Mr. Jones would only implement what Mr. Krieger said." Further, some of Jones' unlawful statements were made during coffeebreaks, in which he frequently participates with unit employees, and he cre- dibly testified to the belief that he had free discussion with them during such periods. However, I am satisfied that the employees had just cause to believe that Jones had the authority to advise employees about what Krieger's decision about wages and benefits would prob- ably be. (2) The alleged threats made through President Krieger and Supervisor Walters I agree with the General Counsel that the Company violated Section 8(a)(1) in late December 1978 when su- pervisor Walters told employee Monte, possibly in the presence of employees Kevin DeClerck and Reilly, that the Union might require a physical examination and em- ployee Strobl, who suffered from cataracts, might have trouble passing such an examination because of poor eye- sight; and when Company President Krieger told all the employees, including Strobl and the one-eyed Spina, that the Union may in its contract require the employees to take physical examinations and that Krieger was sure some employees, by reason of poor eyesight or other de- fects, would not be able to pass. Further, I agree with the General Counsel that the Company violated Section 8(a)(l) in late December 1978 when Walters told full-time employee Monte, possibly in the presence of full-time employees Kevin DeClerck and Reilly, that if the Union came in Krieger might change the existing practice of accommodating the part-time em- ployees' hours to their school sports activities; and when Krieger sent his December 22 letter to all the employees stating that the Union might bargain away the flexibility benefit for "something else more favorable to them," and that the Company's existing practice was much "easier" than trying to find express flexibility provisions in a union contract. In addition, I agree with the General Counsel that the Company violated Section 8(a)(1) when Krieger referred in his letter to the existing benefits of a discount on gasoline and repair work, uniforms, and lib- eral breaktimes, and then said that the Union might "force" him to discontinue these "favors." Also, I find that the Company violated Section 8(a)(1) when Walters told full-time employee Monte and seasonal employee Kennybrook in late November that Krieger would not keep the part-time employees around if the Union came in. Finally, I find that the Company violated Section 8(a)(l) when Walters told Chester truckdriver Monte and Monroe gas attendants Reilly and Kevin DeClerck about late December that, if the Union came in, it might bring so many expenses that he might decide to cut costs by turning the Monroe gasoline station into a self-service facility; when Walters told Monroe mechanic Strobl and some Monroe part-time gas attendants, that because of the cost increases that could occur if the Union came in, the Company would have to cut corners somewhere, and possibly this would be done by going to self-service; and when Walters further told them that, if the Union came CHESTER VALLEY. INC 1447 in, the Company might be unable to "afford" part-timers as steady employees, because most unions have set hours. In contending that the foregoing statements did not constitute unlawful threats, the Company points to the fact that in making many (but not all) of these assertions, the Company attributed to conduct by the Union the prejudicial impact on employees. However, the Compa- ny undoubtedly had the power unilaterally to effect all of the adverse action which it described in the foregoing statements-namely, requiring physical examinations, eliminating part-time employees, refusing to accommo- date hours to the employees' personal schedules, with- drawing discounts and uniforms, shortening breaks, and going to self-service gasoline sales. Employer allegations that unionization will lead to this kind of action consti- tute unlawful threats, rather than lawful predictions, unless the employer can show that he based such state- ments on objective facts which demonstrate probable consequences outside his control. Gissel, supra, 395 U.S. at 617-619; Hasa Chemical, Inc., 235 NLRB 903, 906-907 (1978); El Rancho Market, 235 NLRB 468, 470 (1978); Marathon Le Tourneau Company, Gulf Marine Division of Marathon Manufacturing Company, 208 NLRB 213 (1974). The record affirmatively shows that, as might be expected, any physical education requirements which may be included in any agreement to which the Union is a party were included at the insistence of the employer and not the Union.6 2 Further, Krieger's references to the possible loss of discounts, uniforms, liberal breaktimes, and flexible hours, and Walters' references to the elimi- nation of part-time workers, did not expressly or by fair implication purport to be based on the possibility that the Union might trade such benefits for others. Rather, Krieger said that the Union might "force" him to discon- tinue most of these "favors"; and, as to flexible hours, implied that the Company would discontinue them unless a union contract expressly required them. Further, Wal- ters did not attribute elimination of part-timers to possi- ble contractual provisions for set hours, but rather said that set-hour provisions would render the Company unable to "afford" part-timers, a result which is anything but self-evident but which he made no effort to explain. Further, Walters attributed a possible self-service deci- sion merely to unspecified costs of unionization, rather than to costs imposed by a union contract.s 3 There is no merit to the Company's contention that the Act was not violated by some of Walter's oral com- 62 Compare Island Holidays, Ltd d/b/a Coco Palms Resort Ilotel. 208 NLRB 966 (1974). Where the employer pointed to the consequences of enforcing a particular, existing collectise-bargaining agreement which would admittedly cover the employer's employees immediately upon their voting for union representation; and Laborers' District Council of Georgia and South Carolina [Southern Frozen Foodsl]. 202 NLRB 753. 754- 755 (1973), affg 501 F 2d 868 (DC. Cir 1974), where the employer raised the possibility that, if the union came in. it would restrict the em- ployer in the way the union had contractually restricted the employer's corporate parent, with the result that certain work presently performed in the employer's plant would be performed elsewhere 63 Cf Federal-Mogul Corporation 232 NLRB 1200 (1977). where the employer said that, under a union contract, benefits would be regulated pursuant to the contract terms, and Stumpf Motor Company, Inc.. 208 NLRB 431 (1974), holding that an employer violated Section 8(a)(1) when he said that unionization would ipso facto result in loss of profit sharing, but not when he said that all benefits were negotiable and collec- tive bargaining would probably lead to loss of profit sharing ments as to eliminating part-time employees or flexible hours for such employees, because the employees who heard management make these remarks were not them- selves part-time employees. It is reasonable to infer that these remarks were passed along to the part-time em- ployees;6 4 indeed, the record affirmatively shows that Monte relayed to some part-time employees Walters' re- marks about self-service, which would directly affect them because all of them pumped gasoline. Moreover, assuming with the Company that Krieger did not intend to threaten the employees (an assumption unsupported by any testimony from Krieger or anyone else), and fur- ther assuming with the Company that the employees were not in fact coerced by Krieger's and Walters' threats (although see infra, sec. II,F,2,b), neither such an employer intent nor such an employee reaction would render such threats lawful. ". . . the test of interference, restraint, and coercion under Section 8(a)(l) of the Act does not depend on an employer's motive nor on the successful effect of the coercion. Rather, the legality of an employer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act." El Rancho, supra, 235 NLRB at 471. Accord: V.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). However, I conclude that the Company did not vio- late Section 8(a)(l) when Supervisor Walters told em- ployee Monte, and perhaps other employees, that the benefits which Monte wanted the Union to obtain for the employees were too expensive for the Monroe gasoline station and Walters would turn it into a self-service sta- tion if he had to. Such remarks dealt with an economi- cally rational means of accommodating two objectively demonstrable circumstances-namely, specific proposed union demands and the Monroe gasoline station's finan- cial condition. (3) Krieger's alleged offer to negotiate directly with the employees if they abandoned the Union During Company President Krieger's early January speech in which he urged employees to vote against the Union, Krieger said that he was upset and hurt by the fact that the employees had gone to the Union and not to him; stated that perhaps something could have been worked out if they had done so: specifically referred to employees' alleged abortive attempt to come to him about a wage increase; said that he would rather deal di- rectly with the men than with the Union; said that he had always had an "open door" policy; further said that if the men came to him in the future he would deal with them about wages and other problems; and also stated that whatever the employees could get from the Union they could get from him. I find that Krieger thereby so- licited grievances, and promised to remedy them, in order to discourage the employees from voting for the Union. By such conduct, the Company violated Section 8(a)(l) of the Act. Flight Safety, Inc., 197 NLRB 223. 64 NLRB v.f Jamaica bowing. Inc.. 602 F 2d 11(X). 1104 2d Clr 1979): El Rancho, upra, 235 NI.RH at 471, fn I CHESTER VALLEY, INC I 1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 227-229 (1972); Reliance Electric Company, Madison Plant Mechanical Drives Division, 191 NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir. 1972); Multi-National Food Service, Division of Schwan's Sales Enterprises, Inc., 238 NLRB 1031, 1033-42 (1978). No different result is indicated by Mt. Ida Footwear Co, a Division of Munro Company, Inc., 217 NLRB 1011 (1975), where the employer did not promise to redress grievances but merely indicated that it would follow its previously established management policies. In the in- stant case, the Company had never before told its em- ployees about any "open door" policy it may have had; and Krieger's speech as a whole, including his reference to his "open door," indicated that in the future he would regard employees' requests much more favorably than in the past. See Stride Rite Corp., 228 NLRB 224 (1977). s5 (4) The wage increase (a) The alleged withholding of a wage increase The complaint as amended alleges that in November 1978 the Company withheld wage increases because of the employees' union activities and the Union's presence. The Company's brief asserts that on an unspecified date Krieger reached a decision to raise wages, but that he withheld such action because he "needed to determine his exact legal duties" in view of the Union's conduct, and "after a slight time delay in order to obtain legal counsel" granted "the increase when he discovered that he had the right to do so." Krieger did not testify, and there is no direct testimony as to when he first decided to raise wages. Nor is there any direct testimonial evi- dence as to when or why he reached his alleged with- holding decision, or as to when or why he allegedly changed his mind. Moreover, his early December letter to the employees states that he had decided to "take the risk" of giving an increase because "I simply see no reason why the great majority of our employees who are loyal to the Company should suffer because of a few em- ployees who have been misinformed and misled by the Union." Furthermore, the record fails to show the time interval between or even the sequence of Krieger's al- leged decision to withhold wage increases because he was unsure of his legal position and his consultations with counsel in connection with the union campaign. 66 However, as to whether the Company violated the Act by withholding a wage increase, the risk of nonper- suasion is borne by the General Counsel. I find that he has failed to overcome that burden. Thus, the General Counsel's post-hearing brief states that there "was some doubt that wage increases were even going to be granted before the Union came on the scene." Of course, unless the record preponderantly shows this, the record cannot preponderantly show that they were unlawfully withheld because of the Union's presence. Moreover, the record evidence, which as to the withholding issue is vague about dates and sequence of events, is at least as consist- 55 The General Counsel's contention that Krieger's conduct also vio- lated Sec. 8(aX5) is discussed infra, sec. II,F,2,a. 56 Except that the record does show that he consulted with counsel the day before he told the employees that retroactive increases would be forthcoming ent with company counsel's position as with the position taken by the General Counsel. The Company seems to contend that Krieger decided before, or at least without regard to, the Union's Novem- ber I petition to give wage increases effective November 20; in consequence of the November I petition Krieger became unsure whether he could legally give wage in- creases and decided to withhold the increases until he could consult counsel; and told employees the day after counsel's reassurance that increases would be given. If this was in fact what happened, an unfair labor practice finding could not be predicated on withholding the an- nouncement of increases until obtaining counsel's ap- proval, if the Company acted with reasonable prompt- ness in consulting counsel, received counsel's advice within a reasonable time, and acted with reasonable promptness on such advice. See Pearl Recycle Center, 237 NLRB 491, 492 (1978). Krieger's early December letter states that on an unspecified date he had decided to give employees a wage increase effective November 20, and the General Counsel's failure (in respects material herein) to limit the purposes for which he offered the letter re- quires that it be given its natural probative effect. Ameri- can Rubber, supra, 214 F.2d at 52. Further, Controller Jones' testimony that Krieger told him between Novem- ber 20 and 22 that the wage increase was not going to be effective shows that Krieger may not have concluded until November 22 that the Union's presence might call the legality of wage increases into question.6 7 The record contains legally probative evidence that this deci- sion was motivated by Krieger's doubts about whether he had the legal right to give increases-namely, the as- sertions in Krieger's letter, which are probative under American Rubber, and Jones' testimony on cross-exami- nation that Krieger attributed his decision to uncertainty about his legal position, which testimony American Rubber renders probative of Krieger's motive in view of the General Counsel's failure to limit the purposes for which such testimony was to be received. 68 Because this basis for Krieger's withholding decision does not prepon- derantly show that it was made after the Company con- sulted counsel about the matter, the record fails to show that the Company discussed the matter with counsel until the conference already referred to, at some time be- tween December 4 and 7.69 Also, Krieger's letter is pro- bative that he was there advised that an increase would 67 It seems likely that wage increases effective Monday, November 20, would not have been actually paid until Friday, November 25, at the ear- liest. 68 Krieger's letter and Jones' testimony might in any event have been probative of motive under Rule 803(3) of the Federal Rules of Evidence. This would lead to the rather curious result that, if counsel had timely sought to restrict the purposes for which Krieger's letter and Jones' testi- mony had been received, probative evidence would show why the with- holding decision was made even in the absence of probative evidence that it was in fact made. s Because the parties stipulated that the preelection representation case hearing was held wholly or partly on November 13, and because the Acting Regional Director's December 12 Direction of Election recites that the Company filed a brief, I infer that the Company retained counsel no later than November 13. While I could take judicial notice of the ap- pearances at the November representation case hearing, the transcript is not physically in the record before me and procuring that transcript would be inconvenient CHESTER VALLEY, INC. 1449 be lawful, and that his announcement to the employees of a forthcoming increase of an undetermined amount was made on the following day. In sum, the time interval between the development of Krieger's alleged doubts and the announcement of an un- determined increase may have been as short as 13 days (November 22 to December 5), including Thanksgiving Day and two weekends, and he announced the increases the day after counsel said he could. In view of the fore- going, I conclude that the General Counsel has failed preponderantly to show that an increase was withheld because the employees had engaged in union activity and because of the Union's presence, rather than in order to give the Company a reasonable time to consult counsel. (b) The granting of the increases During the late summer of 1978, management indicat- ed to several employees that wage increases in the near future were somewhat doubtful. When an employee asked in the first half of October for a raise, company president Krieger replied that there was no money in the checkbook. A few weeks later, at the beginning of No- vember, the Union requested recognition and filed its pe- tition. The Company intensely disliked the prospect of having its employees represented by the Union, and promptly began to campaign against it by means of promising benefits if the employees rejected the Union and threatening reprisals if the Union won the election. On November 13, the Union amended its petition to encompass a unit whose appropriateness is conceded by the Company. Controller Jones' remarks to employee Vogt in late October or early November show that, by that time, management knew that most of the employees had signed union cards. 70 During this same conversation, Jones asked what it would take to keep the Union out, "More benefits, wages or whatever." Early in December, during a conference with Jones and Company President Krieger, Company Attorney Budd asked what the em- ployees were looking for in a union. On the following day, Krieger announced to the employees that he was willing to take the "risk" of giving wage increases effec- tive November 20, notwithstanding the Union's election petition; because "I simply see no reason why the great majority of our employees who are loyal to the Compa- ny should suffer because of a few employees who have been misinformed and misled by the Union." Increases retroactive to November 20 were given to all the em- ployees but one, who was the only unit employee paid on a commission basis, at or about the same time that the Company learned of the election date, about 3 weeks later. During an election campaign, an employer has an obli- gation to proceed with respect to wage increases as if the union were not present. Further, the employer has peculiar knowledge of what factors really contributed to the timing and amount of a wage increase, has peculiar 70 The Monroe facility, which was not included in the two-facility unit set forth in the Union's original petition or in the Union's November 2 telegram requesting recognition, employed about seven employees At least by October 2, authorization cards had been signed by a majority of the employees in the proposed two-facility unit, in the three-facility ap- propriate unit, and in the Monroe facility power authoritatively to inform his employees just what those factors were, and has peculiar power to determine when the employees will become aware of the increases and what explanation, if any, management will give therefor. Accordingly, when a wage increase is granted during an election campaign, the Board will regard the increase as calculated to influence the outcome of the election, and therefore violative of Section 8(a)(1), unless the employer sustains the burden of showing that the timing of the increase was governed by factors other than the pendency of the election. The burden of disasso- ciating the announcement of the increase from the pree- lection campaign is on the employer.7t As to the size of the increases to the five employees who received increases of more than 7-percent effective November 1978, the Company has met its burden by virtue of the parties' stipulation that these five received such increases in order to bring them up to the new stat- utory minimum wage effective as of January 1, 1979. Moreover, the evidence indicates that the Company had a practice of giving wage increases every November, and the complaint as amended concedes, in effect, that the Company acted lawfully to the extent that the De- cember 1978 wage increases approximated the size of the increases in and before November 1977 and were not ret- roactive. Accordingly, the question presented is whether the Company has sustained its burden of showing that the retroactivity of all the increases and the size of the 7- percent increases were disassociated from the election campaign. As to the retroactive character of the increases, I be- lieve that the Company has sustained its burden. Krieger's letter to the employees states, in substance, that the increases would be retroactive to November 20 be- cause the employees should not be made to suffer by reason of the representation petition, whose filing (the letter said) had been the reason why the employees had failed to receive increases on November 20. I regard as plausible, and therefore accept, this explanation in Krieger's letter, which for reasons previously stated is probative evidence of his motive. I need not and do not determine whether I would reach the same conclusion if I had agreed with the General Counsel that the Compa- ny had violated the Act by the conduct (failure to give an increase on November 20) assertedly remedied by the Company's retroactive action. However, I conclude that the Company did violate Section 8(a)(l) by granting wage increases in 1978 which were appreciably larger than those granted in previous years, even though the Company believed that its profits were too low to warrant 1977 or 1978 payments into the profit-sharing plan. The positive evidence shows that as to three employees (Williams, Schaffer, and Vogt), the 7- percent wage increase put into effect in 1978 was from 42 percent to 112 percent higher than the rate of the in- creases granted in November 1977, and from 60 to 100 percent higher than the rate of those granted in Novem- ber 1976. It is true that there is no evidence as to how the 1978 increase of 7 percent compared with the 1977 71 The Dezurik Division General Signal Corporation. 234 NLRB 914, 916 (1978); J P Seens & Co. Inc.. 244 NLRH No 82 11979) CHESTER VALLEY. INC. 1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 1976 increases received by the remaining employees who were in the Company's employ at relevant times.7 2 However, as noted, the burden was upon the Company to sustain any contention that the size of the 1978 in- crease was based on the size of the increases in previous years. Moreover, the Company does not even suggest that employees Williams and Schaffer were treated dif- ferently from other employees in 1976 and 1977; nor do I see any basis for the Company's suggestion that no devi- ation from prior years is indicated by Vogt's 7-percent 1978 increase because, although in 1978 he received the same percentage increase as the 26 others, he received total increases of about 13.4 percent between May 1976 and November 1977. 7 3 Also, because the records show- ing the sizes of the November wage increases before 1978 were in the Company's possession at all relevant times, the Company's failure to produce them gives rise to the inference that they show the November 1978 raises to have been significantly higher than the raises granted in prior Novembers.7 4 I draw such an inference here even though it appears that these records were ob- tained by the General Counsel pursuant to subpoena. Cf. International Union, United Automobile, Aerospace and Ag- ricultural Implement Workers of America v. N.L.R.B. 459 F.2d 1329, 1338 (D.C. Cir. 1972). The Company's brief suggests that the difference between the 1978 increase and the 1976 and 1977 increases is attributable to the "seasonally adjusted Consumer Price Index for the em- ployer's area" for the months of September and October, which for each year the Company's brief purportedly ex- trapolates so as to obtain the change for the entire calen- dar year.7 5 The Company's brief assertions on the basis of this extrapolation process-namely, that the price index increased much more in 1978 than in 1977 (when it allegedly decreased) and in 1976-approach, if indeed they do not constitute, an admission that the 1978 wage increases were significantly higher than in these earlier years. However, there is no evidence that these consum- er price index figures were a factor in determining the size of the annual November increases. Indeed, the Com- pany gave wage increases in November 1977 even though the Company's extrapolated figures reflect a de- crease in the consumer price index. Nor is there any evi- dence that the 7-percent Presidential guidelines, which in any event represent the maximum approved increase 7 Of the 27 employees, whose 1978 wage increases are questioned by the General Counsel, about II were working for the Company in No- vember 1976. and about 13 were working for the Company in November 1977. The record fails to show the total number of employees in the unit on either of these dates. 73 Vogt started working for the Company about April 3, 1976, at a S4 10 hourly rate. About May 8, 1976, he received a 25-cent increase, to $4.35 The amount of his hourly increases in November 1976 and Nosem- ber 1977 was the same as the increases given Williams and Schaffer, but the percentage was lower because Vogt's hourly rate was at all times higher than theirs. 74 Golden State Bottling Co.. Ic.. formerly Pepsi-Cola Bottling Co. of Sacramento. e el. v N.L.R.B., 414 U.S. 168, 174 (1973), relying on, inter ala, N. LR.B. v. Dorns Transportation Company Inc., 405 F.2d 706, 713 (2d Cir 1969); Zapex Corp.. 235 NL.RB 1237, 1239 (1978). 75 The Company's belief does not explain the precise "area" to which its figures apply; the Company's operations are about 40 miles from New York City Nor does the Company explain why it has used the extrapola- tion technique rather than giving the consumer price index change for the 12 month period since the Company's most recent general increase. rather than a recommended figure, had anything to do with determining the size of the November 1978 in- crease. In short, I find that the Company has failed to sustain its burden of showing that, as to the 27 hourly paid em- ployees receiving more than the 1979 statutory minimum wage, the size of their increases was governed by factors other than the pendency of the election. Accordingly, I find that the size of such 1978 wage increases during the preelection campaign was calculated to influence the em- ployees to vote against the Union and, therefore, that by granting increases as high as 7 percent to such employ- ees, the Company violated Section 8(a)(l) of the Act. 2. The alleged violations of Section 8(a)(5) and the requested bargaining order a. The alleged violations of Section 8(a)(S) The complaint alleges, and the answer admits, the ap- propriateness of a unit of employees at the Company's Chester, Vails Gate, and Monroe facilities. As previously noted, the Union's November I bargaining demand speci- fied a unit limited to the Company's Chester and Vails Gate facilities. The letter did not refer to the Monroe fa- cility, which employed about 23 percent of the employ- ees in the three-facility bargaining unit. Because of this substantial deviation between the appropriate unit and the unit specified in the November 2 bargaining demand, that demand was not a proper request to bargain, nor was it cured by the Union's November 13 amendment of its representation petition so as to add the Monroe facili- ty. Motown Record Corporation, 197 NLRB 255, 261 (1972). 76 Accordingly, I shall dismiss the 8(a)(5) allega- tions of the complaint, and deny the General Counsel's motion for leave to amend the complaint so as to allege that the Company violated Section 8(a)(5) by offering in January 1979 to deal directly with the employees. Naum Bros., Inc., 240 NLRB 311 (1979). I need not and do not consider whether I would have granted the motion if a sufficient bargaining demand had been made. b. The requested bargaining order However, the absence of an 8(a)(5) finding does not preclude the issuance of a bargaining order if such an order is appropriate to remedy the 8(a)(l) violations found. Gissel, supra, 395 U.S. at 615-620; N.L.R.B. v. Consolidated Rendering Co., d/b/a Burlington Rendering Co., 386 F.2d 699, 703 (2d Cir. 1967); Naum, supra, 240 NLRB 311. As previously found, at all times between October 28, 1978, and the election on January 16, 1979, the Union had in its possession operative authorization cards from a majority of employees in the appropriate unit. During this period, the Company engaged in unlaw- '6 Cf. Escondido Ready-Mix Concrete, Inc., 189 NLRB 442, 446 (1971), enfd. 78 LRRM 2221 (9th Cir 1971); Pilot reight Carriers, Inc. and BBR oI Florida. Inc., 223 N RI 286, 303 304 (1976); ril County Tube. Inc.. 194 NLRB 103, 105 (1971). I note, hwever, Company President Krieger's letter to the employees, bearing the same date as the Union's addition of the Monroe facility to the petitioned-for unit, in which he stated that he would not recognize the Union without an election Cf. Nazareth Regional High School v. NVL.R.B., 549 F 2d 873, 880 (2d Cir. 197 7 ) CHESTER VALLEY, INC. 1451 ful conduct which had the tendency to undermine major- ity srength and impede the election process. Further, as found infra, the Company's postpetition unfair labor practices call for setting aside the election pursuant to the Union's timely filed objections. Under these circum- stances, a bargaining order should issue if the possibility of erasing the effects of past practices and of ensuring a fair rerun election by the use of "traditional" remedies is slight and employee sentiment once expressed through cards would, on balance, be better protected by a bar- gaining order. In determining the appropriate choice of remedies, account may properly be taken of the exten- siveness of the employer's unfair labor practices in terms of their past effect on election conditions, as well as the likelihood of their recurrence in the future. Gissel, supra, 395 U.S. at 614; Crago Gear & Machine Works, 236 NLRB 539 (1978). At all times herein, the bargaining unit consisted of 31 to 33 employees. All of the employees were present when Company President Krieger solicited grievances from them, and impliedly promised to remedy such grievances, in order to induce the employees to abandon the Union. All of them received Krieger's letter threaten- ing that, if the Union came in, existing benefits of a dis- count on gasoline and repair work, uniforms, and liberal breaktimes might be withdrawn, and the existing policy of flexible hours might be abandoned. All of them were present when Krieger said that, if the Union came in, physical examinations might be required and some em- ployees might be unable to pass them. In addition, em- ployees Vogt, Zaccagnino, and Monte were present when Controller Jones made promises of benefit in order to induce a vote against the Union; unidentified part-time employees, seasonal employee Kennybrook, and full-time employees Monte and Strobl were present when Super- visor Walters said that the Company might get rid of part-time employees if the Union came in; gas attendants Reilly and Kevin DeClerck, mechanic Strobl, truck- driver Monte (who relayed the conversation to some un- identified part-time gas attendants), and some unidenti- fied part-time gas attendants at the Monroe gasoline sta- tion were present when supervisor Walters said that the station might go to self-service if the Union came in: and Monte and perhaps Reilly and Kevin DeClerck were present when Walters, like Krieger, said that, if the Union came in, physical examinations might be required which some employees would be unable to pass, and the present practice of flexible hours might be abandoned. Finally, a few weeks before the election, the Company gave all but six unit employees a wage increase whose size was calculated to induce employees to vote against the Union. In contending that the foregoing conduct does not call for a bargaining order, the Company heavily relies on the evidence that, as of the July 1979 hearing, the Com- pany retained in its employ only 21 (including 19 card- signers) of the 32 employees in the Company's employ on the date of the election about 6 months earlier, and employed 8 new employees in the bargaining unit. Fur- ther, the Company relies on the General Counsel's stipu- lation, supported by other evidence, that 3 of the 21 (Monte, Vogt, and Zaccagnino) wanted the Union at all material times; on honest testimony of 5 employees (4 still employed by the Company at the time of the hear- ing) that Krieger's speech contained no reference to physical examinations or that they could not recall whether or not physical examinations were referred to;77 and on the fact that several of the Company's employees to whom Monroe Supervisor Walters directed his unlaw- ful remarks did not work at the Monroe facility. In addi- tion, the Company relies on the testimony of card signer Ingram, who at the time of the election was a part-time gas attendant at the Monroe facility but at the time of the hearing no longer worked for the Company. When asked, "During the course of the election campaign . . . did you at any time feel threatened by any statements which the employer made depending on how you voted in the election, and if so, what?" Ingram replied, "No, we weren't threatened at all." Also, although the Com- pany's brief does not refer to such testimony, full-time employee Williams testified that the Company did not threaten him as to how he voted, nor did it threaten anyone else in his presence; and full-time employee Gione testified that, during the campaign, no company representative made any statement to him which he con- sidered a promise if he voted against the Union, or a threat. 78 The Company gives some of the foregoing circum- stances rather more weight than they are entitled to. Thus, although Walters directed his unlawful remarks to some employees whom he did not supervise, such re- marks would likely be relayed to Walters' subordinates and, moreover, were to some extent the same as state- ments made to all employees by Company President Krieger in his December 22 letter or his January speech. Also, although Walters directed some of his unlawful threats about part-time employees to employees who were themselves full-time employees, these remarks would likely be relayed to part-time employees. Addi- tionally, employees may have concluded in January from Krieger's speech that a union victory would mean physi- cal examinations, even though they could not recall the following July that such a remark had been made in that particular speech. Further, to the extent that Ingram's, Williams', and Gione's testimony about not being threat- ened refers to their subjective reaction to management's statements, the recognition of constraint is a subtle thing which may call for a high degree of introspective per- ception. Cf. N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 231 (1947); Radio Officers' Union of Commercial Te- legraphers Union, A.F.L v. NL.R.B., 347 U.S. 17, 51 77 Namely, Shaffer, Edwards. Scandurra, Decker, and Ries All of these but Ries were still employed by the Company at the time of the hearing. All but Edwards and Decker had signed union cards. As previ- olusly noted, company counsel conceded that the subject was brought up in Krieger's speech Also, as previously noted, I hae found that Strobl and Spina did remember what was said, notwithstanding their disclaim- ers. 78 Nor does the Company's brief allude to Ingram's credible testimony that he did not think the addition of self-ser ice pumps would change the employees' hours at all Walters did not threaten merely to add self-ser- ice pumps Rather, he threatened t change entirely to self-serslce Em- ployee Reilly credibly testified that this kind of change would mean less employment CHESTER VALLEY, INC. 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1954); Darlington Mfg. Co. v. N.L.R.B., 397 F.2d 760 (4th Cir. 1968), cert. denied 393 U.S. 1023 (1969). However, the most significant support for the request- ed bargaining order is provided by the Company's action in promising the employees benefits if they forgot the Union7 9 and threatening them with loss of economic and other benefits if the Union won the election; granting most of the unit employees a wage increase whose size was calculated to induce them to vote against the Union; and thereafter (during Krieger's speech in early January) soliciting grievances, specifically including wage griev- ances, and impliedly promising to afford a remedy as good as they could obtain through the Union. Taken as a whole, this conduct could lead the employees reasonably to believe that the Company had already given them, for the purpose of inducing them to reject the Union, a large measure of what they were seeking through union repre- sentation; that, if they voted against the Union, the Com- pany would in the future give them through direct nego- tiations at least as much as they could have obtained through the Union; but that, in view of the Company's dislike of the Union, a vote for the Union would cause the Company to become less generous to the employ- ees.8 0 Indeed, after attending Krieger's speech, two card signers decided to tell Krieger that they had never wanted the Union and, instead of going for the Union, to talk to him about more money and more benefits. Such unfair labor practices would likely have a lingering effect on the 17 employees who received the unlawfully high wage increases and remained in the Company's employ, particularly because such increases have been included in their paychecks ever since. The Company "may see no need to violate a cease-and-desist order by further un- lawful activity. The damage will have been done" (Gissel, supra, 395 U.S. at 612). Further, it seems likely that some of these 17 employees would convey to the 8 unit employees hired after the election the events sur- rounding the preelection increases from whose size the old employees had continued to benefit. I regard the messages thus conveyed through and in consequence of these increased weekly paychecks as irredeemably more eloquent than any Board-required notice purporting to negate them. In view of the foregoing considerations, I conclude that the possibility of erasing the effects of the Compa- ny's past unfair labor practices, and of ensuring a fair rerun election, by merely a cease-and-desist order and the posting of notices, is slight at best, and that, on bal- " While some of these promises cannot serve as a basis for setting aside the election because they are not shown to be postpetition, they are to be considered in determining whether a bargaining order is called for MPC Restaurant Corp. and Hardwicke's Plum Ltd. d/b/a Maxwell's Plum v. N.LR.B., 481 F.2d 75, 79, fn. 3 (2d Cir. 1973). 8O "The danger inherent in well-timed increases in benefits is the sug- gestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. The danger may be diminished if, as in this case, the benefits are conferred permanently and unconditionally. But the absence of conditions or threats pertaining to the particular benefits conferred would be of con- trolling significance only if it could be presumed that no question of addi- tional benefits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is tenable." N.L.R.B. v. Ex- change Parts Co., 375 U.S. 405, 409-410 (1964). ance, a bargaining order should issue on the basis of the authorization cards-which, I note, had been signed by 19 of the 29 unit employees employed by the Company at the time of the hearing.8 ' Accordingly, I shall recom- mend that the Company be required to bargain with the Union, on request.8 2 The Company's bargaining obliga- tion is held to have arisen on November 1, 1978, the ap- proximate date that the Company's unfair labor practices began. Naum, supra, 240 NLRB 311. H. Analysis and Conclusions With Respect to the Objections in the Representation Case An election can be set aside on the basis of conduct discovered during an investigation even though that par- ticular conduct was not the object of a specific objec- tion. Seneca Foods Corporation, 244 NLRB No. 80, fn. 3 (1979). Moreover, postpetition conduct which constitutes unfair labor practices is also conduct which invalidates a subsequent election, at least where, as here, a change of three or four votes would have changed the result and at least some of such conduct was known to practically all the employees. Caron International, Inc., 246 NLRB No. 179 (1979). Accordingly, I need not and do not consider which of the Company's unfair labor practices is fairly encompassed within the objections and which are not. I shall recommend that the election be set aside on the basis of the unfair labor practices specified in Conclu- sions of Law number 5, infra (except 5,a, regarding con- duct not shown to be post-petition). Further, in view of the bargaining order recommended below, I recommend that the petition in Case 2-RC-18160 be dismissed, and that all proceedings in connection therewith be vacated. CONCLUSIONS OF LAW I. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time, regular part-time, and seasonal truck- drivers, mechanics, servicemen, warehousemen, and dis- patchers employed by the Company at its Chester, Monroe, and Vails Gate, New York, facilities excluding all office clerical employees, sales personnel, accountants, guards, and all supervisors, as defined in Section 2(11) of 81 For purposes relevant here, the Board seems to draw no distinction between the "category one" and "category two" cases as described in Gissel. supra, 395 U.S. at 613-615. See United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979). However, I note as a possible matter of interest to other reviewing authorities that I regard this as a "category two" Gissel case (395 U.S. at 613-615). se Frederick's Foodland. Inc d/b/a Bucyrus Foodland North and Bu- cyrus Foodland South, 247 NLRB No. 38 (1980); K & K Gourmet Meats, Inc., 245 NLRB No. 173 (1979); Teledyne Dental Products Corp., 210 NLRB 435 (1974); Pedro's Inc., d/b/a Pedro's Restaurant, 246 NLRB No. 92 (sec. Il,H,3) (1979); Jamaica owing. Inc., 247 NLRB No. 42 (1980); Byrne Dairy, Inc. v. N.L.R.B.., 431 F 2d 1363 (2d Cir. 1970); Tower Enter- prises. Inc.. d/b/a Tower Records, 182 NLRB 382, 387 (1970), enfd. 79 LRRM 2736, 67 LC 12453 (9th Cir. 1972). In Walgreen Co., 221 NLRB 1096 (1975), cited by the Company, no bargaining order issued where an unlawfully motivated increase had merely brought the unit employees up to the level received by employees in other stores and the employer's other unfair labor practices (interrogation and a reprimand) did not serve to enhance the effect of the increase. CHESTER VALLEY, INC. 1453 the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times since November 1., 1978, and still is, the exclusive bargaining representative of the employees in said unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. The Company has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by engaging in the following conduct: a. In late October or early November 1978, through controller Gary Jones, impliedly promising employees unspecified benefits in order to keep the Union out. b. In November 1978, through Jones, impliedly prom- ising employees unspecified benefits in order to keep the Union out. c. Through Jones, offering an employee increased pay- ments into his profit-sharing plan in order to induce him to abandon the Union. d. Through Supervisor Francis Walters and President Charles Krieger, threatening employees that, if the Union came in, working hours might become less flexible and physical examinations might be required which some employees would probably fail to pass. e. Through Krieger, threatening employees with loss of certain benefits if the Union came in. f. Through Walters, threatening that, if the Union came in, the Company might turn the Monroe gasoline station into a self-service facility and might or would get rid of part-time employees. g. Through Krieger, soliciting grievances, and implied- ly promising to remedy them, in order to discourage the employees from voting for the Union. h. During the election campaign, granting wage in- creases whose size was calculated to influence the em- ployees to vote against the Union. 6. The Company has not violated Section 8(a)(1) of the Act by telling at least one employee, through Wal- ters, that the benefits which he wanted the Union to obtain for the emolcyees were too expensive for the Monroe gasoline staticn and it would be turned into a self-service station f Walters had to; by withholding a wage increase in Ncveniber 1978; or by making retroac- tive to November 1978 wage increase put into effect in December 1978. 7. The Company has not violated Section 8(a)(5) of the Act by failing or refusing to bargain with the Union. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I shall recommend that it be required to cease and desist therefrom. Because the Com- pany's unfair labor practices were deliberately directed at every employee in the unit, included threats to commit unfair labor practices in the future, were com- mitted to a significant extent by the Company's presi- dent, were committed throughout the Union's preelec- tion campaign, and involved several different types of violations, a broad order is called for. Hickmott Foods, Inc., 242 NLRB 1357 (1979). Accordingly, I shall recom- mend that the Company be required to cease and desist from infringing on employees' rights in any other manner. Affirmatively, the Company will be required to bar- gain with the Union and to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER 8 3 The Respondent Chester Valley, Inc., Chester, Monroe, and Vails Gate, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising benefits to employees in order to pre- vent Local 445, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), from organizing Re- spondent's employees. (b) Offering employees increased payments into their profit-sharing plan in order to induce them to abandon the Union. (c) Threatening employees that, if the Union comes in, part-time employees will or may lose their jobs; Re- spondent's gasoline station may be turned into a self- service operation; employees may lose the benefits of a discount on gasoline and repair work, uniforms and liber- al breaktimes; working hours may become less flexible; and physical examinations may be required which some employees will probably fail to pass. (d) Soliciting grievances, and impliedly promising to remedy them, in order to discourage employees from voting for the Union. (e) During an election campaign, granting wage in- creases whose size is calculated to influence employees to vote against the Union. (f)In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the Union as the exclusive representative of em- ployees in the following unit and, upon request, embody in a signed agreement any agreement reached: All full- time, regular part-time, and seasonal truckdrivers, me- chanics, servicemen, warehousemen, and dispatchers em- ployed by Respondent at its Chester, Monroe, and Vails Gate, New York, facilities, excluding all office clerical employees, sales personnel, accountants, guards, and all supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended. 1" In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board (and see the proviso to Sec. 102.69(f)); the findings, conclusions, and recom- mended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclu- sions, and Order, and all objections thereto shall be deemed waived for all purposes CHESTER VALLEY. INC. . , ... .. _ 1454 DECISIONS OF NATIONAL LABOR RELATIONS H()OARD (b) Post at its facilities in Chester, Vails Gate, and Monroe, New York, copies of the attached notice marked "Appendix B.'" 4 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive 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 covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. The complaint is hereby dismissed to the extent it al- leges that the Company violated Section 8(a)(5) of the Act by failing and refusing to bargain with the Union, and violated Section 8(a)(l) in the respects not specifical- ly found herein. 4 In the evnli that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted Bly Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order if he National abor Relations Board" APPENDIX A Employees in unit at all times between October 28, 1978, and January 16, 1979: The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE Wll . NOT promise you benefits in order to keep Local 445, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Team- sters Local 445,from organizing you. WE WILl. NOT offer you increased payments into your profit-sharing plan in order to induce you to abandon Teamsters Local 445. WE W. NOT threaten you that, if Teamsters Local 445 comes in, part-time employees will or may lose their jobs; our gasoline station may be turned into a self-service operation; employees may lose the benefits of a discount on gasoline and repair work, uniforms, and Liberal breaktimes; working hours may become less flexible; and physical exami- nations may be required which some employees will probably fail to pass. WE WIl.L NOT solicit grievances, and impliedly promise to remedy them, in order to discourage em- ployees from voting for Teamsters Local 445. WE Wll.1 NOT grant you, during an election cam- paign, wage increases whose size is calculated to in- fluence you to vote against Teamsters Local 445. WE WIll NOT in any manner interfere with, re- strain, or coerce employees in the exercise of these rights. WE Wll.l, on request, recognize and bargain with Teamsters Local 445 about the wages, hours, and other conditions of employment of the employees in the following unit, and sign any agreement reached: All full-time, regular part-time, and seasonal truckdrivers, mechanics, servicemen, warehouse- men, and dispatchers at our Chester, Monroe, and Vails Gate, New York facilities, excluding all office clerical employees, sales personnel, ac- countants, guards and all supervisors. Our employees are free to exercise any or all of these rights, including the right to join or assist Teamsters Local 445 or any other union. Our employees are also free to refrain from any or all such activities, except to the extent that they may be covered by a collective-bar- gaining agreement which lawfully requires employees to be union members in order to keep their jobs. CHESTER VALLEY, INC. Jesse Bell Harry Brock Richard Brumfield Frederick Conklin, Jr. Donald Decker Douglas DeClerck Kevin DeClerck Dennis Diaz Myrtle Edwards Steven Gione John Hulse Thomas Ingram Russell Kennybrook Ronald Kolk Ralph Leiter Lance Miller Michael Monte Thomas Moore Christopher Reilly Frederick Ries Timothy Rudden Edward Schaffer Paul Spina Gordon Strobl Winfield Turk Robert Vogt Robert Weyant Roger Williams Adolph Wright Michael Zaccagnino APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice.