Nissan Motor Corporation in U.S.A.

National Labor Relations Board - Board Decisions

Aug 23, 1980

263 N.L.R.B. 635 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nissan Motor Corporation in U.S.A. and Interna-
tional Union, United Auto Workers, Region No.
5. Case 27-CA-6960
August 23, 1980
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On March 19, 1982, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and the Re-
spondent filed an answering brief.
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,' and conclusions 2 of the Administrative Law
Judge and to adopt his 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
I In adopting the Administrative Law Judge's findings of independent
8(aXI) violations, to which no exceptions have been filed, we do not pass
on his discussion of Regal Tube Company, 245 NLRB 968 (1979). Includ-
ed in the Administrative Law Judge's unexcepted-to 8(aXI) findings are
his findings on several alleged interrogations. In adopting these findings,
pro forma, Chairman Van de Water and Member Hunter do not thereby
subscribe to the Administrative Law Judge's reliance on PPG Industries.
Lexington Plant. Fiber Glass Division, Inc.. 251 NLRB 1146 (1980).
a We adopt the Administrative Law Judge's conclusion that Respond-
ent did not violate Sec. 8(aX3) and (1) of the Act by withholding regular-
ly scheduled benefits from unit employees following the election of the
Union as their exclusive representative. However, we find Shell Oil Com-
pany. Incorporated and Hawaii Employers' Council. et al, 77 NLRB 1306
(1948); Sun Oil Company of Pennsylvania, 245 NLRB 59 (1979); and
Empire Pacific Industries. Inc., 257 NLRB 1425 (1981), on which the Ad-
ministrative Law Judge relied, distinguishable from the instant case.
Thus, in Shell Oil, the Board found that the employer did not violate the
Act at a time when negotiations were impending with a newly certified
union when it decided to implement unscheduled and "fortuitous"
changes in wages and hours. Further, unlike here, Sun Oil and Empire
Pacific involved the failure to grant benefits to union-represented employ-
ees while giving such benefits to other employees in the context of an
ongoing collective-bargaining relationship. Nevertheless, we adopt the
Administrative Law Judge's dismissal of the 8(aX3) and (1) allegation. In
so doing, we emphasize the unusual facts of this case, particularly the ab-
sence of any 8(aX5) allegation, the fact that the parties engaged in collec-
tive-bargaining negotiations with no showing by the General Counsel
that the parties did not negotiate on wages, and the absence of evidence
that Respondent used the withholding of the wage increases to under-
mine employee support for the Union or made comments implying that
the Union or the employees' selection of the Union as representative was
the cause of the withholding. Finally, we do not rely on the Administra-
tive Law Judge's finding that, by electing the Union as their representa-
tive, the employees had become ineligible for wage increases under Re-
spondent's nonexempt wage program, applicable to "non-union ware-
house classifications."
hereby orders that the Respondent, Nissan Motor
Corporation in U.S.A., Denver, Colorado, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Denver, Colorado, on
October 27, 1981. On November 26, 1980,' the Regional
Director for Region 27 of the National Labor Relations
Board issued a complaint and notice of hearing, based on
an unfair labor practice charge filed on October 14 and
amended on October 22, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq., herein called the Act.
Thereafter, a second amended charge was filed on De-
cember 3 and on January 9, 1981, the said Regional Di-
rector issued an amendment to complaint, alleging an ad-
ditional violation of Section 8(a)(1) of the Act. Thereaf-
ter, pursuant to a notice of intent to amend complaint,
issued on October 15, 1981, counsel for the General
Counsel further amended the complaint at the hearing to
allege additional violations of Section 8(a)(l) of the Act.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based upon the entire
record, upon the briefs filed on behalf of the parties, and
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Nissan Motor Corporation in
U.S.A., herein called Respondent, has been a corpora-
tion, duly organized under and existing by virtue of the
laws of the State of California, which maintains an office
and distribution center in Denver, Colorado, where it en-
gages in the distribution of automobile and truck parts.
In the course and conduct of these business operations,
Respondent annually purchases and receives goods and
materials valued in excess of S50,000 directly from points
and places outside the State of Colorado. Therefore, I
find, as admitted in the answer, that, at all times material,
Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Union, United Auto
Workers, Region No. 5, herein called the Union, has
been a labor organization within the meaning of Section
2(5) of the Act.
Unless stated otherwise, all dates occurred in 1980.
263 NLRB No. 83
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues Presented
On August 22, the representation petition in Case 27-
RC-6096 was filed. On October 2, 10 of 16 employees in
the bargaining unit of warehouse operators employed at
Respondent's Denver facility2 voted in favor of repre-
sentation by the Union. On October 10, a Certification of
Representative issued, certifying the Union as the exclu-
sive representative of all employees in that unit. It is al-
leged that, prior to the election, Respondent violated
Section 8(a)(1) of the Act, on various occasions and
through various admitted supervisors,3 by coercively in-
terrogating employees, by soliciting employee grievances
with an implied promise of correction, and by threaten-
ing that employees would not be considered for transfer
to another position because of the Union's organizing
campaign. Respondent denies that it committed any
unfair labor practices prior to the election and, further,
denies that it is responsible for any unlawful statements
made by the supervisors enumerated in footnote 3, supra.
Moreover, Respondent asserts that its preelection state-
ments were so innocuous that, even if unlawful and even
if it is responsible for them, issuance of a remedial order
is not warranted. Further, it moves to dismiss those alle-
gations on the ground that, following negotiation of a
collective-bargaining agreement with Respondent, the
Union had requested that its unfair labor practice and
charges be, in effect, withdrawn insofar as they were
concerned, but that the Regional Director had refused,
improperly according to Respondent, to approve their
withdrawal.
It is alleged further that Respondent violated Section
8(a)(3) and (1) of the Act by denying scheduled semian-
nual salary raises and progression raises to unit employ-
ees on October 6. In this respect, it is not disputed that,
following the Union's victory in the October 2 election,
and aware that it did not intend to contest that victory
by filing objections, Respondent had decided not to
grant wage increases to warehouse operators in the bar-
gaining unit. However, Respondent denies that its motive
for doing so had been one proscribed by the Act.
Rather, it contends that it had done so because it was
aware that those employees had selected a bargaining
representative, that bargaining would commence shortly
for a collective-bargaining agreement, that wages was
one of the subjects concerning which Respondent would
have to bargain with the Union, and that it feared that it
a The unit as described if the representatign proceeding is:
All warehouse employees employed by Nissan Motor Corporation in
U.S.A. located at 11000 East 45th Avenue, Denver, Colorado; ex-
cluding confidential employees, office clerical employees, profession-
al employees, guards and supervisors as defined in the Act.
3 Respondent admits that, at all times material, Ron D. Cabibi has been
its director of employee relations; Keith Duckworth has been its security
manager; Robert David has been its national parts administrative man-
ager; Craig Legget has been its western states area parts manager; Wil-
liam Green has been its Denver regional parts manager; and Greg Webb
had been its Denver warehouse supervisor. Further, Respondent admits
that, at all times material, each of these persons has been a supervisor
within the meaning of Sec. 2(11) of the Act. However, Respondent
denies the further allegation that, at all times material, each of these indi-
viduals has been its agent within the meaning of Sec. 2(13) of the Act.
would be charged with commission of an unfair labor
practice if it did so.
B. The Facts
For the most part, the facts underlying the issues pre-
sented in this case are not disputed. Prior to the filing of
the representation petition, a survey had been conducted
among, at least, the warehouse operators employed in
Denver. In early September, Cabibi, Duckworth, and
David, at least, had journeyed from Respondent's Comp-
ton, California, headquarters to the Denver facility to
report the results of that survey to employees located
there. So far as the record discloses, this had been the
first occasion when the Denver warehouse operators had
encountered those officials. Following their arrival, the
Compton officials, along with Green, met with the ware-
house employees and explained the purpose of their visit.
According to Warehouse Operator Kip Cavey, during
the course of that explanation Respondent's officials
"told us that they were there about the survey that they
had taken earlier and they wanted to find out what some
of the problems were that they were having and that
they were going to take care of them and get things set-
tled back to down to where they should be." Then, Re-
spondent's officials invited the employees to ask any
questions concerning matters of interest to them. In re-
sponse to a question regarding whether "there would be
any recoursive [sic] action taken against any of the em-
ployees for union activity," Cabbi had announced "no,
that there would not be any recoursive action taken."
Warehouse Operators Cavey and Matthew Baldwin both
described a question, by employee Dan Lewis, concern-
ing Respondent's intention with regard to filling a vacan-
cy for in-house parts representative that then existed.4
Both Baldwin and Cavey testified that the response to
Lewis' question simply had been that Respondent would
not be filling the position at that time because the Union
might consider doing so a bribe or favoritism toward the
employee who was transferred to it.
Like Baldwin, Cavey also described a separate conver-
sation regarding the in-house parts representative posi-
tion, only in his case it had been with both Green and
Western States Area Parts Manager Legget. According
to Cavey, in late September, during a break period, he
had encountered the two management officials coming
into the warehouse and had inquired concerning the
vacant position. Green, testified Cavey, had replied that
"they couldn't give me the job and it would depend on
how the vote came out on whether I would get the job
or not." Further, Cavey testified that, toward the end of
The in-house parts representative position is a nonunit one which, in
essence, involves serving as, according to Green, "a communications link
concerning orders and problems solving for the dealer body." While a
warehouse operator transferring to that position probably would incur an
initial reduction in pay, because the entry level rate is lower than most
warehouse operators are paid, appointment as an in-house parts repre-
sentative presents the possibility of advancement to higher level positions
that are compensated at a higher rate than the position of warehouse op-
erator. In this fashion, appointment as an in-house parts representative
provides an employee with the benefit of potential advancement to a
higher rated position than would be possible if that employee remained
classified as a warehouse operator.
636
NISSAN MOTOR CORPORATION IN U.S.A.
the conversation, Legget had "asked me how I thought
the vote would go again and . . . I told them an answer
of 13 to to [sic] 3, and they both just kind of looked
down and the conversation was over." 6
Green testified that, when Greg Webb had been pro-
moted to warehouse supervisor in August, an in-house
parts representative vacancy had been created. However,
he testified further, following the posting period for that
vacancy, Respondent had decided not to fill the position
until after the election inasmuch as both Cavey and Bald-
win had applied for it, leaving Respondent in
. . a no-win situation in that if we, in fact, hired
an applicant from the warehouse, it could be con-
strued as possibly an unfair labor practice in that we
were reducing the total number of people in the
warehouse by one. If we did not, the reverse could
be held true, that we were discriminating against a
potential union member by not hiring him.
Consequently, testified Green, "the only alternative we
felt was available to us was to postpone any decision on
filling the position until after the election and the poten-
tial of an unfair labor practice." Green agreed that there
had been an occasion, shortly before the election, when
he and Legget had participated in a discussion of this
issue with Cavey. According to Green,
Prior to Mr. Cavey approaching me, he and Mr.
Baldwin were discussing something of which I was
not aware of and they made the comment that-Kip
made the comment that he was going to ask and
came over and proceeded to ask basically what the
status was of the position, why they weren't being
considered, and I explained to him what I had men-
tioned previously, that we were going to postpone
the decision on the grounds of the potential unfair
labor practice.
Green denied ever having stated to Cavey that the deci-
sion regarding who would be selected to fill the vacancy
depended upon the vote in the election. However, Green
did not deny that Legget had concluded the conversa-
tion by questioning Cavey regarding the degree of con-
tinued employee support for the Union.
Remarks concerning the in-house parts representative
position were not the only ones alleged to have been
made, by Respondent'; officials, in violation of the Act.
As noted above, Cavey described a conversation with
Legget, prior to the late September one with Green and
Legget. It is undisputed that Cavey had been summoned
to the office between September 8 and 12 where, during
a discussion of warehouse employee problems, Legget
had asked, "How do you think the vote will go?" After
Cavey had replied "about 15 to 1" in favor of the Union,
Legget "got kind of a glum look on his face and he says,
'I hope you'll vote for the Company."' Similarly, it is un-
disputed that, toward the end of September, Baldwin had
been asked by Security Manager Duckworth "if we
I As described below, Cavey testified that Legget had directed a simi-
lar question to him (Cavey) during a previous conversation.
voted that day, what [Baldwin] thought the outcome of
the vote would be."6
Questioning of a somewhat different nature was attrib-
uted to Duckworth by Warehouse Operator Shirley
Meister. She testified that in late September, he had
come to her work station, had initiated a discussion of
various problems, and had pointed out that most of the
warehouse employees were only "kids who didn't realize
what they were getting into by bringing the Union into
the Company." According to Meister, Duckworth then
had enumerated "different pros and cons" of unionizing,
in the process observing "that the Union could not help
us and that they would not back us and that the Compa-
ny could not work as close with us having the Union in
there [and] if the Union was not there, the Company
could work closer with us." Then, testified Meister,
Duckworth had asked why she felt that she needed a
union and she had replied to obtain job security because
of her age and because she felt that, as a volunteer orga-
nizer, she would be among the first ones fired if the
Union did not prevail in the election. She testified that,
in response, Duckworth had tried to reassure her that
she would not be fired, in the process asking if a letter of
assurance from Respondent's president would satisfy her
concern. According to Meister, when she had replied
that it would not, Duckworth then had asked, "Well,
what would the Company have to guarantee you to keep
you from voting union?" she replied, "nothing." Meis-
ter's description of this conversation was not contradict-
ed.
Finally, with regard to questioning, Mary Connie
Gonzales, then senior secretary for the parts department,
testified that, during a casual conversation in the lunch-
room prior to commencement of work on the day of the
election, Webb had asked her how Ed Cisneros, her boy-
friend and one of the warehouse employees, "was going
to vote or do that day," and that she had replied that she
did not know. Webb denied having participated in any
conversation with Gonzales on the day of the election
and denied having ever asked her how Cisneros was
going to vote. However, he conceded that, during lunch
shortly before the election, he had sat down with her in
the lunchroom and had asked her how she thought Cis-
neros felt about Respondent, how she felt toward the
Union and how she thought the vote was going to go.
In a different vein, it is undisputed that, a couple of
days after the early September meeting with employees,
Baldwin had been summoned to the office where Cabibi
had said that he wanted to get to know Baldwin and
would be talking individually with everybody to ascer-
tain the various problems, after which he would be meet-
ing with the members of management "to see about cor-
recting the problems in the warehouse." After the two
6 This conversation had been initiated when Baldwin had been sum-
moned to the office where he had been shown collective-bargaining
agreements with certain other employers; had been told that in the case
of one of them, the employees had gone out on strike but had "only re-
ceived 5 cents more in this bargaining"; and had been told by National
Parts Administrative Manager David, who also had been present, "that it
was not worth all the time'and negotiating and the strike that they had
gone to to receive that 5 cents more and that's what we were looking
for."
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men had discussed various problems, such as unsafe con-
ditions, supervisors, and the need for warehouse expan-
sion,
Cabibi said [sic] that the changes and corrections in
the warehouse would be done and that it would
take some time and that he hoped that the employ-
ees would believe that it would be changed and that
whether---that an employee was better represented
by himself than by a third party and that the
changes would take place.
With regard to the alleged postelection violation of
Section 8(a)(3) and (1) of the Act, the parties entered
into certain stipulations which served to focus the issue
presented: Prior to the election, pay scales for unit em-
ployees had been based on Respondent's nonexempt rate
schedule for nonunion warehouse classifications; those
schedules provide that warehouse operators progress
automatically from step to step within classification, "on
the first Monday of each successive April and October,
unless such progression is deferred due to justified action
documented in writing"; during the 5-year period prior
to the election, those schedules had been revised semian-
nually to provide pay increases in at least some portions
of the rate progression schedule; over the course of that
same 5-year period, all unit employees had received
wage increases in accordance with that schedule; because
the Union had won the election on October 2 and inas-
much as Respondent did not intend to file objections,
Cabibi had made the decision not to proceed with in-
creases which would otherwise have been granted to
unit employees effective October 6; and, as part of the
bargaining process leading to an agreement between the
Union and Respondent, the latter agreed, in a separate
side agreement, to pay a $50 special one-time payment to
each unit employee on the payroll during the time that
the discussions had occurred.
C. Analysis
As set forth above, there were five occasions when
employees were asked questions that allegedly violated
Section 8(a)(1) of the Act: between September 8 and 12,
in the office, when, during the course of a discussion
pertaining to warehouse problems, Legget had inquired
how Cavey thought the vote would go and had said that
he hoped that Cavey would vote for Respondent; in late
September, when, following a discussion of pros and
cons of unionization. warehouse operator Meister had
been asked by Security Manager Duckworth why she
felt that she needed a union, whether a letter from Re-
spondent's president would allay her concerns regarding
job security and what could Respondent do to keep
Meister from voting for the Union; in late September, in
the office, when Duckworth had asked, following a
review of various collective-bargaining agreements, what
Baldwin "thought the outcome of the vote would be"; in
late September, after a conversation concerning filling
the vacant in-house parts representative position, when
Legget had asked how Cavey "thought the vote would
go"; and, in late September, when Webb questioned
Gonzales about her sympathies and those of Cisneros,
and about the election outcome. 7 Although, as Respond-
ent points out in its brief, interrogation is not a per se
violation of the Act, nevertheless when it pertains to
union sympathy and affiliation it has a natural tendency
to create employee fear of discrimination and to present
a danger of coercion of employees. See, e.g., World Wide
Press, Inc., 242 NLRB 346, 362-363 (1979), and cases
cited therein.
Here, neither Legget nor Duckworth was called as a
witness. Accordingly, there is no testimony explaining
their reasons for having questioned Baldwin, Cavey, and
Meister. While Webb did testify, he did not explain his
reasons for having posed the questions that he admittedly
directed to Gonzales. Nor has it been shown that Re-
spondent would have had a legitimate interest in know-
ing the information sought by these questions under the
circumstances presented in the instant case. To the con-
trary, while it can be speculated-absent testimony by
Legget, Duckworth, and Webb-that Respondent's offi-
cials merely had been displaying normal curiosity, Duck-
worth's questions to Meister hardly are encompassed
within the realm of "normal curiosity." For he had initi-
ated a conversation with her in which he had expressly
asked her why she felt that she needed a union, if a letter
of assurance from Respondent's president would allay
her concern about job security and, finally, "what would
the Company have to guarantee . . . to keep [her] from
voting union?" Such inquiries hardly are innocuous.
Rather "inquiries of this nature constitute probing into
employees' union sentiments which . . . reasonably tend
to coerce employees .... even in the absence of threats
of reprisal or promises of benefit . . . [by] convey[ing]
an employer's displeasure with employees' union activity
.... " PPG Industries. Inc., Lexington Plant, Fiber Glass
Division, 251 NLRB 1146, 1147 (1980); see also Grandee
Beer Distributors, Inc. v. N.L.R.B., 630 F.2d 928, 932 (2d
Cir. 1980). Similarly, the questions directed to Baldwin
and Cavey, regarding the outcome of the election, and to
Gonzales, regarding specifically her own and Cisneros'
sympathies, as well as how she thought the election
would turn out, leave the obvious impression that the
questioner is seeking to ascertain the extent of the
Union's strength among employees and, further, is seek-
ing "information that could be used by Respondent to
discourage or prevent by both lawful and unlawful
means the unionization of those employees." Brooks
Cameras, Inc., 250 NLRB 820, 821 (1980). Significantly,
in none of the conversations was it explained to the em-
ployees why they were being questioned in this manner.
See, e.g., Hedstrom Company v. N.L.R.B., 629 F.2d 305
(3d Cir. 1980). Consequently, viewed from the standpoint
of the employees, N.LR.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 617 (1969), Respondent was seeking infor-
mation for "purposes that could only seem ominous."
N.LR.B. v. Aero Corporation, 581 F.2d 511, 514 (5th Cir.
1978).
In view of Webb's admission concerning the questions that he had
asked Gonzales, it is unnecessary in the circumstances presented here to
resolve whether or not Webb had explicitly asked Gonzales how she felt
that Cisneros would vote on the morning of the election.
638
NISSAN MOTOR CORPORATION IN U.S.A.
Although the employees candidly answered the ques-
tions put to them, most of the questioning that occurred
here was not conducted by low-level supervisors, nor
even by supervisors who, so far as the record discloses,
ordinarily dealt with and supervised the work of the em-
ployees who were questioned. Rather, most of it was
conducted by Respondent's western states area parts
manager and by its security manager. Cf. Federal-Mogul
Corporation v. N.L.R.B., 566 F.2d 1245 (5th Cir. 1978).
True, Meister and Cavey during the late September con-
versation had been questioned in their work areas. Yet,
the questioning of Baldwin and of Cavey in mid-Septem-
ber had taken place in the privacy of Respondent's
office, during conversations occurring when each of
these employees had been summoned there from his
workplace. Cf. Id.
The questioning of Meister was followed by a specific
promise to cure a major concern that she stated had been
motivating her to support the Union and, then, by a fur-
ther question regarding what steps Respondent might
take to persuade her not to vote for the Union. No simi-
lar express efforts to correct employee concerns accom-
panied the questioning of Baldwin and Cavey. However,
both of them were applicants for the vacant in-house
parts representative position which Respondent was de-
ferring filling until after the election. It is, of course, ac-
curate that, during the early September meeting with
warehouse operators, Cabibi had assured them that no
"recoursive action" would be taken against them for
union activity. Nevertheless, employees are not obligated
to accept such a generalized pledge when confronted by
questions, as set forth above, of an inherently coercive
nature, asked during subsequent private conversations
with high-level management officials, with whom, for
the most part, the employees had had no prior acquaint-
ance. Consequently, in addition to the inherent tendency
of the questions to convey Respondent's displeasure with
unionization, Baldwin's and Cavey's situation as appli-
cants for that position carried an inherent compulsion to
answer the questions put to them, thereby disclosing the
extent of their coworkers' ongoing support for the
Union. Indeed, in not one of these individual conversa-
tions did Respondent's officials assure the questioned em-
ployee that he or she could decline to answer the ques-
tions being put to them, nor, so far as the record dis-
closes, was there a specific renewal of Cabibi's earlier as-
surance against reprisals. See, e.g., Clear Pine Mouldings
Inc. v. N.L.R.B., 632 F.2d 721, 725 (9th Cir. 1980);
World Wide Press, supra, and cases cited therein; cf.
FC.F Papers, Inc., a Division of The Mead Corporation,
211 NLRB 657 (1974).
Therefore, I find that Respondent's questioning of
these employees interfered with their exercise of Section
7 rights and thereby violated Section 8(a)(X) of the Act.8
8 It is accurate that Alley Construction Company. Inc., 210 NLRB 999
(1974), and Regal Tube Company, 245 NLRB 968 (1979), included conclu-
sions that the employers there did not engage in improper conduct when
they asked employees for their opinions about election outcomes. How-
ever, in Alley Construction, there were but two instances where such
questions had been directed to employees, whereas here, such questions
were directed to employees, in a much smaller bargaining unit, on four
occasions over the course of almost a I-month period prior to the Octo-
ber 2 election. Moreover, on one of the occasions in Alley Constructrion,
The complaint alleges also that Respondent violated
the Act when Cabibi had solicited grievances during his
private conversation with Baldwin, following the general
meeting with warehouse employees on September 5, and,
additionally, when Green had solicited employee griev-
ances from Baldwin during their mid-September conver-
sation. As set forth above, in both conversations Re-
spondent's officials had inquired about the specific prob-
lems in the warehouse and Cabibi had said expressly that
he hoped that the employees would believe that changes
would be made. Based upon these conversations, the
General Counsel argues that Respondent solicited em-
ployee grievances in the midst of an organizing cam-
paign and that, absent a showing that it "previously had
a practice of regularly soliciting employee grievances or
complaints," Respondent violated Section 8(a)(1) of the
Act. However, these remarks cannot be analyzed so
simply.
"It is firmly established that an employer violates sec-
tion 8(a)(1) by his solicitation of grievances, if accompa-
nied by an express or implied promise to remedy the
grievance if the union is rejected in the election."
N.L.R.B. v. Garry Manufacturing Company, 630 F.2d
934, 943 (3d Cir. 1980). Accord: N.L.R.B. v. Delight
Bakery, Inc., 353 F.2d 344, 345 (6th Cir. 1965). However,
so far as the evidence shows, the survey which had led
to these questions regarding warehouse problems had
been decided upon and conducted prior to the filing of
the representation petition and prior to the time that Re-
spondent had learned of the organizing campaign. Conse-
quently, based upon the record in this matter, there is no
basis for concluding other than that "the survey was
conceived for legitimate business reasons and was not de-
signed in response or opposition to the Union's organiz-
ing effort." Leland Stanford Jr. University, 240 NLRB
1138, fn. I (1979). As set forth above, in describing the
September 5 meeting, Cavey testified that Cabibi had an-
nounced specifically that, having reviewed the survey re-
sults, the Compton officials had come to Denver "to find
out what some of the problems were that they were
having and that they were going to take care of them
.... " Neither in the complaint nor in the brief filed on
behalf of the General Counsel is it alleged or argued that
these promises by Cabibi violated the Act. Nor does the
General Counsel argue that further investigation of the
problems disclosed by the survey had not been contem-
plated by Respondent at the time that it had made the
decision to conduct it. Consequently, so far as the evi-
the questioning supervisor expressly had assured the questioned employee
that "he should vote the way he wanted but be sure to vote" (id. at
1006). Not only is a similar specific assurance absent in each of the inci-
dents presented in the instant case, but as part of his separate questioning
of Meister, Duckworth expressly had attempted to ascertain what Re-
spondent could do to persuade her to vote against representation.
In Regal Tube, the administrative law judge simply dismissed the alle-
gation pertaining to the question about how an employee "thought the
election would go," without providing any analysis or explanation of his
underlying reasons. While the General Counsel filed cross-exceptions in
that case, there is no indication whether the Administrative Law Judge's
conclusion regarding that question had been one of the items to which
cross-exceptions had been taken. Consequently, there is no basis for con-
cluding that the Board actually reviewed and affirmed that particular
conclusion.
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence and arguments show, the trip by the Compton of-
ficials to Denver and their efforts to secure information
concerning warehouse employees' specific problems had
been a natural outgrowth and continuation of a process
planned and set into motion before Respondent had
learned of the organizing campaign. Obviously, the Act
permits Respondent to continue that process notwith-
standing the filing of the petition inasmuch as "an em-
ployer must proceed with the withholding or granting of
benefits as it would have done had the union not been
conducting an organizational compaign." J. J. Newberry
Co., a Wholly Owned Subsidiary of McCrory Corporation,
249 NLRB 991, 992 (1980), enfd. as modified 654 F.2d
148 (2d Cir. 1981).
However, in conducting the individual interviews with
Baldwin and Cavey arising from the survey process, Re-
spondent's officials made certain remarks concerning the
changes and the Union. Thus, Cabibi had said that the
changes would occur and that he hoped that the employ-
ees would believe that they would take place. Further,
he had said that he believed that an employee was better
represented by himself than by a third party. During his
mid-September conversation with Baldwin, Green also
had said that he felt an employee was better represented
by himself than by a third party and that he hoped that
the employees would put their trust in Respondent and
vote that way. Of course, an employer is free to express
the opinion that employees would be better off without
representation and to appeal for the support of its em-
ployees in a representation election. See, e.g., Howard
Johnson Company, 242 NLRB 386 (1979). Moreover, an
employer is free to inform "its employees of their present
benefits during an election campaign. Philips Medical Sys-
tems, Inc., 243 NLRB 944, fn. 4 (1979); accord: Pace
Oldsmobile, Inc., 256 NLRB 1001 (1981). Of course, Re-
spondent's plan to make changes, as a result of the
survey process, constitutes a benefit for its employees.
True, in their conversations, Respondent's officials were
speaking of undetermined changes in employment condi-
tions, rather than describing already existing employment
terms or contemplated specific changes in employment
term. Yet, this ambiguity arose not because of the peti-
tion and election process. Rather, it arose because the
election petition had been filed in the midst of a survey
process that, so far as the record discloses, had been in-
tended to uncover and lead to corrections in employ-
ment conditions with which the warehouse operators
were dissatisfied.
Consequently, in their remarks to Cavey and Baldwin,
Cabibi and Green, respectively, were doing no more
than pointing with pride to an already implemented
process as a basis for seeking support in the representa-
tion election. At no point in either of the conversations
relied upon by the General Counsel can it be said that
Respondent's officials had promised to alter the course of
the survey process because of the petition. Nor is there
evidence that the statements by Cabibi and Green would
lead an employee to conclude that these changes, in defi-
ciencies disclosed by the survey and interview process,
"would be forthcoming only if he rejected the Union."
Edmund Homes, Inc., 255 NLRB 809, 815 (1981). There-
fore, I conclude that the remarks of Cabibi and Green in
these conversations did not constitute violations of Sec-
tion 8(aX)(1) of the Act.
Notwithstanding the foregoing analysis of Cabibi's and
Green's conversations, it is clear that there was a solici-
tation of grievances and a promise to remedy them
during Duckworth's conversation with Meister. Thus, as
set forth above, he expressly had asked her why she was
supporting the Union. In response to her expression of
concern regarding job security he first had expressly of-
fered to secure a letter of assurance from Respondent's
president and then had asked for Meister's opinion as to
what Respondent could do "to keep [her] from voting
union." Thus, not only did Duckworth solicit her griev-
ance, but he also made express offers in an effort to at-
tempt to correct the one she identified in an effort to
persuade her not to vote for the Union. His remarks
were not, so far as the record discloses, a part of the
survey process that was then in progress. There is no
evidence that Respondent had shown a previous con-
cern, unrelated to the survey process, with employee
concerns and grievances. Accordingly, in his remarks to
Meister, Duckworth had exuded "a previously undemon-
strated solicitude for communicating with [her] and
meeting [her] problems .... " N.L.R.B. v. Delight
Bakery, Inc., 353 F.2d 344, 345 (6th Cir. 1965). There-
fore, I find that by his questioning and express promise
to Meister, Duckworth engaged in conduct proscribed
by the Act.9
Finally, with regard to the preelection conduct, it is
undisputed that Respondent withheld selection of a re-
placement for Webb, as in-house parts representative, to
preclude any possible accusation of interference with the
scheduled election. Ordinarily, where an employer with-
holds benefits increases'° because of "the presence of the
union and pendency of the election and advise[s] em-
ployees that their . . . increases [are] being withheld for
this reason," it violates Section 8(a)(1) of the Act. The
Gates Rubber Company, 182 NLRB 95 (1970). Accord:
Hydro Conduit Corporation, 240 NLRB 48, fn. I (1979).
Further, statements telling employees that benefits are
being withheld for these reasons have "the obvious effect
of discouraging employees from exercising their right to
organize and bargain collectively." N.L.R.B. v. Otis Hos-
pital, 545 F.2d 252, 255 (Ist Cir. 1976).
"However, where employees are told expected benefits
are to be deferred pending the outcome of an election in
order to avoid the appearance of election interference,
9 Although this finding pertains to a matter not alleged in the com-
plaint and which, in his brief, the General Counsel does not contend
should be the basis for a finding of unlawful solicitation of grievances and
promises of correction, it is a matter which was related to those alleged
in the complaint, occurred during the same time period as other matters
alleged in the complaint, was "fully litigated at the hearing," and was one
concerning which "Respondent had ample opportunity to offer ... evi-
dence ... . Seemingly, therefore, the Board now deems such situations
to require that an appropriate remedy be provided. Alexander Dawson.
Inc d/b/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977),
enfd. 586 F.2d 1300 (9th Cir. 1978); contra: Medicine Bow Coal Company,
217 NLRB 931, fn. 2 (1975).
"0 As set forth in fn. 4, supra, appointment to the position of in-house
parts representative was viewed as a benefit by the employees because of
the potential for promotion to higher rated positions from it than is possi-
ble if an employee remains a warehouse operator.
640
NISSAN MOTOR CORPORATION IN U.S.A.
the Board will not find a violation of the Act." Centre
Engineering, Inc., 253 NLRB 419, 421 (1980). In deter-
mining whether or not the foregoing exception or limita-
tion, to the general proposition that Section 8(a)(1) of the
Act is violated when an employer advises employees that
benefits are being withheld because of the presence of a
union and/or pendency of an election, applies to particu-
lar announcements that benefits are being deferred to
avoid the appearance of election interference, several
factors must be assessed. Thus, the Board and the courts
have examined whether or not the union involved has
made any threat to protest conferring the benefits, or
whether or not there is some other basis for the employ-
er to fear such a protest;" whether and in what fashion
the employer has made an effort to secure the union's
consent to institution or increase of the benefits;12
whether in its remarks to employees concerning the
benefits, the employer makes clear that the deferral is oc-
casioned by a desire to avoid the appearance of election
interference;S whether or not the employer assures the
employees that the benefits will be granted regardless of
the results of the election;14 whether or not the employ-
er's comments regarding deferral of the benefits are
made in the context of an antiunion appeal; ' and wheth-
er or not the announcement of deferral of benefits has
been made at a time when the employer was committing
unfair labor practices. 16
Had only the answer to Lewis' question during the
general meeting and Green's response to Baldwin's mid-
September question been involved in this case, there
might well be a basis for concluding that Respondent's
statement concerning the in-house parts representative
position did not violate the Act. For even though there
has been no showing of a threat by the Union to protest
selection of someone to fill the vacancy, changes in bene-
fits and status of unit employees during preelection peri-
ods are not infrequently the subject of unfair labor prac-
tices charges. Respondent is represented by experienced
counsel whose familiarity with labor law would provide
it with ample basis for concern about the possibility of
such a charge were a selection to have been made as
Webb's replacement prior to the election. Moreover,
while it does not appear that Respondent had made any
effort to secure the Union's consent to selection of a re-
placement in-house parts representative, it was explained,
both to the employees at the September 5 meeting and to
Baldwin in mid-September, that the selection process
was being deferred only until completion of the election
process. Further, in response to Baldwin's own question
during the early September meeting, the employees had
It See, e.g., Marathon Metallic Building Company, 224 NLRB 121, 123
(1976); Marine World USA, 236 NLRB 89, 90 (1978), enforcement denied
611 F.2d 1274 (9th Cir. 1980)
" See, e.g., McCormick Longmeadow Stone C.a, Inc., 158 NLRB 1237
(1966).
"S See, e.g., Charfield-Anderson Co., Inc., d/b/oa Truss-Span Company,
236 NLRB 50, 51. fn. 6 (1978), enfd. as modified on other grounds 606
F.2d 266 (9th Cir. 1979); Signal Knitting Mills, Inc., 237 NLRB 360, 361,
fn. 4 (1978); Marathon Metallic Building Company, supra.
14 See, e.g., Signal Knitting Mills. supra, Centre Engineering. supra
I5 See, e g., Marathon Metallic Building Company, supra
le See, e.g, Chatfield-Anderson Co, supra.
been assured that no "recoursive action" would be taken
against them for union activities.
However, as found above, following the early Septem-
ber meeting with all warehouse operators, Respondent's
officials began engaging in unfair labor practices, with
the result that more is involved here than simply the
early September reply to Lewis' question and Green's
reply to Baldwin's question in mid-September. For by
the time that Green had spoken to Baldwin in mid-Sep-
tember, Cavey had been interrogated unlawfully by
Legget. Further, Green's answer to Baldwin had been
given during a conversation in the office in which Green
had campaigned against the Union. More significantly, in
their late September conversation, after Green had re-
plied to Cavey's question concerning the in-house parts
representative vacancy," 7 Legget had immediately re-
newed his questioning concerning how Cavey felt the
election would come out. So far as the record discloses,
there was no valid purpose for asking the question, nor
for doing so at that point in time. As found above, such
a question creates an obvious impression that the em-
ployer is attempting to obtain information that can be
used to discourage or prevent unionization of its employ-
ees. Brooks Cameras, Inc.. supra, 250 NLRB 820. Conse-
quently, its propinquity to Green's and Cavey's exchange
regarding the vacant in-house parts representative posi-
tion, for which the latter was one applicant, conveys a
subtle message that harm would come to Cavey, with
regard to selection for that position, if he supported or
continued to support unionization of the warehouse oper-
ators. Therefore, I find that, in the circumstances, Leg-
get's comments constituted an implied threat that Cavey
would no longer be considered for transfer to the posi-
tion of in-house parts representative because of the
Union's organizing campaign, thereby violating Section
8(a)(1) of the Act. See, e.g., Bryant Chucking Grinder
Company v. N.L.R.B., 389 F.2d 565, 567 (2d Cir. 1967).
Respondent makes essentially two general arguments
to support its overall position that a remedial order
should issue as a result of the foregoing preelection state-
ments by supervisors. First, it denies the agency status of
Duckworth, Legget, Green, and Webb. Yet, Respondent
admits that each of them is its supervisor. Consequently,
Respondent "is presumptively liable for tneir words and
deeds." N.LR.B. v. Big Three Industrial Gas & Equip-
ment Co., 579 F.2d 304, 310 (5th Cir. 1978). Duckworth
had come to the Denver facility with other officials from
Respondent's headquarters. Both he and Legget had
questioned employees unlawfully. Any argument that
might be predicted on the low-level status of Webb in
Respondent's supervisorial chain, see, e.g., Butler-Johnson
Corporation v. N.LR.B., 608 F.2d 1303, 1306 (9th Cir.
1979), is dispelled by the similarity of his offending state-
ments to those of higher officials. For, as had Duck-
I7 As set forth above. Green denied having told Cavey that selection
of an in-house parts representative would depend upon how the vote
came out in the election. I credit that denial inasmuch as it appeared to
me that Green had a better recollection than Cavey of what had been
said during that conversation and, further, because it appeared to me that,
with respect to that portion of that conversation, Cavey had been de-
scribing his subjective impressions of the gist of what he was being told,
rather than the words actually used by Green.
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worth and Legget, Webb had engaged in interrogation
regarding employee sympathies and the extent of em-
ployee support for the Union. Consequently, the employ-
ees would have "just cause" to believe that Respondent
had authorized these remarks. Id.; Capitol Foods, Inc.
d/b/a Schulte's IGA Foodliner, 241 NLRB 855 (1979),
and cases cited therein.
Second, Respondent argues that any violation which it
did commit was minor in nature and that its violations
have been cured effectively by its subsequent amicable
relations with the Union, as best illustrated by the latter's
efforts to withdraw those portions of the charge pertain-
ing to preelection statements by Respondent. Yet the fact
that a charging party may consider the subject of a
charge or a portion of a charge to be moot or settled
does not oblige the Board nor its regional directors to
consent to its withdrawal. See, e.g., APD Transport Corp.
and its Alter Ego, National Book Consolidators, Inc., 253
NLRB 468, 469-470 (1980). While it is accurate that Re-
spondent's preelection unfair labor practices were not the
most heinous nor flagrant possible violations of the Act,
"even a single victim of a small-scale violation of the
Act (which exceeds de minimis) is entitled to the Board's
attention." St. Regis Paper Company, 192 NLRB 661, 662
(1971).
Here, the unfair labor practices were committed by a
number of Respondent's supervisors. They were commit-
ted throughout the month of September. Moreover, Re-
spondent's unfair labor practices, particularly its repet-
itive questioning concerning the extent of the Union's
continuing support, are of type that, having been made
during an election campaign, "can reasonably be expect-
ed to have been discussed, repeated, and disseminated
among the employees, and, therefore, the impact of such
statements will carry beyond the person to whom they
are directed." United Broadcasting Company of New York,
Inc., 248 NLRB 403, 404 (1980). Accord: Professional Re-
search, Inc., d/b/a Westside Hospital, 218 NLRB 96
(1975). Finally, Respondent concedes that at no point has
it assured the Denver warehouse operators that there
will not be a recurrence of its preelection offenses should
the employees engage in activities protected by the Act,
but contrary to Respondent's interests and desires.' 8 In
short, Respondent has never repudiated its preelection
misconduct. See, e.g., Tulsa Division, Byron Jackson
Pump Division, Borg-Warner Corporation, 234 NLRB
1283, 1286 (1978), enfd. 608 F.2d 1344 (10th Cir. 1979);
N.L.R.B. v. Austin Power Company, 350 F.2d 973 (6th
Cir. 1965).
Therefore, I conclude that the preelection violations of
the Act were not de minimis and that issuance of a reme-
dial order pertaining to them is waranted "to inhibit the
recurrence of [Respondent's] unlawful conduct."
18 Thus, though the employees have selected a bargaining representa-
tive, that does not end the matter. Grievance proceedings and negotia-
tions may result in employee sympathy for positions contrary to those of
Respondent. Moreover, it is not beyond the realm of possibility that de-
certification proceedings or proceedings to replace the Union with an-
other representative may be instituted. Consequently, the fact that the
employees have selected the Union as their bargaining representative
hardly removes the opportunity for future protected activity by them and
the resultarnt need to assure them that they have a protected right to
engage in it.
N.L.R.B. v. Local 1445, United Food and Commercial
Workers International Union, AFL-CIO, 647 F.2d 214,
217 (Ist Cir. 1981). Accordingly, I deny Respondent's
motion to dismiss these allegations.
As set forth above, it is conceded that wage increases
would have been granted to Denver warehouse opera-
tors on October 6, but for their selection of the Union as
their bargaining representative in the election conducted
4 days earlier. As a general proposition, "the withhold-
ing of wage increases . . . from employees who . . .
have chosen a union as their collective-bargaining repre-
sentative violates Section 8(a)(3) and (1) of the Act if
such employees otherwise would have been granted the
wage increases . . . in the normal course of the employ-
er's business." Verona Dyestuff Divison Mobay Chemical
Corporation, 233 NLRB 109, 111 (1977). Accord: Holland
American Wafer Company, 260 NLRB 267 (1982); Florida
Steel Corporation, 220 NLRB 1201, 1203 (1975). Conse-
quently, absent other considerations, it could be conclud-
ed that Respondent violated Section 8(a)(3) and (1) of
the Act by failing to continue applying its semiannual
program to employees who would otherwise have re-
ceived them, but for their selection of the Union as their
bargaining representative. However, other considerations
are present in this case.
The program pursuant to which the Denver ware-
house operators would have received wage increases on
October 6 is one intended to encompass, as its title states,
only "nonunion warehouse classification." As a result of
the election, the Denver warehouse operators had re-
moved themselves from the scope of that program. By
having selected the Union as their bargaining representa-
tive, as of October 2, they were seeking to bargain with
Respondent through a statutory representative. Concomi-
tantly, inasmuch as it did not intend to challenge the re-
sults of the election by filing objections to it, Respondent
intended to commence negotiations with the Union, as
the statutory representative of the Denver warehouse op-
erators. It is settled that "an employer is under no obliga-
tion under the Act to make . . . wage increases applica-
ble to union members, in the face of collective bargain-
ing negotiations on their behalf involving much higher
stakes." Shell Oil Company, Incorporated, et al., 77 NLRB
1306, 1310 (1948). Accord: Empire Pacific Industries, Inc.,
257 NLRB 1425 (1981). Of course, it would be an unfair
labor practice if wage increases granted to all employees
are withheld from those who are represented if it is
shown that the withholding is motivated by consider-
ations proscribed by the Act. Id. However, to establish
unlawful motivation, evidence beyond the mere with-
holding from represented employees of wage increases
granted to represented employees, itself, must be ad-
duced. For, of itself, that disparity is "not so 'inherently
destructive of important employee rights' that an unfair
labor practice should be found even in the absence of
proof of such a motive." Sun Oil Company of Pennsylva-
nia, 245 NLRB 59 (1979).
Here, as found above, Respondent did commit unfair
labor practices prior to the election. However, as pointed
out above, these were not of the most heinous nor fla-
grant type that could be committed. Indeed, they were
642
NISSAN MOTOR CORPORATION IN U.S.A.
not the type that logically could be characterized as
demonstrating a complete rejection of the collective-bar-
gaining process. More signficantly, there is neither an al-
legation nor evidence to support an allegation that, fol-
lowing the election, Respondent continued to commit
unfair labor practices. To the contrary, Respondent en-
gaged in negotiations and concluded a collective-bargain-
ing agreement with the Union. Cf. Verona Dyestuff Divi-
sion, supra. So far as the record discloses, Respondent
fulfilled its bargaining obligation without engaging in any
conduct that could be characterized as bad-faith bargain-
ing. Cf. Chevron Oil Company, Standard Oil Company of
Texas Division, 182 NLRB 445 (1970), enforcement
denied 442 F.2d 1067 (5th Cir. 1971). Indeed, possibly
the most significant factor with regard to this allegation
is the absence of any additional allegation that Respond-
ent had violated Section 8(a)(5) of the Act by discontinu-
ing application of its semiannual program to Denver
warehouse employees.'9 Nor can it be said on the basis
of this record that the General Counsel has shown that
Respondent and the Union did not negotiate concerning
the subject of wages during those negotiations. Sun Oil
Company, supra, 245 NLRB at 61 (dissenting opinion of
Member Jenkins). Indeed, the parties stipulated that
there had been agreement on a one-time payment of $50
to unit employees on the payroll at the time of their dis-
cussions. Finally, there is no evidence that Respondent
had used the withholding of wage increases as a device
for undermining employee support for the Union, by
making comments to employees designed to place the
onus for the withholding on the Union or on the em-
ployees' selection of the Union as their representative.
Cf. American Telecommunications Corporation, Electromne-
chanical Division, 249 NLRB 1135, 1137-38 (1980); Hol-
land American Wafer Company, supra.
Therefore, I conclude that a preponderance of the evi-
dence does not establish that unlawful considerations had
motivated Respondent in failing to apply its nonexempt
rate schedule for nonunion warehouse classifications to
its Denver warehouse operators on and after October 6
and, accordingly, I shall dismiss that allegation of the
complaint.
CONCLUSIONS OF LAW
1. Nissan Motor Corporation in U.S.A. is an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
I0 This is so because, w here an employer discontinues wage and bene-
fit increases without first satisfying its obligation to bargain, it, in effect,
rejects the collective-bargaining process. Such an employer then is in a
poor position to argue that it has withheld the change in the interest of
participating in a process that, by virtue of its unilateral change, it al-
ready has disregarded. However, where, as here, it is not contended that
the change had been made unilaterally and in disregard of the employer's
collective-bargaining obligation, possibly due to facts known to the Gen-
eral Counsel but not necessarily presented during the course of the hear-
ing, there is no basis for concluding that that employer has rejected the
collective-bargaining process and, thus, no basis for establishing, absent
other considerations, that the employer was motivated by unlawful con-
siderations in deferring the change for resolution within the collective-
bargaining framework.
2. International Union, United Auto Workers, Region
No. 5, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogating employees regarding their own
union sympathies and the union sympathies of their co-
workers, by soliciting grievances from employees and
promising to correct them, and by impliedly threatening
to deprive an employee of a transfer because of union
considerations, Nissan Motor Corporation in U.S.A. has
violated Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not violated the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Nissan Motor Corporation in
U.S.A. engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist there-
from and that it take certain affirmative action to effectu-
ate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2 0
Nissan Motor Corporation in U.S.A., Denver, Colora-
do, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees regarding their own union
sympathies and the union sympathies of their coworkers;
soliciting complaints or grievances that are causing em-
ployees to seek representation and promising to correct
those complaints or grievances; and threatening to de-
prive employees of transfers because of union consider-
ations.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights uinder Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its Denver, Colorado, facility copies of the
attached notice marked "Appendix." 2 1 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by Nissan Motor Cor-
poration in U.S.A.'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
20 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
21 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of Ihe National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it to ensure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to all allegations of unfair labor
practices not found herein to have occurred.
APPENDIX
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 parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and we have been ordered to post this notice.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT interrogate your own union sym-
pathies and the union sympathies of your cowork-
ers.
WE WILL NOT question you about your com-
plaints and grievances that have caused you to seek
representation by International Union, United
Workers, Region No. 5, or any other labor organi-
zation, and, in connection with that questioning,
promise to correct those complaints and grievances.
WE WILL NOT threaten, expressly nor by implica-
tion, that you will be deprived of transfers to other
positions because of union considerations.
WE WILL NOT in any like or related manner in-
terfere with any of your rights set forth above
which are guaranteed by the National Labor Rela-
tions Act.
NISSAN MOTOR CORPORATION IN U.S.A.
644