Great Plains Steel Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 968 (N.L.R.B. 1970)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Plains Steel Corp. and International Brother-
hood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America , Local 307. Cases
27-CA-2708 and 27-RC-3560
June 23, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 25, 1970, Trial Examiner Robert L.
Piper issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and General Counsel filed an answering brief to the
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
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion , the exceptions and briefs, and' the entire
record in these cases, and hereby adopts the
findings, conclusions , and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Great Plains Steel Corp.,
Cheyenne, Wyoming, its officers, agents, succes-
sors, and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order.
' These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner , to which the Respondent has ex-
cepted, alleging that the Trial Examiner was biased and prejudiced After a
careful review of the record, we conclude that the Trial Examiner 's credi-
bility findings are not contrary to the clear preponderance of all the rele-
vant evidence Accordingly, we find no basis for disturbing the Trial Ex-
aminer's credibility findings in these cases , and reject the charge of bias
and prejudice Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F2d362(CA 3)
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: Upon an
original charge filed May 1, 1969,' amended June
16, by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 307 (hereinafter called the Union),
against Great Plains Steel Corp. (hereinafter called
Respondent), alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as
amended, a complaint was issued against Respon-
dent on July 2, alleging, as amended, violations of
Section 8(a)(1) and (3) of the Act.
On the same-day in Case 27-RC-3560 the Re-
gional Director for Region 27 directed a hearing
before a Trial Examiner on the Union's objection to
conduct affecting the results of the election and on
the granting of wage increases by Respondent, and
directed that such hearing be consolidated with the
hearing on the complaint and that thereafter Case
27-RC-3560 be transferred to and continued be-
fore the Board. The objections consolidated for
hearing with the complaint are limited to the period
from February 3, the date of the filing of the peti-
tion , to April 25, the date of the election.' Respon-
dent's answer as amended denied the alleged unfair
labor practices.
Pursuant to due notice, this consolidated
proceeding was heard by me at Cheyenne, Wyom-
ing, on August 19 and 20 and September 30. The
General Counsel and Respondent filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, a wholly owned subsidiary of Om-
steel Industries , Inc., of Omaha, Nebraska, is a
Wyoming corporation engaged in the business of
metal fabrication and the sale of various materials
with its principal office and place of business at
Cheyenne, Wyoming. During the past year it
derived gross revenue in excess of $500,000 from
its business operations and purchased and received
in Wyoming more than $50,000 worth of goods
directly from points outside the State of Wyoming.
Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
' All dates hereinafter refer to 1969 unless otherwise indicated
Ideal Electric and Manufacturing Co., 134 NLRB 1275 (1961)
183 NLRB No. 96
GREAT PLAINS STEEL CORP. 969
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
This consolidated proceeding involves nine al-
legations of interference , restraint , and coercion,
alleged also to be for the purpose of destroying the
Union 's majority status and evading Respondent's
obligation to bargain collectively with the Union,
alleged discriminatory withholding of approved
wage increases from employees because of their
union activities , and the objection to conduct af-
fecting the election , i.e., promising wage increases
to the employees if they would reject the Union in
the election.
The issues as framed by the pleadings and the ob-
jection are: (1) interference , restraint , and coercion
by (a) telling employees that previously approved
wage increases were being withheld because the
Union had filed an election petition ; ( b) telling em-
ployees that their wage increases were being
withheld because of their union activities; (c)
promising employees new and improved insurance
benefits to induce them to vote against the Union;
(d) threatening employees with plant closure if the
Union succeeded in organizing them ; ( e) promising
employees pay raises and other benefits if they
voted against the Union ; ( f) promising employees
pay raises as soon as the Union 's objections to con-
duct affecting the results of the election were
disposed of; (g) granting pay raises on two occa-
sions to certain employees in fulfillment of its
promise to do so if the employees voted against the
Union ; and (h ) requesting employees to sign state-
ments prepared by Respondent disavowing its com-
mission of alleged unfair labor practices; and (2)
discriminatory withholding of -approved wage in-
creases from its employees because of their union
activities . At the conclusion of the case -in-chief,
the General Councel's motion to dismiss paragraph
8(c) of the complaint , alleging that Respondent
promised its employees new and improved in-
surance benefits to induce them to vote against the
Union, was granted.
A subsidiary issue is -whether the allegations of
the complaint , including the alleged discrimination
in violation of Section 8(a)(3) of the Act , are suffi-
ciently supported by the charge , as amended , alleg-
ing violations of Section 8(a)(1) and ( 5) of the
Act, in the light of the requirements of Section
10(b) of the Act.
B. Chronology of Events
Respondent is a wholly owned subsidiary of Om-
steel Industries , Inc., an Omaha , Nebraska, cor-
poration . Respondent 's only officials in Cheyenne
were Russell A. Clark, the plant manager , and John
Gilmore , the plant superintendent or foreman
under Clark. In addition, Al Mininni , Omsteel's
contract sales manager , was designated as coor-
dinator of Respondent and as such was Clark's im-
mediate supervisor . Bert J . Baines, Omsteel's vice
president in charge of production , was Mininni's
immediate supervisor . Richard T. Kingslan was
Omsteel 's personnel manager.
According to Respondent , it never granted
general or across-the-board wage increases but only
granted wage increases based on merit to individual
employees , and in doing so did not consider all or a
group of employees at any one time for such in-
creases . Gilmore, as the employees ' immediate su-
pervisor and foreman , recommended such in-
dividual merit increases to Clark after consultation
with him . Thereafter Clark transmitted his recom-
mendations to Mininni , who in turn transmitted his
recommendations for approval by Baines. Sub-
sequently , Omsteel 's personnel department would
put such increases into effect . Clark succeeded
Mininni as Respondent 's plant manager on
November 1, 1968, but Mininni did not leave
Cheyenne to return to Omaha until January. As a
result Mininni was available for consultation with,
and did consult , Clark and Gilmore concerning pay
raises in December and early January . In December
1968 or early January , Respondent approved wage
increases for 10 of its then approximately 20
production and maintenance employees , to be ef-
fective partially in February and partially in March.
This fact was not announced to or known by the
employees until later.
The record establishes that throughout the entire
period in question the employees' primary concern
was in securing an increase in wages . On or about
January 25, a majority of Respondent 's production
and maintenance employees requested Johnny D.
Spears, the Union 's secretary and treasurer, to or-
ganize Respondent 's employees. Spears advised
them that before he would even consider organizing
the plant they would have to pay their initiation
fees and 1 month 's dues , to think it over carefully,
and to return within 1 week after they had made up
their minds . On or about February 1, at a second
meeting with Spears , 15 of the employees signed
unambiguous authorization cards , which stated only
that the signer authorized the Union to represent
him as his collective -bargaining agent . The 15 also
signed applications for membership in the Union,
and a substantial majority paid their initiation fees
and 1 month 's dues and signed checkoff authoriza-
tions for subsequent dues . Respondent had approxi-
mately 20 production and maintenance employees
at that time , including 1 plant clerical in charge of
material inventory.
Respondent contends that the above -discussed
wage increases were not finally approved by Om-
steel until mid or late February , but the record
establishes , based on the testimony of Respondent's
officials, that such wage increases were approved
prior to Respondent 's knowledge of the employees'
union activities , including the filing of the petition,
which occurred after the approval and before the
planned effective dates in February and March.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, even if finally approved in mid-Februa-
ry, the record establishes that Respondent
thereafter withheld such approved wage increases
from the employees until June because of their
union activities and the filing of the representation
petition. Whatever the effective date of approval,
Respondent admitted that it thereafter withheld
such wage increases from the employees because of
their union activities, including the filing of the
petition, and frequently so advised the employees.
When called originally as an adverse witness,
Clark testified that these wage increases were de-
cided on in December 1968 by himself, Gilmore,
and Mininni, to be effective, some in February and
some in March, to approximately 9 or 10 of the em-
ployees. In a written statement furnished to the
Board by Respondent's attorney, John E. Tate,
prepared by him in consultation with Clark, Tate
stated that the pay raises had been determined in
January and had been held up thereafter because of
his legal advice of the possibility of the Union using
them as the basis for unfair labor practice charges
or filing objections to the election if it lost. Respon-
dent offered no evidence concerning, nor does the
record establish, the specific dates in February and
March on which the individual employees would
have received these wage increases if they had not
been withheld. Gilmore testified that in January
shortly after the first of the year he was advised by
Clark that the raises which had already gone to the
home office would have to be withheld on account
of the employees' union activities. Frank Roper,
who acted as supervisor in Gilmore's absence,
testified that everybody was scheduled to receive a
raise when the union activity began around the first
of February, but that Gilmore had informed him
then that the raise could not be granted because of
the union activity.
When recalled as a witness for Respondent more
than a month after the original hearing, Clark, con-
trary to his original testimony, testified that he, Gil-
more, and Mininni had decided in early January to
grant these raises , they were not approved by Om-
steel until late February, and they were to be
granted to the employees on various unspecified
dates in February, March, April, and May. I do not
credit Clark's testimony as changed at the second
hearing. On cross-examination Clark again ad-
mitted that the wage increases had been decided on
in either December 1968 or January. Clark also ad-
mitted that he informed Gilmore that the wage in-
creases had been approved but that they could not
be granted because the Union might file unfair
labor practice charges. I am satisfied and I find that
these wage increases, subsequently granted to 10
employees on or about June 13, were finally ap-
proved by Respondent sometime in January, prior
to Respondent's knowledge of the employees'
union activities which Respondent acquired on or
shortly before the filing of the petition by the Union
on February 3, and that thereafter Respondent
withheld such previously approved wage increases
because of the employees' union activities, includ-
ing the filing of the petition, in turn because of the
possibility of unfair labor practice charges or the
filing of objections to the election.
On or about February 10 Gilmore informed Jim-
mie Lee Hite, one of the employees, that Hite had a
10-cent-an-hour raise in the office approved by
Respondent but that he had "messed things up"
and that Respondent would not be able to release it
to him because of the employees' union activities.
Hite explained that Gilmore said this because he
had been promising Hite a raise since before the
prior November. Gilmore admitted discussing the
subject of raises during late January and early
February with a number of the employees although
he could not recall any specific individuals, includ-
ing Hite . According to Gilmore, he told each em-
ployee with whom he talked about wage increases
that he had been informed by Clark that Respon-
dent's attorney had advised Respondent to make no
changes at that time. However, in an affidavit taken
by Respondent and offered in evidence by the
General Counsel, Gilmore testified that he had told
employees: "As to pay raises, I have said that we
were about to put raises into effect when this union
matter came up, but our lawyer advised us that if
we did, the unions might use it as a basis for filing
an unfair labor charge or objections to the results
of an election. I think I said this sometime in
February or March of 1969." Gilmore flatly con-
tradicted this sworn statement, testifying at the
hearing that he had not told employees this, and
that the wage increases had not been approved. Gil-
more also testified that he had no knowledge of the
Union's election petition, but did have knowledge
of the union activity, which tends to corroborate
Hite's statement. Contrary to Gilmore, Clark
testified that he told Gilmore that the wage in-
creases had been approved but that they could not
be granted because of the employees' union activi-
ties and the possibility of unfair labor practice
charges. I credit Hite and do not credit Gilmore,
who was substantially impeached by his own af-
fidavit.
The representation hearing was held March 3.
On the evening of April 8 Respondent held a dinner
at a Cheyenne hotel to which all of its employees
were invited, one of the purposes being to explain
certain changes in Respondent's group insurance
program as of the prior December which were not
thoroughly understood by the employees. Approxi-
mately half of the employees attended. After
dinner, speeches were made by Kingslan, Baines,
Mininni, and Tate. Kingslan explained the changes
in the group insurance program, and then in-
troduced Baines . Baines discussed the history of
Omsteel and Great Plains and his role as a labor
negotiator for Omsteel. He and all of the sub-
sequent speakers made plain to the employees that
Respondent was opposed to the Union and did not
want the employees to vote for it in the forthcom-
ing election. Both Baines and Mininni stressed the
GREAT PLAINS STEEL CORP. 971
desirability of the employees negotiating directly
with Respondent instead of through the Union.
Either Baines,- Minnini , or Tate gave several exam-
ples of specific companies ' having gone out of busi-
ness as a result of union organization and sub-
sequent strikes . Mininnhi , who actually started
Respondent as a subsidiary of Omsteel , spoke of its
early history and stressed the desirability of the em-
ployees' working with Respondent and not through
the Union , informing them that they would do
better negotiating directly with Respondent rather
than through the Union . Tate, who tape recorded
his speech and so advised the audience, also
stressed the reasons why Respondent was opposed
to the Union and wanted the employees to vote
against it, informed the employees that Respondent
would negotiate with the Union in good faith if it
were selected , but that negotiations could take up
to 2 years before a contract was reached, and in-
formed the employees of a specific company in
Cheyenne , which he had represented as attorney,
where a union had been selected, ensuing negotia-
tions reached an impasse because of the union's in-
sistence upon a checkoff provision , a strike ensued,
and the company subsequently shut down and went
out of business , with the result that all of the em-
ployees lost their jobs.
After the speeches, the gathering broke up into
smaller groups and a number of conversations and
discussions ensued between the employees and
Respondent 's representatives , including Clark and
Gilmore as well as the speakers . Because of the
reference during the speeches to the closing of
other plants as a result of union organization, the
subject of Respondent closing its Cheyenne plant
came up . Mininni told a number of the employees
that Omsteel had gotten along without Respondent
for 50 years and no doubt could do so again if it
had to if things got too tough . Both Clark and
Mininni admitted the foregoing. On cross -examina-
tion Mininni admitted that he had no knowledge of
any consideration by or possibility of Omsteel's
closing Respondent 's plant.
During the conversations after the April 8 dinner
meeting , Mininni told several of the employees that
they had a dime-an-hour raise waiting for them in
the office and that they would do better by going
along with Respondent and could get an additional
greater raise by negotiating directly with it instead
of working through the Union . Both Mininni and
Gilmore told the employees that there was an ap-
proved raise in the office but that it could not be
given out because of their union activities and the
possibility of unfair labor practice charges against
Respondent . Mininni told Mickey Barnhart, an em-
ployee, who asked why he had not received a raise •
promised in December , that he had gone down on
Friday or Saturday and joined the Union, on Mon-
day the raise came in, and he would have received
it if he had not joined the Union. This statement
was not denied by Mininni . February 1, the date the
employees signed their authorization cards and ap-
plications for membership in the Union, was a
Saturday . Reference was made to the raise being 10
cents an hour . Mininni also told the employees that
if the Union wasn't voted in their raises would be
released immediately . When some of the employees
asked what they could do about the Union after
they had proceeded that far, Tate replied that they
could all sign a withdrawal statement and submit it
to the Union . Mininni admitted that many of the
employees asked about the pay raises "in the of-
fice" and when they would receive them and stated
that he replied that Respondent 's attorney had ad-
vised it not to release these pay increases because
such action could be the basis for filing an unfair
labor practice charge or objections to the
forthcoming election.
On or about April 17, Clark called James N. Ben-
son, another employee, to Clark 's office and told
him that the employees ' raises had been approved
but that they could not get them as long as the
union activity was going on . The election was held
at the plant on the morning of April 25 . Approxi-
mately 30 minutes prior thereto , nine of the em-
ployees were engaged in a group discussion in the
shop . Benson said to the others that he was going to
talk to Mininni, who was in the shop , before Ben-
son made up his mind how to vote, and ask him
about their raises . The employees could see but not
hear Benson talk to Mininni . Benson asked Mininni
how soon the employees could get wage increases if
the Union lost the election . Mininni replied "im-
mediately ." Benson returned to the group of em-
ployees and told them that Mininni had said that
they could get the wage increases of from 20 to 30
cents an hour immediately provided the Union lost
the election , an apparent reference to the greater
raises promised by Respondent to the employees at
the April 8 dinner in addition to the raises already
approved but not released if they voted against the
Union.
Mininni denied telling Benson that the employees
would get an additional raise if they voted against
the Union , but admitted replying to him that if the
employees voted against the Union in his opinion
the approved raises could be released immediately.
I credit Benson and the other employees . Fifteen
employees voted , four for the Union , eight against,
and three challenged ballots . Immediately after the
results were announced in the plant that morning,
Tate advised all of the employees who had voted
that the approved raises in the office could not be
released until 7 days after the election . (Under the
Board's Rules , including the intervening Saturday
and Sunday , the Union had 7 days within which to
file objections to the election .) Some of the em-
ployees understood Tate to say that there would
have to be a 7-day waiting period before Respon-
dent could talk to the employees about raises. By
this time all of the employees knew that there was
an approved wage increase waiting "in the office."
On May 1, the Union filed an objection to conduct
affecting the election, alleging that Respondent
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promised a wage increase to the employees if they
would vote against the Union , and an unfair labor
practice charge to the same effect alleging a viola-
tion of Section 8(a)(1).
Although Respondent had promised the em-
ployees that the previously approved wage in-
creases would be released immediately or shortly
after the election if the Union lost and had
promised additional more substantial wage in-
creases if the employees voted against the Union,
Respondent took no action with respect to such
wage increases during April and May . As a result a
number of the employees became dissatisfied and
from time to time complained to Respondent 's offi-
cials concerning their promised pay increases. On
June 11 , 10 of the employees signed authorization
cards for the Union , the same form as that signed
February 1. There were then only 14 production
and maintenance employees in the unit, 7 having
left Respondent 's employ and 1 additional em-
ployee having been hired . Thus the Union again
secured the signatures of a substantial majority of
the employees in the unit. As a result of the em-
ployees' continued complaints concerning their
promised wage increases , on June 11 or 12 Minin-
ni, Clark , and Gilmore met with three of the em-
ployees, Hite , Barnhart , and George Riedel, con-
cerning wage increases . According to Respondent,
the employees were trying to persuade it to grant
wage increases so that it would not lose its good
employees , but no agreeement was reached with
respect thereto . According to Hite, whom I credit
an d whose testimony in that regard was undenied,
the employees kept after and met with Respon-
dent 's officials to ascertain why the wage increases
which had been promised immediately after the
election had not been released . It may well be, as
Respondent contends, that some of the employees
were threatening to quit because they had not
received the promised wage increases.
Subsequently Clark had the three employees sign
an affidavit concerning that meeting to the effect
that they asked Respondent to grant wage increases
so that it would not lose good employees and that
no agreement was reached . Hite testified that Clark
asked them to sign such an affidavit to help him get
out of a bind . Clark admitted that he told the three
employees when he requested them to sign the af-
fidavit that Respondent had been charged with an
unfair labor practice and wanted to formulate or
come up with some facts of its own to show that it.
was not guilty as charged . Whatever occurred at
that meeting on June 11 or 12, on June 13, retroac-
tive to May 5, Respondent granted the wage in-
creases of 5 and 10 cents an hour previously ap-
proved in January to 10 of the 14 employees in
the unit . Clark identified nine of the employees
who received the wage increase on June 13 retroac-
tive to May 5 . Roper subsequently testified that he
also received that wage increase although he had
not been named by Clark in his testimony. All of
the 10 employees received an increase of 10 cents
an hour except 2, who received 5 cents an hour. I
find that this increase was granted pursuant to
Respondent 's promise to release the previously ap-
proved wage increases after the election if the
Union lost, and was granted at a time when
Respondent knew that the Union 's objection to the
election was pending.
On June 16 the Union filed an amended charge,
alleging a refusal to bargain in violation of Section
8(a)(5). On June 24 Spears presented Clark with
the 10 authorization cards signed June 11 and
requested recognition and bargaining. Clark
refused to look at the cards, said that he was
without authority and refused to bargain , and sug-
gested that if Spears desired to explore the matter
further he contact Tate . Later that day Clark sent
Spears a telegram stating that Respondent had a
good-faith doubt that the Union represented a
majority of its employees because a majority had
voted against it on April 25. Spears did not contact
Tate.
On June 26 Clark asked substantially all of the
employees to sign previously prepared identical af-
fidavits containing certain facts, conclusions, and
self-serving declarations with respect to Respon-
dent 's position concerning some of the incidents in-
volved in this proceeding . These affidavits were
prepared in advance by Respondent 's attorney and
did not constitute facts elicited from the employees,
i.e., their knowledge of what had occurred with
respect to the various incidents . Clark summoned
each of the employees individually to his office,
asked him to read the statement and sign it if he
agreed with it, and informed him that the signing
was voluntary . Clark did not advise the employees
as to the purpose of the statement or assure some
of them that no reprisals would be taken against
them for refusing to sign . Apparently Clark told
some of the employees that there would be no
reprisals whether or not they signed the affidavit.
When originally called by the General Counsel
Clark testified that he told the employees only that
he wanted them to read it and would like them to
sign it if it was true . Clark testified that the af-
fidavits constituted a compilation of Respondent's
interpretation of what some of the charges against
it were and Respondent's position as to what oc-
curred during the time period covered , and that it
wanted to ascertain if the employees actually be-
lieved the charges . Eleven of the employees signed
the affidavits , two making a few brief modifications
in the margin . George Riedel refused to sign. After
the statements were signed they were sworn to be-
fore Clark 's secretary , a notary public.
The record establishes that at that time all of the
employees knew that Respondent had under con-
sideration wage increases as previously promised,
and that under such circumstances they were un-
willing to curry disfavor with Respondent by refus-
ing to sign the affidavit, even though a number of
them disagreed with certain statements therein, as
evidenced by their subsequent testimony at this
GREAT PLAINS STEEL CORP. 973
hearing. Nine of the eleven employees who signed
the affidavit subsequently received a pay raise. One
of the other two had left Respondent's employ.
George Riedel, the only one who refused to sign the
affidavit, did not receive the subsequent pay raise.
Hite testified that at the time Clark requested him
to sign the affidavit the employees were expecting
to get their raises, Respondent was asking about
their company attitude and what they knew, and he
figured that if he didn't sign the statement he
wouldn't get his raise.
Lewis Lyon, no longer employed by Respondent,
testified that he signed the affidavit after making
two corrections in the margin because he felt that it
really didn't say anything of consequence, it was
ambiguous, and it stated no real facts as he knew
them. He testified that he felt the affidavit would do
him no harm and would do Respondent no good.
As with many of the others, Clark did not advise
him as to the purpose of the affidavit or assure him
that there would be no reprisals, but did advise him
that his signing was voluntary. During their conver-
sation Lyon asked Clark why he had not released
the raises which had been promised and were "in
the office." Clark replied that he could not release
them on advice of Respondent's attorney because
of the pending unfair labor practice charges. Lyon
told Clark that Lyon understood from a Board
agent that the raise could be given if it was for the
purpose of retaining employees and suggested that
Clark get somebody to witness telling the em-
ployees about the raise. Clark replied that he had
not thought of doing that. Clark, when recalled by
Respondent after more than a month's interval,
stated, contrary to his original testimony, that he
had told the employees the purpose of the affidavit,
i.e., the pending investigation by the Board, assured
them that there would be no reprisals whether or
not they signed, and informed them that their sig-
ning was voluntary and that they should sign only if
they agreed that it was true. I credit the employees'
and Clark's original statement concerning the cir-
cumstances surrounding the signing of the af-
fidavits.
Later the same day Clark had Hite, Barnhart, and
George Riedel sign the affidavit concerning the
June 11 or 12 conference about wage increases
they had with Clark, Mininni, and Gilmore,
hereinabove discussed and found, including the
statement that the employees were requesting wage
increases so that Respondent would not lose its
good employees, one of the suggestions Lyon had
made to Clark earlier that day. As Clark then told
Hite and testified herein, Clark had this affidavit
signed because he wanted to formulate or come up
with some facts to show that Respondent was not
guilty of the unfair labor practices charged.
On or about June 27, Mininni called Hite to the
office and asked him whether all of the employees
would be happy if Respondent gave everybody a
20-cent raise in addition to the raise which had al-
ready been given. Mininni advised Hite that
Respondent would be keeping its promise to the
employees if it did this. Hite replied that some of
the men would be satisfied and others would
probably take the money and go with the Union
anyway. Hite testified that Mimnm was supposed to
give the employees a definite answer that same day
concerning this second raise , but decided to
withhold it for a few days. Although Mininni
testified that he never promised a wage increase to
anyone, he did not deny this specific conversation
with Hite.
On June 27 Clark invited Spears to Clark's of-
fice, at which time Clark had Hite and Barnhart
present for the purpose of witnessing the conversa-
tion and subsequently informing all of the other
employees concerning it. This likewise followed
one of the suggestions made to Clark by Lyon the
preceding day. Clark asked Spears if the Union had
any objection to Respondent granting the em-
ployees a wage increase. There was no mention of
when, how much, or which employees. Spears
replied that the Union had no objection whatever.
Clark admitted that he had discussed the raises with
Gilmore and Mininni before talking to Spears, and
that he wanted Hite and Barnhart present to verify
that what he told them about the wage increases
was true. Later that day Spears sent Clark a letter,
received by Respondent July 1, stating that, while
the Union had no objection to Respondent granting
a wage increase to its employees, the Union con-
sidered itself their bargaining representative and
requested that, before any changes in terms and
conditions be made, Respondent discuss them with
the Union.
Respondent did not contact the Union again with
respect to raises. On July 18, Respondent granted
wage increases retroactive to June 29 in amounts
varying from 10 to 30 cents an hour to 9 of the 13
employees remaining in the unit. Respondent con-
tends that these raises were for the economic pur-
pose of not losing its employees because of its com-
petitively low wages, as stated in the affidavit which
Respondent prepared and had Hite, Barnhart, and
Riedel sign after their conference with Respondent
about wage increases . In support of this contention,
both Clark and Mininni testified that after June 12
or 26 Respondent lost about half of the production
and maintenance employees then on its payroll.
Clark testified that after June 26 Respondent lost at
least half of the 14 production employees then em-
ployed. Mininni testified that, after the wage con-
ference with Hite, Barnhart, and Riedel on June I 1
or 12, Respondent lost over half of its production
employees. On the contrary, Respondent's records,
as prepared by Respondent and introduced by the
General Counsel, establish that after June 12 or 26
Respondent lost only one of the production em-
ployees then on Respondent's payroll. The record
establishes , and I find, that Respondent granted the
wage increases on July 18 pursuant to its promise
to the employees to grant such wage increases if
they voted against the Union, and to induce them
974 DECISIONS OF NATIONAL
to vote against the Union in any rerun election
which might result from its objection. Although
Respondent insisted throughout that it granted
wage increases only on the basis of merit to in-
dividual employees and that it never granted overall
or a substantial number of wage increases at the
same time, the record establishes that all of the em-
ployees, a total of 12, on Respondent's payroll as of
February 1 and still employed through June, except
a new employee hired May 9 and Brotherton, em-
ployed as a plant clerical not actually engaged in
production, received one or the other of the two
pay raises. Seven of the twelve employees received
both increases, three received only the first in-
crease granted June 13, and two received only the
second increase granted July 18.
C. The Adequacy of the Charge
As hereinabove indicated, a subsidiary and
preliminary issue in this proceeding is whether the
allegations of the complaint are sufficiently sup-
ported by the Union's charge, as amended, in the
light of the requirement of Section 10(b) of the Act
that: "Whenever it is charged that any person has
engaged in ... any ... unfair labor practice, the
Board ... shall have power to issue and cause to be
served upon such person a complaint stating the
charges in that respect ...." In the construction of
that requirement, it has long been settled that the
violations alleged in a complaint must be suffi-
ciently related to the allegations of the charge, or
the subject matter thereof, but are not restricted to
the specific violations alleged in the charge. The in-
stant charge, as amended, alleged specific viola-
tions of Section 8(a)(1) and (5) of the Act as well
as a general violation of Section 8(a)(1). The com-
plaint alleged violations of Section 8(a)(1) and (3)
of the Act. The alleged violation of Section 8(a)(3)
was limited to the withholding of previously ap-
proved wage increases . Wage increases were the
specific subject matter dealt with in the Union's
charge. Respondent contends that, because the
charge was limited to promising an increase in pay
to induce the employees to vote against the Union,
other acts of interference, restraint, and coercion,
and a refusal to bargain as to which the Regional
Director refused to issue a complaint, seven of the
nine alleged violations of Section 8(a)(1) and the
alleged violation of Section 8(a)(3) are improper
because they are not "closely related" to the viola-
tions alleged in the charge.
Respondent's contention with respect to the
seven 8(a)(1) allegations of the complaint is
without merit. It is now well settled that a charge
containing a general allegation of acts of inter-
ference, restraint, and coercion in violation of Sec-
' North American Rockwell Corp v N L R B, 389 F 2d 866 (C A 10,
1968), Texas Industries, Inc v NLRB , 336 F 2d 128 (C A 5, 1964)
4 Fn 3,supra
' Fn 3, supra
C M Gunther & Son, Inc , d/bla Pioneer Flour Mills, 174 NLRB 1202
LABOR RELATIONS BOARD
tion 8(a)(1) is sufficient to warrant the inclusion of
any 8(a)(1) allegation in a complaint.3 As the
Court of Appeals observed in the Texas Industries
case:4
It is established that this section [10(b)]
precludes the Board from issuing a complaint
on its own initiative, and that a charge is a
prerequisite to the institution of proceedings
before the Board.... However, the charge is
not a formal pleading, and its function is not to
give notice to the respondent of the exact na-
ture of the charges against him.... This is the
function of the complaint. The charge rather,
serves merely to set in motion the investigatory
machinery of the Board. It is largely for the
benefit of the Board, not the respondent, so
that it may intelligently determine whether and
to what extent an investigation is warranted.
Consequently, the Board has considerable
leeway to found a complaint on events other
than those specifically set forth in the charge,
the only limitation being that the Board may
not get "so completely outside ... the charge
that it may be said to be initiating the proceed-
ing on its own motion ...." [Citations
omitted. ]
As the court of appeals in North American
Rockwell' also noted:
The charge in the case at bar notified the
petitioner that it was faced not only with the
specific violations alleged, but with "other acts
and conduct" which "interfered with,
restrained and coerced its employees in the ex-
ercise of rights guaranteed in Section 7 of the
Act." This language is , to be sure, general, but
it formed a sufficient basis for later specific al-
legations. ... It was noted in Indiana Metal
Products Corp. v. N.L.R.B., 202 F.2d 613, 619
(7th Cir. 1953), that "basing the complaint
upon broad allegations in the charge may well,
at times, be unfair to an employer, but such in-
terpretation is required by the broad language
of Section 10(b).'
With respect to the allegation of discrimination
in violation of Section 8(a)(3) as a result of
withholding approved wage increases although the
charge was limited to allegations of violations of
Section 8(a)(1) and (5), it is well settled that the
complaint may contain allegations related to the
same subject matter as that covered in the charge,
even though the alleged violation involves a dif-
ferent section of the Act. As was recently reiterated
by the Board, the applicable criteria are whether
the allegations of the complaint are "related to and
arose out of the same situation as that conduct al-
leged to be unlawful in the timely filed charges. "6
(1969), and cases cited therein , see also, N L R B v Fant Milling Com-
pany, 360 U S 301 (1959), Truck Drivers and Helpers, Local Union 568,
Teamsters (Red Ball Motor Freight, Inc ), 157 NLRB 1237 (1966), Warren-
Teed Products Co, 138 NLRB 131 (1962), and North Country Motors, Ltd,
133 NLRB 1479 (1961)
GREAT PLAINS STEEL CORP.
In North Country Motors,7 the Board specifically
found an 8 ( a)(3) allegation in the complaint suffi-
ciently related to a charge alleging only violations
of Section 8(a)(1) and (5 ). The two cases relied on
by Respondent in support of its contention are
primarily inapposite inasmuch as the Board and the
court , respectively , found that the allegations of the
complaint were supported by the charge.8 The
charge herein dealt with the subject matter of wage
increases . The violation of Section 8(a)(3) in the
complaint alleged discrimination by the withholding
of approved wage increases from employees
because of their union activities . A major portion of
the entire proceeding was devoted to the subject
matter of wage increases, including their withhold-
ing, promising , and granting . I conclude and find
that the alleged violation of Section 8(a)(3) is suffi-
ciently related to the subject matter alleged in the
charge , and that such allegation comports with the
requirements of Section 10(b) of the Act.
D. Interference , Restraint, and Coercion
The complaint alleged that on or about February
10 Gilmore told employees that previously ap-
proved wage increases were being withheld because
the Union had filed a petition, and that at the April
8 dinner for employees , Gilmore and Mininni told
certain employees that their pay raises were being
withheld because they went to the Union. As
hereinabove found , on or about February 10 Gil-
more told Hite that he had a 10-cent-an-hour wage
increase approved and in the office but that he had
"messed things up" by going to the Union and
Respondent would not be able to release it to him
because of the employees ' union activities. The
record establishes that throughout the period of
time from the filing of the petition on February 3 to
the election on April 25, Gilmore told a number of
employees that their pay raises had been approved
but could not be put into effect because of their
union activities and Respondent 's attorney 's advice
that the granting of such wage increases might be
used as the basis for an unfair labor practice
charge . As hereinabove found , during the conversa-
tions after the dinner on April 8, both Gilmore and
Mininni told various employees that their approved
wage increases were in the office but could not be
released because of their union activities and the
possibility of unfair labor practice charges. Some
employees were told this was on advice of counsel
and others were not. Mininni specifically told Barn-
hart that his raise had come in on a Monday and
that he would have received it if he had not joined
the Union the prior Saturday, February 1. On or
' Fn 6,supra
a N L R B v Pecheur Lozenge Co, Inc, 209 F 2d 393 ( C A 2, 1953),
Casino Operations , Inc, 169 NLRB 328 (1968)
° N L R B v Exchange Parts Co 375 U S 405 ( 1964), Central Freight
Lines, Inc, 179 NLRB 914 (1969), Dorn 's Transportation Co, 168 NLRB
975
about April 17 Clark told Benson that the em-
ployees raises had been approved but could not be
released because of their union activities.
Regardless of whether the first wage increase was
approved in January, or mid-February as con-
tended by Respondent , Respondent admitted that
on frequent occasions between the filing of the
petition and the election it informed various em-
ployees that their raises could not be granted or
released on advice of counsel because of their
union activities , including the filing of the petition,
because of the possibility of unfair labor practice
charges and/or objections to the election . It is well
settled that withholding employees ' wage increases
because of their union activities which otherwise
would have been granted, and so advising them, is a
violation of the Act. The applicable test with
respect to both granting and withholding wage in-
creases under such circumstances is whether or not
they would have been granted in the normal course
of events absent any union activities . In other
words, if a wage increase would have been granted
for sound economic reasons in the normal course of
events, it should be granted in spite of intervening
union activities; and, advising employees that it is
being withheld because of such activities , patently
discourages their union activities and interferes
with, restrains , and coerces them in the exercise of
the rights guaranteed by the Act. On the other
hand, if a wage increase would not have been
granted for sound economic reasons in the normal
course of events, its granting after the commence-
ment of union organizational activities and/or after
the filing of a petition for an election, for the pur-
pose of inducing the employees to vote against the
union and favor their benefactor, likewise interferes
with their guaranteed rights.9
Even if Respondent 's first wage increase had not
received final approval, telling employees that
their wage increases could not be granted because
of their union activities and/or the Union's filing of
a petition clearly interfered with their guaranteed
rights, regardless of any reliance by Respondent on
its counsel's advice . As the Board recently ob-
served:
By withholding salary increases, which it would
have granted had there been no organizing
campaign and so advising its employees, the
Respondent restrained and coerced its em-
ployees and thereby violated Section 8(a)(1)
of the Act. This is so despite the fact that the
Respondent may have believed that it could
not grant any raises because of a pending elec-
tion petition.10
Respondent 's reliance on the decision of the
Board in Standard Coil" and of the court of appeals
457 (1967), McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237
(1966)
10 Dorn's Transportation Co , fn 9, supra
" Standard Coil Products , Inc , 99 NLRB 899 (1952)
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Crown Tar'2 is misplaced. In that older decision,
the Board found that telling employees that a wage
increase was being withheld while an election peti-
tion was pending because of fear of violating the
Act was not a violation of Section 8(a)(1) because
the employer assured the employees that in any
event the wage increase would be granted to all em-
ployees regardless of the outcome of the election.
In Crown Tar the court of appeals found, on facts
substantially similar to and in reliance on the deci-
sion of the Supreme Court in Exchange Parts,13 that
the granting of a wage increase for the specific pur-
pose of inducing the employees to vote against the
union was a violation of Section 8(a)(1). The court
found that Crown had deliberately authorized a
wage increase for the purpose of thwarting the
union's anticipated organizational efforts, but had
withheld such increase until such efforts began
whereupon it was granted for the purpose of induc-
ing the employees to vote against the union.
Because the court stated that Crown "waited until
the organizational effort was under way and then,
while in a position to refrain from granting the in-
crease, and with knowledge of the union's activity
... the increase was made effective," Respondent
contends it was warranted in withholding the in-
crease here and so advising its employees. The
decision of the court was based not on the fact that
the employer was in a position to withhold the in-
crease but on the fact that it granted the increase
deliberately for the purpose of inducing the em-
ployees to vote against the union. Patently any em-
ployer is in a position to withhold an increase at
any time before it is granted and this is not the
criteria applicable to whether such increases should
be granted or withheld. The decision does not stand
for the proposition, urged by Respondent, that an
approved wage increase , which would have been
granted but for the advent of organizational activity
and/or the filing of representation petition, should
be withheld and the employees so advised. I am
satisfied and find that Respondent, by telling its em-
ployees that their approved wage increases, or that
approval thereof which otherwise would have been
granted, were being withheld because of their union
activities or because of the filing of a representation
petition by the Union, interfered with, restrained,
and coerced them in violation of Section 8(a)(1) of
the Act."
As hereinabove noted, the allegation of the com-
plaint concerning the promise of improved in-
surance benefits was dismissed on motion of the
General Counsel at the conclusion of the case-in-
chief. The complaint as amended alleged that
Respondent, by Mininni, threatened its employees
with plant closure if the Union was successful in its
organizing campaign. As hereinabove found, during
the formal speeches after the dinner of April 8,
Tate and perhaps one of Respondent's officials
described instances of companies having gone out
of business or closing their plant as a result of union
organization. During the conversations after these
speeches in a discussion concerning the possibility
of Omsteel closing Respondent's plant in
Cheyenne, Mininni told the employees that Om-
steel had gotten along without Respondent for 50
years and no doubt could do so again if it had to if
things got too tough. Patently this was a not too
subtle prediction that if the Union won the election
Respondent might close its plant, particularly in the
light of the formal speeches. Respondent had made
clear that it was unalterably opposed to the Union
and did not want its employees to support it.
The Supreme Court has recently clarified the
criteria applicable to such predictions with respect
to the question of whether or not they are merely
expressions of opinion within the protection of Sec-
tion 8(c) of the Act or the free speech proviso of
the Constitution, or constitute threats in violation
of the Act.15 The Court stated that an employer
may "make a prediction as to the precise effects he
believes unionization will have on his company. In
such a case, however, the prediction must be care-
fully phrased on the basis of objective fact to con-
vey an employer's belief as to demonstrably proba-
ble consequences beyond his control or to convey a
management decision already arrived at to close
the plant in case of unionization .... If there is any
implication that an employer may or may not take
action solely on his own initiative for reasons unre-
lated to economic necessities and known only to
him, the statement is no longer a reasonable predic-
tion based on available facts but a threat of retalia-
tion based on misrepresentation and coercion, and
as such without the protection of the First Amend-
ment. We therefore agree ... that `conveyance of
the employer's belief, even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most
improbable, the eventuality of closing is capable of
proof.' . . . as stated elsewhere, an employer is free
only to tell `what he reasonably believes will be the
likely economic consequences of unionization that
are outside his control,' and not `threats of
economic reprisal to be taken solely on his own
volition."' (Citations omitted.)
Mininni admitted that he had no knowledge
whatsoever of any consideration of or plan by
management to close the Cheyenne plant, and thus,
in the language of the Court, the eventuality of
such closing was not capable of proof. I am satisfied
and I find that Respondent, by threatening its em-
12 Crown Tar and Chemical Works v N L R B, 365 F 2d 588 (C A 10, union activity which otherwise would have been granted , and withholding
1966) the approval of wage increases because of union activity which otherwise
" Fn 9, supra would have been approved
" As a matter of practical and legal effect , there would appear to be no 'S N L R B v Gissel Packing Company, Inc , 395 U S 575 (1969)
substantial difference between withholding wage increases because of
GREAT PLAINS STEEL CORP.
ployees with possible closure of the plant in the
event the union organization was successful , inter-
fered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
The complaint alleged that Respondent, by
Mininni , at the April 8 dinner promised its em-
ployees pay raises and other benefits if they voted
against the Union. As hereinabove found, the
record establishes that on several occasions
Respondent promised its employees not only that
the wage increases already approved and "in the of-
fice" would be released but that an additional
greater wage increase would be granted if they
voted against the Union in the forthcoming elec-
tion. During his speech at the April 8 dinner,
Mininni stressed the desirability of the employees
negotiating directly with Respondent instead of
through the Union and that they could do better by
doing so. Respondent was well aware that the em-
ployees' primary concern was in securing wage in-
creases . During the ensuing conversations after the
dinner , Mininni told several employees that there
was a dime-an -hour wage increase waiting for them
in the office, and they would do better by going
along with Respondent and that they could receive
an additional greater raise by negotiating directly
with it instead of working through the Union.
Mininni also told Barnhart that he would have
received his previously promised wage increase if
he had not joined the Union just prior to its ap-
proval, and told the employees that if the Union
was not voted in their raises would be released im-
mediately. In addition, Gilmore and Clark told em-
ployees that pay raises had been approved but
could not be released because of their union activi-
ty.
Approximately 30 minutes before the election,
Mininni informed Benson that if the employees
voted against the Union raises for them could be
granted immediately. Benson thereupon informed'
the other employees of this statement before they
voted. Benson understood, and conveyed to the
other employees, that Mininni was promising
another and greater wage increase in addition to
that already approved but not yet released. It is
now well settled that the promising, or the granting,
of wage increases or other benefits during an or-
ganizational campaign or the pendency of an elec-
tion for the purpose of inducing employees to vote
against a union is an unfair labor practice in viola-
tion of Section 8(a)(1) of the Act.16 As
hereinabove noted, the appropriate test is whether
or not such benefits would have been granted for
sound economic reasons in the normal course of
events absent union activities by the employees. If
they would have been, they should be granted and
their withholding discourages such activities in
violation of the Act. If they would not have been
granted for sound economic reasons in the normal
977
course of events absent union activities , but instead
are promised or granted because of such activities
in order to induce employees to vote against their
union or abandon such activities, their promising or
granting is in violation of the Act. The Supreme
Court stated in Exchange Parts:"
We have no doubt that it [Section 8(a)(1)]
prohibits not only intrusive threats and
promises but also conduct immediately favora-
ble to employees which is undertaken with the
express purpose of impinging upon their
freedom of choice for or against unionization
and is reasonably calculated to have that ef-
fect.... "The action of employees with
respect to the choice of their bargaining agents
may be induced by favors bestowed by the em-
ployer as well by his threats or dimination." .. .
the danger inherent in well-timed increases in
benefits is the suggestion 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 beneficience of an em-
ployer is likely to be ephemeral if prompted by
a threat of unionization which is subsequently
removed. Insulating the right of collective or-
ganization from calculated good will of this
sort deprives employees of little that has lasting
value.
I conclude and find that Respondent, by promis-
ing its employees wage increases to induce them to
vote against the Union, violated Section 8(a)(1) of
the Act.
The complaint alleged that Respondent, by
Clark, told its employees that they would receive
wage increases as soon as the Union 's objections to
conduct affecting the election were resolved. The
record contains no evidence in support of this al-
legation , and accordingly I find that the General
Counsel has failed to sustain his burden of proof
with respect thereto.
The complaint alleged that Respondent, by
Mininni , on or about June 12 and on or about July
18, granted pay increases to certain employees in
fulfillment of its promise to do so if they voted
against the Union. As hereinabove found, on or
about June 13, as a result of its prior promise to do
so and after meeting with an employee committee
the preceding day, Respondent released the previ-
ously approved wage increases of 5 and 10 cents an
hour to 10 of the employees in the unit retroactive
to May 5, while the Union's objection to conduct
affecting the election was pending before the
Board. The record establishes, and I find, that
Respondent's purpose was twofold: to fulfill its
promise to its employees to release the previously
approved wage increases if they voted against the
Union, and to induce the employees to vote against
1e N L R B v Exchange Parts Company , 375 U S 405 (1964)
17 Id
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union in the event the Union's objection was
sustained and a second election held.
Before the election, Respondent promised its em-
ployees additional greater wage increases if they
would vote against the Union. On June 26 Lyon in-
formed Clark that according to a Board agent
Respondent could grant a wage increase if it was
for the purpose of retaining employees, and sug-
gested that he get somebody to witness telling the
employees about such a wage increase . Later the
same day Clark had three employees sign a
prepared affidavit including a statement that they
were requesting wage increases so that Respondent
would not lose its good employees. On or about
June 27, Mininni asked Hite if Respondent in ful-
fillment of its prior promise gave everybody a 20-
cent raise in addition to the raise it had already
given would that make all of the employees happy.
On June 27 Clark, in the presence of two of
Respondent's employees, asked Spears to waive the
granting of a wage increase . Although Spears
replied that the Union had no objection, on July 1
Clark received a letter from the
objectio ,
requesting
that before any changes in the employees' terms
and conditions be made they be discussed with the
Union. Respondent did not contact the Union
further. On July 18 retroactive to June 29, Respon-
dent granted wage increases in amounts varying
from 10 to 30 cents an hour to 9 of the 13 em-
ployees remaining in the unit, again while the
Union's objection to conduct effecting the election
was pending before the Board.
Respondent's contentions that the Union waived
Respondent's second wage increase and that it was
justified in granting such increase to prevent the
loss of employees to other employers are without
merit. When Clark, although Respondent allegedly
believed that the Union did not represent its em-
ployees, asked Spears, in the presence of two of the
employees who had been instructed to inform the
other employees, if the Union had any objection to
Respondent's granting a wage increase, manifestly
the Union could do nothing but accede or suffer
the displeasure of the employees and the loss of ad-
herents. Moreover, the Union could not legally
waive the commission of unfair labor practices in-
volving the employees' rights guaranteed by the Act
as distinguished from the Union's rights. If the issue
were one of refusal to bargain, which it is not, then
the Union could under appropriate circumstances
waive its rights. Here Respondent requested the
Union to waive rights of the employees affected by
the granting of the wage increase, specifically and
deliberately in the presence of the employees. In
fact, the Board has held that the mere requesting of
such a waiver is a violation of Section 8(a)(1) of
the Act when done under circumstances -calling the
employees attention thereto. The Board stated:
the Respondent, on its own initiative,
directed the employees' attention to the union
aspect of the matter. We further find that,
through this conduct, the Respondent sought
to discredit the Union and discourage member-
ship therein by announcing a desire to offer
immediate benefits to its employees and then
shifting to the Union the onus for not institut-
ing these benefits. 18
Moreover, the waiver, if such it was, was withdrawn
by the Union long before Respondent granted the
employees the second wage increase. On July 1
Respondent received the Union's letter advising
Respondent that while the Union, as stated orally,
had no objection to Respondent granting the em-
ployees wage increases, it nevertheless represented
the employees and requested that before any
changes in terms and conditions were made
Respondent discuss them with the Union. Respon-
dent did not thereafter contact the Union and did
not grant this wage increase until July 18.
On June 26 Respondent had three employees
sign a prepared affidavit including a statement that
the employees were requesting wage increases to
prevent Respondent from losing good employees,
admittedly for the purpose of formulating or com-
ing up with facts to establish that Respondent was
not guilty of the unfair labor practice charged, after
another employee had informed Clark that accord-
ing to a Board agent a raise could legally be granted
if it were for the purpose of retaining employees. In
support of this apparent afterthought, Clark and
Mininni testified, contrary to Respondent's own
records, that after June 12 Respondent lost at least
half of its employees then in the unit because of low
wages . Respondent's records established that in fact
Respondent lost only one employee then employed.
I find that Respondent granted this second wage
increase pursuant to its prior promise to do so if the
employees voted against the Union, and to induce
them to vote against the Union in the event of a
rerun election as a result of the Union's objection. I
am satisfied and I find that Respondent, by granting
its employees wage increases on June 13 and July
18 to induce them to vote against the Union, inter-
fered with, restrained, and coerced them in viola-
tion of Section 8(a)(1) of the Act.19
The complaint alleged that on or about June 26
Respondent, by Clark, requested employees to sign
affidavits prepared by Respondent disavowing
Respondent's commission of alleged unfair labor
practices. As hereinabove found, on June 26 Clark
called all of the employees to his office individually
and requested them to sign identical affidavits
previously prepared by Respondent's attorney con-
taining Respondent's version of the facts as well as
conclusions and self-serving declarations. While the
employees were informed that the signing was
McCormick Longmeadow Stone Co, Inc, fn. 9, supra
's McCormick Longmeadow Stone Co, Inc, 158 NLRB 1237 (1966), and
Ambox, Incorporated, 146 NLRB 1520 (1964)
GREAT PLAINS STEEL CORP. 979
voluntary , i.e., they did not have to sign if they did
not want to , they were not told the purpose of the
statements and some were not assured that no
reprisals would be taken against them . Respondent
secured these affidavits in connection with its
preparation of a defense with respect to the charges
filed against it . While such a purpose is manifestly
appropriate , the Board has established certain
criteria which must be observed in order to prevent
such employee interviews and statements from in-
terfering with , restraining , and coercing the exer-
cise of their rights under the Act. The Board has
held that in connection therewith the employer
must communicate to the employee the purpose of
the questioning , assure him that no reprisals will
take place , and obtain his participation on a volun-
tary basis . 20 The court of appeals in Neuhoff ap-
proved these criteria . 21 Respondent failed to
comply with two of these criteria . Moreover,
Respondent was not seeking to ascertain the facts
as known by the employees but instead was
requesting them to sign identical affidavits prepared
by Respondent , admittedly consisting of its version
of the facts , designed for the purpose of establish-
ing a defense against the unfair labor practice
charges . The record establishes that some if not all
of the employees signed the statements because of
fear that if they did not Respondent would not
grant them their pending wage increases . George
Riedel , the only employee who refused to sign such
affidavit , did not receive the subsequent wage in-
crease . The employees ' subsequent testimony under
oath at these hearings , relieved of this implicit coer-
cion, revealed that certain of the facts , conclusions,
and self-serving declarations contained in such af-
fidavits were not in fact correct . It is clear that the
obtaining of such affidavits under such circum-
stances interfered with the employees ' right to ad-
ministrative due process in the enforcement of their
Section 7 rights, and their guaranteed right to aid
and assist their Union in the prosecution of its un-
fair labor practice charges . I am satisfied and I find
that Respondent , by securing such affidavits under
such circumstances , interfered with, restrained, and
coerced its employees in violation of Section
8(a)(1) of the Act.
E. Additional Issues
The complaint also alleges that Respondent en-
gaged in the acts of interference, restraint, and
coercion found hereinabove for the purpose of
destroying the Union's majority status and thereby
evading Respondent's obligation to bargain collec-
tively with the Union. As found above, Respondent
specifically promised its employees both of the
wage increases if they voted against the Union, in-
formed its employees that their previously ap-
proved wage increases were being withheld because
of their union activities, including the filing of the
petition, threatened to close the plant if the Union
were successful in organizing, granted both wage
increases for the purpose of inducing the employees
to vote against the Union in any rerun election, and
requested its employees under coercive circum-
stances to sign previously prepared identical af-
fidavits to the effect that Respondent had not en-
gaged in any unfair labor practices. The record
establishes, and I find, that Respondent engaged in
such unfair labor practices for the purpose of
destroying the Union's majority status and thereby
evading Respondent's obligation to bargain with it.
The complaint alleged, Respondent admits, and I
find the following to be a unit appropriate for the
purposes of collective bargaining within the mean-
ing of the Act:
All production and maintenance employees
employed by Respondent at 1720 Pacific
Avenue, Cheyenne, Wyoming, but excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
As hereinabove found, on or about February 1
the Union received signed unambiguous authoriza-
tion cards as well as applications for membership
from 15 of the 20 employees then in the above-
found appropriate unit, all of which cards were
properly authenticated and received in the record.
There is no contention or evidence that such cards
were secured by misrepresentation. I conclude and
find, as alleged in the complaint but denied by
Respondent, that, on or about February 1, the
Union was designated by a majority of the em-
ployees in the appropriate unit as their bargaining
representative and was then and thereafter the ex-
clusive bargaining representative of the employees
in the aforesaid appropriate unit.
F. Discrimination in Hire or Tenure, Terms or
Conditions of Employment
The complaint alleged that , from on or about
February 10 to on or about May 5, Respondent
withheld approved wage increases from its em-
ployees because of their union activities , thereby
discriminating against them in violation of Section
8(a)(3) of the Act. As hereinabove found , Respon-
dent withheld the wage increases approved in
January to be granted on unspecified dates in
February and March from some 10 employees, ad-
mittedly on advice of counsel because of their
union activities, including the filing of the petition.
For the reasons hereinabove detailed, it is well set-
tled and I find that withholding such wage increases
which normally would have been granted but for
the union activities, which admittedly was the
20 Johnnie 's Poultry Co, 146 NLRB 770 (1964)
21 N L R B v Neuhoff Brothers Packers, Inc, 375 F 2d 372 (C A 5,
1967)
427-258 O-LT - 74 - 63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason for their withholding here, discriminated
against the employees as to a term or condition of
employment and discouraged membership in the
Union in violation of Section 8(a)(3) of the Act.22
IV. REPORT ON OBJECTIONS
The objection consolidated for hearing with the
complaint by order of the Regional Director in-
cluded the promise by Respondent between the
dates of the petition and the election of wage in-
creases to the employees if they would reject the
Union in the election, and the granting of wage in-
creases on or about May 5, which occurred after
the election . Based on the above findings of fact
and the entire record herein , I conclude and find
that the Union 's objection has been established and
that Respondent thereby engaged in conduct affect-
ing the results of the election . The Regional
Director 's order directing the consolidation of the
hearings on the objections and the complaint
further directed that thereafter Case 27-RC-3560
be transferred to and continued before the Board.
Inasmuch as my Recommended Order, for reasons
stated hereinafter , provides that Respondent be
required to bargain with the Union , I recommend
that the petition in Case 27-RC-3560 be dismissed
and that all proceedings therein be vacated.23
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce, and the Union is a labor organization,
within the meaning of the Act.
2. By interfering with , restraining, and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. By withholding previously approved wage in-
creases from its employees because of their union
activities , Respondent engaged in discrimination to
discourage membership in the Union , thereby en-
gaging in unfair labor practices within the meaning
of Section 8(a)(3) and ( 1) of the Act.
4. All production and maintenance employees
employed by Respondent at 1720 Pacific Avenue,
Cheyenne , Wyoming, but excluding office clerical
employees , professional employees , guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. At all times on and after February 1, the
Union has been and now is the exclusive
representative for the purposes of collective bar-
gaining of the employees in the above unit within
the meaning of Section 9(a) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action as provided in the Recommended
Order below , which I find necessary to remedy and
remove the effects of the unfair labor practices and
to effectuate the policies of the Act. Although the
complaint did not allege a refusal to bargain, and
none is found, the General Counsel contends, in the
light of the Supreme Court 's recent decision in Gis-
sel Packing Company,24 that a bargaining order is
warranted and indeed required as the only effective
remedy available . The Supreme Court there held
that a bargaining order is warranted when an em-
ployer engages in unfair labor practices so coercive
in nature that , even in the absence of an 8(a)(5)
violation , a bargaining order would be necessary as
the only available effective remedy to repair the un-
lawful effect of those practices because their com-
mission had obviated the possibility of a fair elec-
tion or rerun election . The Court noted that "such
an order would be an appropriate remedy for those
practices ... if they are of `such a nature that their
coercive effects cannot be eliminated by the appli-
cation of traditional remedies, with the result that a
fair and reliable election cannot be had .' ... The
Board itself, we should add , has long had a similar
policy of issuing a bargaining order, in the absence
of a §8 (a)(5) violation or even a bargaining de-
mand, when that was the only available, effective
remedy for substantial unfair labor practices."
The Court went on to point out that the Board had
authority to issue a bargaining order in " less ex-
traordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to
undermine majority strength and impede the elec-
tion processes ." Even in such less extraordinary
cases, where there is a showing that at one point
the union had a majority the Court noted that: "If
the Board finds that the possibility of erasing the ef-
fects of past practices and of ensuring a fair elec-
tion (or a fair rerun ) by the use of traditional
remedies , though present , is slight and that em-
ployee sentiment once expressed through cards
would , on balance , be better protected by a bar-
gaining order , then such an order should issue."
(Citations omitted.)
Since that recent decision , the Board has
frequently followed and elucidated the teaching of
22 McCormick Longmeadow Stone Co , Inc , fn 19, supra.
23 Schuckman Press , Inc, 172 NLRB No 256 ( 1968).
21 N L R B . v Gissel Packing Co , Inc ., 395 U S. 575 (1969)
GREAT PLAINS STEEL CORP.
the Supreme Court.25 In each of the cited cases, the
Board found that a bargaining order was warranted
even in the absence of a violation of Section
8(a)(5). For example, in Heck's, the Board stated:
"The Respondent's relentless campaign to defeat
the Union's organizational efforts included serious
and extensive acts of interferences, restraint, and
coercion against its employees in violation of Sec-
tion 8(a)(1). These unfair labor practices tended to
destroy the Union's majority status achieved by
authorization cards and were so flagrant and coer-
cive in nature as to require, even in the absence of
an 8(a)(5) violation, a bargaining order to remedy
their effect." In Brescome, the Board stated: "We
also further find upon a consideration of the entire
record ... that, apart from the violation of Section
8(a)(5), an order directing Respondent to bargain
with the Union, upon request, is necessary to
remedy the effects of its other unfair labor prac-
tices . The record establishes that the Union had a
majority when the Respondent began its course of
unfair labor practices directed at destroying this
support. The subsequent dimunition of support, as
revealed by the Union's loss in the election, can
only be attributed to Respondent's unlawful con-
duct."
As hereinabove found, the Union secured unam-
biguous signed authorization cards from three-quar-
ters, a substantial majority, of the employees in the
appropriate unit. Thereafter, Respondent engaged
in the flagrant and coercive unfair labor practices
herein found, and the Union lost the election by a
two to one margin , only four employees voting for
it. Patently, as the Board noted, supra, this loss of
the election can only be attributed to Respondent's
unlawful conduct, primarily its promise of wage in-
creases if the Union lost the election. Respondent's
coercive unfair labor practices, including advising
employees that previously approved wage increases
were being withheld because of their union activi-
ties, threatening to close the plant if the Union suc-
ceeded in organizing , promising both the withheld
and additional greater pay raises if the employees
voted against the Union, in any rerun election, the
's E g, Heck's Inc, 180 NLRB 430 (1969), W T Grant Company, 180
NLRB 400 (1969), The Brescome Distributors Corporation, 179 NLRB 787
(1969), and Garland Knitting Mills of Beaufort, South Carolina , Inc , 178
NLRB 396 (1969)
26 The record does not contain the specific date or dates on which the
wage increases approved in January and granted as of May 5 would have
been granted to the individual employees if they had not been withheld
Clark testified that some of the increases would have been granted in Febru-
ary and some in March Absent records, this could be considered a self-
serving declaration Subsequently he changed his testimony to February
through May, which I did not credit On the other hand, other officials and
witnesses of Respondent, including Mmmni , Clark's superior, testified
that the wage increases effective May 5 would have been granted early in
February if they had not been withheld because of the employees' union
activities Gilmore testified that Clark informed him in early January that
the wage increases which had already gone to the home office would have
to be withheld on account of the employees' union activities On or about
February 10, Gilmore told Hite that he had an approved 10-cent-an-hour
raise "in the office" which could not be released because of his union ac-
981
likelihood of which was known, or should have
been known, by Respondent, and requesting em-
ployees, under coercive circumstances, to sign af-
fidavits exonerating Respondent of its unfair labor
practices, obviate the possibility of a fair rerun
election by destroying the Union's majority and
leave a bargaining order as the only effective
remedy. Accordingly I shall recommend a bargain-
ing order. I shall also recommend that the petition
be dismissed and that all proceedings be vacated in
Case 27-RC-3560. I shall also recommend that the
employees be made whole for loss of the wage in-
creases withheld from them until May 5 because of
their union activity by retroactive payment to the
date when such increases would have been granted
but for their union activity.26 Because of the
character and scope of the unfair labor practices
found, I shall recommend a broad cease-and-desist
order.27
Upon the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Great Plains Steel Corp., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that previously ap-
proved wage increases , or that approval thereof
which otherwise would have been granted, are
being withheld because of their union activities or
because of the filing of a representation petition by
their labor organization.
(b) Threatening its employees with plant closure
because of their union activities.
(c) Promising its employees wage increases to
induce them to vote against their labor organiza-
tion.
(d) Granting its employees wage increases to in-
duce them to vote against their labor organization.
(e) Coercively requesting its employees to ex-
ecute previously prepared affidavits or statements.
tivities Roper, who acted as supervisor in Gilmore 's absence , testified that
"everybody" was scheduled to receive a raise around the first of February
when the union activity began , and that Gilmore had told him at that time
that the raises could not be released because of such activity Mininni told
Barnhart that his raise had come in on a Monday , that he had joined the
Union the previous Saturday (February 1), and that he would have
received it if he had not done so In the light of the foregoing it appears
reasonable to conclude that the withheld wage increases would have been
granted on or about February 10 In the event that Respondent 's official
records, which were not produced at the hearing , establish the specific
dates on which each individual named in Appendix A hereof would have
received such wage increase if it had not been withheld , the computation of
such retroactive amounts should of course be from such dates , instead of
February 10, to May 5 The specific dates are not of substantial monetary
significance , inasmuch as the withheld raises amount to only 40 or 80 cents
a day per employee
n N.L.R B. v Express Publishing Company, 312 US. 426 (1941),
NLRB v Entwis le Mfg Co , 120 F 2d 532 (C A. 4, 1941), Consolidated
Industries , Inc , 108 NLRB 60 (1954), and cases cited therein
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Discouraging membership in International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 307,
or any other labor organization of its employees,
by withholding previously approved wage in-
creases or in any other manner discriminating
against employees in regard to hire or tenure of em-
ployment or any term or condition of employment.
(g) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
aforesaid Local 307 as the exclusive representative
of its employees in the appropriate unit found
herein with respect to rates of pay, wages, hours,
and all other terms and conditions of employment,
and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Make each of the employees named in Ap-
pendix A hereof whole for the loss he sustained by
reason of the withholding of the wage increase ef-
fective May 5, 1969, by the payment of the sum of
5 or 10 cents an hour to each as set forth in Appen-
dix A hereof, retroactive to February 10, 1969, or
the date, as shown by Respondent's records, when
such wage increase would have been granted to
each if it had not been withheld, together with in-
terest thereon at the rate of 6 percent per annum
(Isis Plumbing & Heating Co., 138 NLRB 716), less
any tax withholding required by law.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to determine the
amount of retroactive payments due under this
Order.
(d) Post at its plant in Cheyenne, Wyoming, co-
pies of the attached notice marked "Appendix B. 1128
Copies of said notice, on forms provided by the Re-
gional Director for Region 27, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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 it to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 27,
in writing, within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.29
IT IS FURTHER ORDERED that the petition in Case
27-RC-3560 be, and it hereby is , dismissed, and
that all proceedings held in connection therewith
be, and they hereby are , vacated.
APPENDIX A
HOURLY WITHHELD
NAME WAGE INCREASE
Mickey R. Barnhart 10 cents
James N. Benson 10 cents
James E. Clawson 10 cents
Raymond Fresquez 10 cents
Jimmie Lee Hite 10 cents
James R. Kyvig 10 cents
Lewis Gordon Lyon 5 cents
George F. Riedel 5 cents
Frank Roper 10 cents
David Wilson 10 cents
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local 307, or any other labor organization of
our employees, by withholding previously ap-
proved wage increases or in any other manner
discriminating against our employees in regard
to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT tell our employees that previ-
ously approved wage increases, or that ap-
proval thereof which otherwise would have
been granted, are being withheld because of
their union activities or because of the filing of
a representation petition by their labor or-
ganization.
WE WILL NOT threaten our employees with
plant closure because of their union activities.
WE WILL NOT promise our employees wage
increases to induce them to vote against their
labor organization.
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Y° In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 27, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
11
GREAT PLAINS STEEL CORP. 983
WE WILL NOT grant our employees wage in-
creases to induce them to vote against their
labor organization.
WE WILL NOT coercively request our em-
ployees to sign previously prepared affidavits
or statements.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of any of the rights guaranteed them
by the National Labor Relations Act.
WE WILL, upon request, bargain collectively
with the aforesaid Local 307 as the exclusive
representative of our employees in the ap-
propriate unit noted below with respect to
rates of pay, wages, hours, and all other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such un-
derstanding in a signed agreement . The ap-
propriate unit is:
All production and maintenance em-
ployees employed by us at 1720 Pacific
Avenue, Cheyenne, Wyoming, but exclud-
ing office clerical employees, professional
employees, guards and supervisors as
defined in the Act.
WE WILL make Mickey Barnhart, James
Benson , James Clawson, Raymond Fresquez,
Jimmie Lee Hite, James Kyvig, Lewis Gordon
Lyon, George Riedel, Frank Roper, and David
Wilson whole for the loss each sustained by
reason of our withholding of the wage increase
effective May 5, 1969, by the payment of the
sum of 5 cents an hour to Lyon and Riedel and
10 cents an hour to each of the others retroac-
tive to February 10, 1969, or the date, as
shown by our records, when such wage in-
crease would have been granted to each if it
had not been withheld.
All of our employees are free to become or
remain, or refrain from becoming or remaining,
members of the above-named or any other labor or-
ganization.
Dated By
GREAT PLAINS STEEL
CORP.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, New Custom House, Room 260,
721 19th Street, Denver, Colorado 80202,
Telephone 297-3551.