W & W Tool & Die Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 20, 1976

225 N.L.R.B. 1000 (N.L.R.B. 1976)

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W & W Tool & Die Manufacturing Co. and Interna-
tional Association of Machinists and Aerospace
Workers , AFL-CIO, District Lodge No. 115. Case
20-CA-10214
August 20, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On April 9, 1976, Administrative Law Judge Hen-
ry S. Sahm issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief and Respondent 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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Administrative Law Judge correctly found
that Respondent engaged in the following unlawful
conduct:
At a meeting held on April 18, 1975,' and on sub-
sequent occasions, Respondent President Frank
Walch violated Section 8(a)(1) of the Act by telling
employees that he would shut down the plant in the
event the employees selected a union to represent
them.
On April 28, Respondent violated Section 8(a)(3)
of the Act by laying off for a 1-week period Cecil
Culver, the employee spokesman at the April 18
meeting where demands were made for improved
wages and benefits. On the same date, Culver also
told Vice President Herbert Clark that he was not
happy with his wages and was going to join the
Union. In this connection, we find, as the Adminis-
trative Law Judge failed to do, that Respondent also
violated Section 8(a)(1) of the Act when, in response
to a share-the-work proposal of Culver's fellow em-
ployees Gregory Redburn and Daniel Lashin, Walch
on April 28 or 29 refused to recall Culver on the
ground that he was a "troublemaker" and an "insti-
gator."
On April 29, Culver contacted the Union and ar-
ranged for an evening meeting on May 1 at which
time all six full-time employees 2 signed authorization
i All dates below refer to 1975
2 The record shows that, during April, May, and June, Respondent also
employed three part-time high school students pursuant to a work experi-
cards for the Union and were told by the business
agent that a letter would be prepared requesting rec-
ognition and commencement of negotiations on May
5or6.1
At 2 a.m. on May 2, Ronno Anderson, one of the
employees present, telephoned Clark at his home and
gave him a complete account of what occurred at the
meeting. Clark then relayed this information to
Walch and in another telephone conversation about
5 a.m. they decided to continue the layoff of Culver
and extended it to employees Redburn, Lashin, and
James Price. Accordingly, at 7:30 a.m., they so noti-
fied these employees.4
The Administrative Law Judge properly concluded
that the foregoing layoffs violated Section 8(a)(3)
and (1) of the Act because Respondent's "real rea-
son" therefor was "to cripple the union organization
efforts as well as to discourage the employees from
continuing the organizational campaign."
However, the Administrative Law Judge held that
Respondent's unfair labor practices were not suffi-
ciently "egregious" to render a fair election unlikely
and to justify the "severe" remedy of a Gissel bar-
gaining order.' We disagree.
Contrary to the Administrative Law Judge, this is
not a case where the unfair labor practices are so
minor as not to require a bargaining order.
As soon as Respondent was confronted with the
employees' concerted demand on April 18 for im-
proved wages and benefits, Respondent promptly
embarked upon an unlawful program designed to
eliminate employee support for the Union. Thus, as
indicated above, Respondent lost no time in achiev-
ing this goal by threatening to close the plant if the
employees chose a union as their bargaining repre-
sentative. Respondent then singled out for a punitive
1-week layoff Culver, the employee spokesman who
made clear his intention to join the Union in an ef-
fort to secure higher wages. Finally, when Respon-
dent learned that all of its full-time employees had
signed union authorization cards and had decided to
request recognition and negotiation, it acted with
lightning speed to defeat the Union by terminating
Culver, the "spearhead of the union activity in the
shop," and three other union adherents.
In view of Respondent's substantial violations of
the Act, we find that a free and fair election is unlike-
ence program In September, there were only two such part-time employees
3 The parties stipulated that on May 5 the Union ' s business agent deliv-
ered the letter personally to Walch who refused to bargain with the Union
On the same date , the Union filed a petition for an election among the
production and maintenance employees , including the tool and diemakers
4On various dates during the period May 16 to June 21, the discrimma-
tees were offfered reinstatement Redburn and Lashm declined the offer but
the latter returned in September Culver and Price accepted the offer but the
former left after a few days
5 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969)
225 NLRB No. 138
W & W TOOL & DIE MFG CO 1001
ly in the circumstances of this case. Accordingly, we
conclude that a bargaining order is warranted to
remedy the serious and pervasive unfair labor prac-
tices committed by Respondent.' We further find
that Respondent's bargaining obligation began on
May 5, the date the record establishes that the
Union, having previously secured majority support
in the unit, demanded recognition in the context of
Respondent's contemporaneous course of unlawful
conduct. Respondent was therefore duty bound to
bargain with the Union as of that date.'
In connection with the foregoing, we do not agree
with the Administrative Law Judge that the offer of
reinstatement to the discriminatees and the resumed
employment of some of them demonstrate that the
effects of the unfair labor practices are not sufficient-
ly "pervasive" and "lingering" to justify a determina-
tion that an election could not be "really free from
the adverse influence of Respondent's unlawful ac-
tion." As the Board held in a similar case, the dis-
charges, "whether ephemeral or not, cannot but have
a telling and lasting effect on the employees." 8 That
effect cannot be eradicated merely by making the
employees whole for the wages lost and by posting a
notice.
We also find that Respondent's refusal to bargain
with the Union, which was preceded by the layoff of
two-thirds of the full-time work force, violated Sec-
tion 8(a)(5) of the Act. Although the complaint did
not specifically allege such a violation, the record
discloses that the issue was litigated at the hearing.
Thus, the complaint alleged that the Union has been
and is the exclusive representative of the employees
in the unit described below I and that since May 5
and thereafter, the Union has requested recognition
and bargaining with Respondent. In support of this
allegation, as well as the General Counsel's theory
that a remedial bargaining order is necessary, the
record contains the Union's recognition letter of
May 2, the stipulation as to Respondent's refusal to
bargain, the Union's petition for an election, the au-
thorization cards signed by the six full-time employ-
ees,10 and evidence as to the part-time employees 11
6 Red Barn System, Inc, 224 NLRB 1586 (1976), Elling Halvorson, Inc,
222 NLRB 534 (1976), E L Jones Dodge, inc 190 NLRB 707 (1971)
7 Member Fanning agrees with his colleagues that the bargaining obliga-
tion began on May 5 However , his basis therefor is the fact that Respon-
dent refused to bargain on that date
8 See Vernon Devices , Inc, 215 NLRB 475 (1974), wherein the discharge
of employees for I hour near the close of the day was followed by their
reinstatement the next morning
9 All tool and die and machine shop production employees excluding
office clerical employees , salesmen, students in the work experience pro-
gram , professional employees , casual employees , temporary employees,
guards, and supervisors as defined in the Act
10 Respondent contends that the cards were tainted In so doing , it relies
on employee Peter Essaff 's testimony that he and Anderson each signed a
card only after they were told by the business agent that the purpose was to
Accordingly, all of the elements necessary to prove a
violation of Section 8(a)(5) of the Act were fully liti-
gated and established with respect to the General
Counsel's theory that a bargaining order is necessary
to remedy the unfair labor practices, effective May 5,
1975, the date of the demand for recognition.12
AMENDED CONCLUSIONS OF LAW
In accord with the above findings, we adopt the
Administrative Law Judge's Conclusions of Law
with certain modifications:
Insert the following new Conclusions of Law 3, 4,
and 5 and renumber present conclusion 3 as 6:
"3. By stating on April 28 or 29, 1975, that it re-
fused to recall employee Cecil Culver on the ground
that he was a `troublemaker' and `instigator,' Re-
spondent violated Section 8(a)(1) of the Act.
"4. At all times material herein, since May 1, 1975,
the Union has been the exclusive representative of
the employees in the above-described appropriate
unit within the meaning of Section (a) of the Act.
"5. By refusing, since May 5, 1975, and at all times
thereafter, to recognize and bargain with the Union
as the exclusive representative of its employees in the
appropriate unit set out above, Respondent has en-
gaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent,
W & W Tool & Die Manufacturing Co., Burlin-
game, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening its employees that it will close its
"get an election " However, Essaff subsequently testified that the business
agent stated that he intended to bring a letter to Respondent As indicated
above, the letter requested recognition of and bargaining with the Union In
this connection , Anderson testified corroboratively that the employees
"filled out cards to give our consent to the Union to negotiate " According-
ly, we find no merit in Respondent 's contention
"Respondent contends that the students should be included in the ap-
propriate unit We agree The students are at the plant about 20 hours
weekly during the high school year and also work during the entire summer
Although they "come and go ," the record shows that about half of the
full-time employees were originally employed in connection with the work
experience program As they have a sufficient community of interest with
the full-time employees, we find that the students belong in the unit Ac-
cordingly , we find appropriate the unit set forth below See Benzschawel,
Dorance J , and Terrence D Swingen Co -Partners, d/b/a Parkwood IGA
Foodliner, 210 NLRB 349 (1974), and Gruber's Super Market, Inc, 201
NLRB 612 (1973) Inclusion of the students in the unit does not affect the
Union's majority status
12 Red Barn System, Inc, supra
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop if they designate or select'the International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 115, or any other la-
bor organization as their collective-bargaining repre-
sentative.
(b) Stating that it refuses to recall an employee
because he is a "troublemaker" or "instigator."
(c) Discouraging membership in the above-named
Union or any other labor organization by laying off,
discharging, or in any other manner discriminating
against employees in regard to their hire or tenure of
employment or any terms or conditions of employ-
ment.
(d) Refusing to bargain collectively with the
above-named Union as the exclusive bargaining rep-
resentative of the employees in the following unit:
All tool and die and machineshop production
employees including the students in the work ex-
perience program at Respondent's plant in Bur-
lingame, California, but excluding all office cler-
ical employees, professional employees, casual
employees, temporary employees, guards, and
supervisors as defined in the Act.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.13
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make Cecil Culver, Gregory Redburn, James
Price, and Daniel Lashin whole for any loss of earn-
ings suffered by reason of their termination, with in-
terest thereon at the rate of 6 percent.
(b) 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 analyze the amount of
backpay due under the terms of this Order.
(c) Upon request, recognize and bargain with the
above-named Union as the exclusive representative
of all employees in the aforesaid appropriate unit
and, if an understanding is reached, embody such
understanding in a written, signed agreement.
(d) Post at its place of business in Burlingame,
California, copies of the attached notice marked
"Appendix." 11 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by Respondent's representative,
u As this case involves unlawful discharges as well as other serious unfair
labor practices, a broad order is warranted
14 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 the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees because
of their activities on behalf of the International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, District Lodge No. 115, or for
any other reason.
WE WILL NOT state that we will refuse to recall
any employee because he is a troublemaker or
instigator.
WE WILL NOT threaten our employees that we
will close the shop because of their activity on
behalf of the above-named Union or any other
union.
WE WILL NOT refuse to recognize or bargain
with the above-named Union as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL, upon request, bargain collectively
with the above-named Union in the bargaining
unit described below with respect to rates of
pay, wages, hours of employment, and other
conditions of employment, and, if an under-
standing is reached, embody such understanding
in a written, signed agreement. The bargaining
unit is,
All tool and die and machineshop employees
including the students in the work experience
program, at our plant, 1322 Marsten Road,
Burlingame, California, excluding all office
clerical employees, professional employees,
salesmen, guards, and supervisors as defined
in the Act.
WE WILL pay Cecil Culver, Gregory Redburn,
James Price, and Daniel Lashin with interest for
all the earnings they lost because of their dis-
criminatory layoff by us.
W & W TOOL & DIE MFG . CO 1003
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act.
You are free to become or remain members of the
above -named Union or any other labor organization.
W & W TOOL & DIE MANUFACTURING CO.
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge : This pro-
ceeding heard at San Francisco , California , on September
24, 25, and 26 , 1975,' pursuant to a charge filed on May 7,
presents the questions whether Respondent laid off four
employees in violation of Section 8(a)(3) of the Act be-
cause of their activities on behalf of International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 115, the Charging Party and Union
herein . It is also alleged in the complaint that Section
8(a)(1) was violated when officials of the Respondent told
employees it was not recalling a laid-off employee because
he had instigated and engaged in union activities and
threatened that it would close its shop if they designated or
selected the Union herein as their collective -bargaining
representative . Also averred by the representative of the
General Counsel is a refusal to recognize and bargain with
the said Union and an allegation in the complaint that the
unfair labor practices committed by Respondent "are so
serious and substantial in character and effect as to war-
rant the entry of a remedial order requiring Respondent to
recognize and bargain with the Union ." The General
Counsel contends also that the unfair labor practices are
"so egregious as to require the issuance of a remedial order
to bargain" under the Gissel and Steel-Fab doctrines.2
Upon the entire record , including observation of the de-
meanor of the witnesses in testifying , the recital of the facts
hereinafter found and after due consideration of the briefs
filed by the parties on November 3, there are hereby made
the following credibility and factual findings.
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
The Respondent , a California corporation , with a ma-
chine shop , located in Burlingame , California , is engaged
in the nonretail operation of a tool -and-die business. It has
a working complement of eight men , two of whom, the
president and vice president , perform tool-and-die work
along with three men who are also tool -and-die craftsmen
and three other workers classified as production machin-
ists. During the past calendar year , the Respondent per-
formed services valued in excess of $50 ,000 for other firms
1 All dates refer to 1975 unless otherwise indicated
2 N L R B v Gissel Packing Co , Inc, 395 U S 575 (1969), Steel-Fab, Inc,
212 NLRB 363 (1974)
located outside of California . It is undisputed that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and so found.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
A. Alleged Violations of Section 8(a)(1) and (3)
The six employees held a meeting in the Respondent's
shop on April 18, with coowners Walch and Clark, with
Culver as the employees' principal spokesman whom they
had elected as their spokesman . Culver gave Walch a copy
of a Machinists Union contract in order for him to exam-
ine it . They discussed wages, overtime pay, vacation pay,
holiday pay, sick leave , and a dental plan . Mention was
also made of the wages and benefits paid in area union
shops having contracts with the Machinists Union. Walch
then stated the shop was hard pressed due to a paucity of
work which all the employees already knew . Walch told
them that , inasmuch as the employees had not accorded
him sufficient time to prepare for this April 18 meeting, he
would need additional time to consider their demands. He
also suggested that in the meantime the employees contact
small nonunion plants in the area doing work similar to
that of Respondent W & W Tool & Die Manufacturing
Co., and ascertain what these competitors were paying
their employees.
A week later , on April 25 , the three tool-and -die work-
ers, Culver , Redburn, and Lashin were informed by Walch
that he was raising their hourly pay rate from $7.80 to
$8.45.
On April 28 , 3 days later , Culver , who had the most
seniority of all six employees , was notified by telegram that
he was being laid off for a week due to lack of work. The
following day, Redburn and Lashin , the other two tool-
and-die employees, proposed to Walch that he reinstitute a
plan that had been used 3 weeks before when business was
slow to prevent a layoff whereby they would again work 3
or 4 days instead of 5 days a week in order to share the
available work and thus prevent Culver being laid off. Al-
though such a plan to avert a layoff had been agreed to by
Walch during the first week in April, he refused to approve
it 3 weeks later when it was again proposed , stating, ac-
cording to Redburn and Lashin , that he had work for
them , "but nothing for Culver ." Culver stated Walch was
a troublemaker and had been giving Clark , the other
coowner , "a bad time" for the past 2 months about a raise
in pay. Redburn and Lashin also testified that Walch told
them he resented Culver not coming to him directly and
requesting a pay raise instead of going to Clark and putting
pressure on him.
During Culver 's 1-week layoff which began on April 28,
he contacted the Union on April 29, and arranged for a
meeting after work at its office on May 1, where the busi-
ness agent spoke to the six employees . All six employees
then signed authorization cards.
After they signed the union cards, they were told by the
Union 's business agent that Respondent would be sent a
letter requesting recognition and the commencement of ne-
gotiations which it was hoped would eventuate in the exe-
cution of a collective -bargaining agreement. Such a letter
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was mailed on May 2 to the Respondent requesting a nego-
tiation meeting on May 5 or 6.
This meeting on May with a union official and their
signing authorization cards was reported at 2 a.m. on May
2, by telephone by employee Anderson-who had attended
the union meeting-to Respondent's vice president, Clark,
at his home. Anderson told Clark all six of the employees
had signed authorization cards and that the Union was in
the process of mailing to Respondent a letter requesting
recognition and the commencement of bargaining negotia-
tions. Anderson also told Clark he believed that in the
event the Union were to prevail it would mean Culver, who
was the leading union proponent and the oldest and long-
est employee in the shop, would become union steward and
that he did not think Culver would be "fair," explaining
that he feared Culver would see to it that the three tool-
and-die employees would receive more work than the three
production machinists of which group he was one. In his
testimony at the hearing, Anderson referred to Culver as
being the "organizer" and described him as having "a fair-
ly large part in what was going on." Within a few hours,
Clark, in turn , relayed to Walch what Anderson had told
him transpired at the May union meeting.
The following day, May 2, Respondent purportedly laid
off Redburn, Price, Lashin, and Culver because of "lack of
work." 3 Culver, who had already been laid off on April 28,
a week before, received a second notice on May 2 fur-
loughing him until further notice due to "lack of work."
The same day, the Union had sent a letter dated May 2 to
the Respondent requesting recognition.
On or about June 12, Culver was recalled to work and
worked until June 17, inclusive, when he voluntarily quit.
Redburn, who had been laid off on May 2, declined
Respondent's offer on May 19 to return to work as he had
obtained employment elsewhere. Daniel Lashin who had
been employed by Respondent for approximately 9 years
was also laid off on May 2. Approximately 2 weeks later he
accepted a job with another employer. Consequently,
Lashin, when notified by Walch on May 16 to return to
work on May 19, informed Walch that he had a job else-
where. The following September he returned to
Respondent's employ. Lashin's testimony concerning the
April 18 meeting, which is detailed above, corroborated
Redburns's testimony with respect to Culver's layoff on
April 28, when they both requested Walch to allow them to
take off I or 2 days a week, as he had agreed to previously
in early April when a layoff was made, in order to appor-
tion the available tool-and-die work among the three of
them so as to avoid Culver's layoff. Walch's reply to this
proposal, according to Lashin, was: "There really wasn't
too much work for Culver but that he had enough for me
and Redburn. He also said that Culver was the instigator
and he was giving Clark a hard time in the last week or so
... . He insinuated that Cecil Culver was, more or less,
the starter of the whole thing with the contract."'
Peter Essaff, who is presently employed by Respondent
3 Price was not working at the time of these May 2 layoffs because of an
injury
This is found to be an unmistakeable reference to Culver's union activi-
ties
as a production machinist and has been for the past 3
years, testified Walch told the assembled employees at the
April 18 meeting in his office that in the past at this time of
the year he always "had a backlog of at least $50,000 worth
of work to turn out but at the present time there was a very
little backlog of business." Walch said, according to Essaff,
"that he was getting very few quotes from United Airlines
and he didn't have any Ampex orders or Schlage Lock
Company work," all of whom in the past had given him a
major part of his machine shop work. Essaff also testified
that, on April 25, both he and Anderson, also a production
machinist, were given hourly wage raises of 50 cents a week
after the three tool-and-die employees had received theirs.
On cross-examination, Essaff, when asked whether any
new men were hired full time after Culver's layoff on April
28, answered in the negative. He also testified that during
this same period of time business was slow as there was no
"back-up work available" and few orders on hand.
When Herbert Clark, vice president of Respondent, tes-
tified, the substance of what he related did not vary in any
material degree from Anderson's version of his 2 a.m. tele-
phone call on May 2 to Clark, and which Clark, in turn,
relayed to Walch that there had been a meeting at the
union hall and that all the employees signed union authori-
zation cards on May 1 to petition for a Board election.
Clark continued that he again telephoned Walch 3 hours
later at 5 a.m. and, during this conversation, they agreed
that since there was no work available for the employees,
"that it might be better if we laid them off. `This,' testified
Clark, `was the gist of the conversation.' "
Clark on cross-examination also stated that sometime
around April 18, Culver had told him "he wasn't happy
with his wages . . he was going to join the Union... .
Clark also testified that business was so slow before the
layoffs that they had been "backing" the employees for 3
or 4 months before May 2, in order not to give them
"made" work so as to prevent their layoffs. He explained
that "backing" meant "making work for them" when they
did not have any orders in the shop for them to work on
but they "tried to keep the employees busy when we really
didn't have any work for them."
Frank Walch, president of Respondent, testified that the
few job orders they had on June 25 amounted to only
$14,375 which was the lowest backlog "in the last few
years." It was claimed that the job orders from Ampex
Corporation, one of their largest customers, were $12,500
less in the first 6 months of 1975 than the same period in
1974. There were, added Respondent, 1,225 less man-hours
worked in the same 6-month period compared to 1974. In
April and May 1974, there were 2,373 man-hours worked
by the tool-and-die employees but only 1,776 hours in
April-May 1975 or 607 hours less There were approxi-
mately the same number of employees in 1975 as in 1974.
Walch stated that the "yearly volume" of business is
$350,000. When Walch was asked whether the machine
shop was making a profit "in the early part of 1975," his
equivocal answer was: "No, not really. There were some
months . which would show a profit.. ." Walch stated
that the reason Culver was laid off was because "there was
no tool work for him in the shop" and the only work then
available in the shop was the assembly work which includ-
W & W TOOL & DIE MFG. CO. 1005
ed computer enclosures but that Culver did not have the
requisite experience to perform that type of precision pro-
duction work whereas Lashin and Redburn did. Walch
also testified that the reason he laid off Lashin and Red-
burn on May 2 was economic, explaining, "We backed
them long enough. . . . We carried them, in other words,
we made work for them, and paid out of our own pockets
.. . After all if we don't make money, we won't be in
business very long . . ." He added that Redburn and
Lashin were laid off "because of no work."
Walch acknowledged that, when Culver was laid off on
April 28, Lashin and Redburn asked him if he would agree
to a plan whereby they would take off a day or two each
week in order that Culver would be able to continue work-
ing. Walch explained that he "told them no, that it wasn't
practical for us, then. I may not have said anything further
because my explanation to them was, more or less that
[Culver] couldn't do the work that they were doing. [Cul-
ver] was a toolmaker and he was very proud. He consid-
ered Mr. Lashin and Mr. Redburn, more or less, appren-
tices , while they really were Journeymen, and I recognized
them as such, and they got the wages of such also. Howev-
er, Mr. Culver always felt that they still were apprentices
.. . . So I had to use my own good judgment on who was
the best to stay on the job." In determining whom to lay
off, Walch did admit that he considered Culver a "trouble-
maker." Also he acknowledged that Culver was a "good
mechanic," stating: "There is no denying this and I recog-
nize this; and he has worked in the shop a long, long time.
But over the last 3 years, he had created a problem in this
respect; that he threatened to quit a number of times" be-
cause he was dissatisfied with his wages. He explained that
this dissatisfaction was evidenced by Culver requesting a
10-percent raise and threatening that if he did not receive it
that he would accept another job elsewhere which paid
more money." Walch continued: " Sometimes I gave him
something-he made more money then because these other
men were not toolmakers yet." This is an unmistakeable
reference to the other two tool-and-die men, Redburn and
Lashin, and would appear to corroborate Culver's conten-
tion that Lashin and Redburn were not journeymen tool-
and-die craftsmen as they had much less experience and
skill than Culver.5
Nor does it seem that Walch's dissatisfaction was based
solely on Culver being a "troublemaker" who kept threat-
ening to accept other job offers paying more money than
Respondent. This is evidenced by Walch later in his testi-
mony citing additional reasons for selecting Culver for lay-
off instead of either Lashin or Redburn who had less se-
niority and skill, when he complained that Culver was not
only frequently absent from work but that he also failed to
finish jobs assigned to him which necessitated either Lash-
in or Redburn having to complete them.
Price, another employee, testified and this was corrobo-
rated by Culver, that he has heard Walch state that "he
5 Lashm and Redburn , both much younger than Culver, had received
their initial training in a high school "experience training program" spon-
sored by the local board of education in which W & W Tool & Die Manu-
facturing Co, participated , before being hired full time by Respondent as
apprentices
would rather close the doors than have a union shop."
Lashin also confirmed this threat by Walch, testifying that
he had heard him say "he would close the shop if the union
came in" and that Walch also told him: "You know, if we
go union, I won't be able to keep the shop open" explain-
ing that unions do not permit an owner to perform work in
his own shop. Essaff, employed by Respondent on the date
of this hearing, testified Walch told him that "if the shop
went union, he would just as soon shut it down-close the
doors or try to sell it and let someone else run it." Essaff
also stated that, on another occasion, Walch had told him
a small shop like his does not have the resources to go
union and that he would close the doors in the event the
employees selected a union to represent them. On his direct
examination, Walch admitted that he had told employees
at the April 18 meeting in his office that he would shut
down the plant before he would go union or be union.
B. Credibility
The witnesses for the General Counsel and Respondent
are in agreement in some respects as to the facts in this
proceeding. As to those that are in conflict, however, after
observing the witnesses testify and analyzing the record
and inferences to be drawn therefrom, this conflict in testi-
mony is resolved in favor of the versions told by the Gener-
al Counsel's witnesses who appeared to be forthright and
truthful Based on the recital of the facts detailed above,
the demeanor of the witnesses in testifying, the substantial
evidence on the record appraised as a whole, and the
straightforward testimony of the General Counsel's wit-
nesses, Redburn, Price, Anderson, Essaff, Lashin, and Cul-
ver, that portion of testimony of Walch and Clark, which is
contrary to the findings made herein, is not credited as to
the conduct in dispute. Walch's testimony strains one's cre-
dulity when he incredibly testified that Culver, a man over
50 years of age, who had been with Respondent 9 years
and whose quality of work had been exemplary prior to his
union activities, was unable to perform "assembly work"
which some of the other employees with less experience
were then doing.
Another practical consideration which cannot be over-
looked in resolving the credibility issues in this case is the
cogent fact that Lashin and Essaff were employed in
Respondent's shop at the time they testified. As such, they
depended on theirjobs for their livelihood and they under-
stood that after testifying they would continue in the em-
ploy of Respondent. Moreover, the trier of these facts is
not unmindful of the predicament of an employee subpe-
naed by the General Counsel who testifies adversely to his
employer's interest as did Lashin and Essaff, being appre-
hensive and fearful with perhaps some measure of justifica-
tion as to the future possibility of retaliatory action. These
practical considerations, coupled with the normal workings
of human nature, have led me to place considerable cre-
dence upon their candid and forthright testimony as it is
believed they were impelled to tell the truth regardless of
what consequences might eventuate.
Moreover, Walch's recital of the events during April and
May was rambling, often unresponsive, equivocal, and
vague as well as self-contradictory which weighs against
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ascribing credence to his version of what occurred particu-
larly in the case of Culver's layoff.
Conclusions
The inconsistent reasons given for the four alleged dis-
criminatees' layoffs create a suspicion that they were of-
fered to conceal an unlawful motive which in this proceed-
ing, it is found, was an attempt to forestall union activity
and to abort the incipient union organizational activities
by "laying off" first Culver, who was the Union's chief
protagonist and of whose union activities Walch and Clark
were aware, as well as learning from Anderson that the
three other employees had signed union cards the same day
they were laid off. Then too, at the meeting in Walch's
office on April 18, it was Culver who had turned over to
Walch a copy of a Machinists Union collective-bargaining
agreement for his examination. Moreover, Culver's layoff
10 days later is believed to have been more than a temporal
coincidence but rather motivated by his being in the fore-
front of union activities.
Furthermore, it was Culver who was the spearhead of
the union activity in the shop. It was he who was elected
spokesman by his fellow employees and it was he who con-
tacted the Union and arranged for the meeting at the
Union's offices. It would seem that only after Culver en-
gaged in these protected activities of which Respondent's
officials were aware that the quality of Culver's work be-
came unsatisfactory to them. It stands uncontradicted that
it was he, a "good mechanic," a journeyman tool-and-die
craftsman, who was first selected for layoff and not Red-
burn or Lashin, also tool-and-die employees, who were
many years his junior in age, in seniority, and also in job
experience.
In addition, Walch complained that Culver took too
many days off from work and that he did not finish jobs on
which he was working which required Walch to assign the
work to other employees. According to Walch this had be-
come increasingly worse during the past year.
The unconvincing character of these proffered shifting
and multiple reasons given by Walch included an admis-
sion that Culver was a "good mechanic" but a "trouble-
maker" 6 who repeatedly threatened that he would quit.
Such testimony by Walch is a significant factor in de-
termining whether Culver's discharge was improperly moti-
vated.
Against Walch's feeble complaints with respect to
Culver's alleged inefficiency, which strains one's credulity,
there has been weighed Respondent's knowledge before
the four layoffs of all the employees attending a meeting at
the union offices on May 1, signing authorization cards,
and the summary and precipitate nature of their separa-
tions the following day. This combination of circum-
stances, in conjunction with Walch's uncontroverted threat
to close the shop if the employees selected the Union to
represent them, which is found infra to be a violation of
Section 8(a)(1) of the Act, is scarcely explainable except
upon the hypothesis that Respondent was discriminatorily
6 The term "troublemaker" is found to be synonymous with and referred
to Culver being a union activist
motivated and makes no other explanation reasonable.
It is found, therefore, that, in order to lend an aura of
credence to Respondent's main defense that these four lay-
offs were economically motivated to reduce its overhead
because of the alleged drastic reduction in orders from its
customers, the defense is neither true nor credited. On the
contrary, it is found that the reasons for the layoffs were
proscribed.
It would appear also that Respondent raising the hourly
pay rate of Culver, Redburn, and Lashin, the three tool-
and-die employees on April 25, at a time when Respondent
represents that business was very poor, militates against a
finding that adverse economic conditions triggered the
summary and abrupt layoffs of Culver 3 days later and the
other three discriminatees on May 2, without any warning
whatsoever. For the reasons explicated above, it is found
that these layoffs were effectuated in order to abort and
discourage union activities in the shop within the meaning
of Section 8(a)(3) of the Act. It is found accordingly that
the adverse economic conditions asserted by Respondent
for these layoffs of Culver, Redburn, Lashin, and Price
(who had not been working since March due to injuries)
were afterthoughts advanced by the Respondent for its ac-
tions and used as a pretext. It is concluded, therefore, that
the real reason for their layoffs was intended to cripple the
union organization efforts as well as to discourage the em-
ployees from continuing the organizational campaign.
Such conduct, in conjunction with Walch's threats to close
the shop if the employees selected the Union, explicated
below, violated both Section 8(a)(1) and (3) of the Act.
Assuming, arguendo, that there is some substance to
Respondent's contention that adverse economic consider-
ations played a part in its decision to lay off the employees,
all of the probative evidence described above firmly estab-
lishes that the W & W Tool & Die Manufacturing Co., in
laying off four of its six employees,7 was unlawfully moti-
vated by their union activity Furthermore, the testimony
here provides direct evidence that Respondent's layoff de-
cision was motivated at least in part by the employees at-
tending the union meeting and signing authorization cards.
It is axiomatic that a layoff violates Section 8(a)(3) if moti-
vated in part by antiunion considerations.' A violation is
established even if union activity were only a secondary
factor in the decision to lay off the employees and the
courts and Board have recognized that a layoff or dis-
charge founded in part on union activity is violative of
Section 8(a)(3) of the Act.9 As was stated in N.L.R.B v.
Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967),
"A company can have dominant motives, mixed motives,
equal motives, concurrent motives, and bewildering combi-
nations of these, but . . . [t]o invoke §8(a)(3), the anti-
union motive need not be dominant (i.e., larger in size than
other motives); in some cases it may be so small as the last
straw which breaks the camel's back." Thus, even though
the employees' union activities may have affected Walch's
i Anderson, who notified Respondent of the union meeting and whom
Walch described as "loyal," was not laid off, nor was Essaff
8 N L R B v Ayer Lar Sanitarium, 436 F 2d 45, 50 (C A 9, 1970)
9 See N L R B v Adam Loos Boiler Works Co, 435 F 2d 707 (C A 6,
1970), N L R B v West Side Carpet Cleaning Co, 329 F 2d 758, 761 (C A 6,
1964), enfg 136 NLRB 1694 (1962)
W & W TOOL & DIE MFG CO 1007
layoff decision only "in part," it does not mean that it did
not affect his decision to a degree unlawful under Section
8(a)(3) of the Act which it is found to be here.
C. The Gissel Bargaining Order
By letter dated Friday, May 2, 1975, addressed to Re-
spondent, the Union stated that it represented a majority
of Respondent's production and maintenance employees.
It requested recognition and a meeting on May 5 or 6, for
the purpose of negotiating a collective -bargaining agree-
ment . On Wednesday, May 7, the Union filed a charge
alleging Respondent has refused to bargain with it since
May 2, 1975, the same day the four employees were laid
off. The complaint alleges that Respondent 's threats to its
employees and its layoffs of four of them, "are so serious
and substantial in character and effect as to warrant the
entry of a remedial order requiring Respondent to recog-
nize and bargain with the Union... .
Under the Supreme Court' s decision in N.L.R.B. v. Gis-
sel Packing Co., Inc., 395 U.S. 575 (1969), and the Board's
holding in Steel-Fab, Inc, 212 NLRB 363 (1974), the repre-
sentative of the General Counsel contends that, because
of the four employees' discriminatory layoffs and Re-
spondent's threat to close the plant if the Union pre-
vailed which he describes as "egregious" and "pervasive"
unfair labor practices, the Respondent's refusal to recog-
nize the Union "requires the extraordinary remedy of a
bargaining order ." He states that, under the circumstances
here present , the normal notice and reinstatement and
backpay remedies "cannot effectively purge the massive,
systematic and flagrant violations committed by Respon-
dent."
In its Gissel decision, the Board found that the employer
had interrogated employees, threatened plant closing and
individual discharges, created an atmosphere of surveil-
lance, made offers of benefit to individual employees, and
discharged two employees for their involvement in union
activities ; all in violation of Section 8(a)(1) and (3) of the
Act.10 The Supreme Court decided in Gissel that the obliga-
tion of an employer to bargain with a union may be estab-
lished, under certain circumstances , without an election
conducted by the NLRB. The Court stated that the Board
has long had a policy "of issuing a bargaining order, in the
absence of a Section 8(a)(5) violation or even a bargaining
demand, when that was the only available, effective reme-
dy for substantial unfair labor practices." n
In Gissel, the Supreme Court declared that a bargaining
order would be appropriate in two situations * (1) Where
the employer's unfair labor practices are so "pervasive"
and "coercive" that a bargaining order is the only effective
means of remedying those unfair labor practices; and (2)
where the unfair labor practices, though less flagrant in
nature, are nonetheless such that "the Board finds that the
possibility of erasing the effects of [the] past practices and
of ensuring a fair election (or a fair rerun) by the use of
traditional remedies . . . is slight and . . . [therefore] that
10 157 NLRB 1065 (1966), modified 398 F 2d 336 (C A 4, 1968), reversed
395 U S 575 (1969)
11 Id at 614
employee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order." 12
The Court emphasized that "there is still a third category
of minor or less extensive unfair labor practices , which,
because of their minimal impact on the election machinery,
will not sustain a bargaining order." 395 U.S. at 615.
Even if a union proceeds to a representation election and
loses, the Board still may order the employer to bargain
with the union if it finds that the union had a majority
before the election and the employer engaged in unfair la-
bor practices so disruptive as to dissipate the union's ma-
jority and make a fair election impossible. The key to the
issuance of a bargaining order is the commission of serious
unfair labor practices that interfere with the election pro-
cesses and tend to prevent a fair election.
The Board in a recent case held that the test to be ap-
plied under Gissel is "whether the employer's unlawful con-
duct had a `tendency' to undermine the union's majority
[status]" and not by whether the employees' discharges had
been "motivated by an intent to undermine the union's
majority." 13
In Steel-Fab, supra, a majority of the Board held that a
bargaining order was warranted to remedy, the employer's
"numerous" and "egregious" violations of Section 8(a)(1)
and (3) which had dissipated the union's majority and cre-
ated an atmosphere in which a free and fair election could
not take place. However, the majority announced the con-
clusion that, upon reexamination of Gissel-type cases, su-
pra, it was not necessary to predicate the bargaining order
on a finding of an 8 (a)(5) violation ; 14 instead, the bargain-
ing order is issued for the purpose of remedying an
employer's 8(a)(1) and/or (3) violations which have dissi-
pated a union's majority and prevented the holding of a
fair election; hence, no real purpose is served by predicat-
ing an essentially remedial order or finding a violation of
Section 8(a)(5).
According to the Board majority, the central issue in all
these bargaining order situations , as the Supreme Court's
opinion in Gissel, supra, spells out, is the propriety of the
Board's use of a bargaining order as a remedy for varying
degrees of employer unfair labor piactices It saw no point
in confusing the analysis of this central issue with the fac-
tors which it considers in deciding whether an employer
has or has not met the bargaining obligations indicia dealt
with in orthodox refusal-to-bargain 8(a)(5) cases. In the
majority's view, it distorts the analysis to predicate bar-
gaining orders on 8(a)(5) violations, and, therefore, it is
desirable to concentrate solely on an examination of an
employer's 8(a)(1) and/or (3) conduct and its impact upon
the holding of a fair election. Accordingly, the Board ma-
jority declared that in Gissel-type situations it would dis-
pense with finding an 8(a)(5) violation and instead de-
termine whether or not a bargaining order is necessary as a
remedial matter.
The principal holding of Steel-Fab, however, has been
2/d at 614
a Elling Halvorson, Inc, 222 NLRB 534 (1976)
14 Under Gissel, to determine whether or not a bargaining order should
issue as part of the remedy , the seriousness of the employer's misconduct
and its impact on the holding of a fair election ( or rerun election) were
evaluated
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recently rejected by a reconstituted Board majority. In
Steel-Fab, the then majority held as stated above that the
issuance of a bargaining order in Gissel-type cases need not
be predicated on a finding of 8(a)(5) violations. According
to this view it was sufficient where the employer is found to
have committed "substantial and serious" 8(a)(1) viola-
tions which had a tendency to "undermine majority
strength and impede the election processes." The bargain-
ing order would thus be issued as a remedy to the 8(a)(1)
violations and would operate prospectively by compelling
employer recognition of the bargaining representative
based on an assessment of the detrimental effect of this
failure to find 8(a)(5) violations. This conclusion is based
on the rationale that, inasmuch as no 8(a)(5) violation was
found at the time of the employer's first illegal conduct, the
employer was not subject to a duty to bargain in the period
between that conduct and the issuance of the Board order.
This, therefore, permitted unilateral changes in terms and
conditions which would have been impermissible 8(a)(5)
violations if the employer had been under a duty to bar-
gain during that period.
Consequently, the Board in its most recent pronounce-
ment in Trading Port, Inc, 219 NLRB 298 (1975), departed
in two major respects with particularly significant conse-
quences concerning employer unilateral changes in em-
ployment conditions and the status of strikers in such
cases. The Board held that the standard for bargaining or-
der cases under Gissel and Trading Port require a finding of
an 8(a)(5) violation and a bargaining order as of the time
that an employer embarks on a course of unlawful conduct
or has engaged in numerous and serious unfair labor prac-
tices so as to undermine the union's majority status and
thus prevent the holding of a fair election.
It would appear, therefore, that the holding in Trading
Port has restored the Board's Gissel standards, supra, which
were appproved by the Supreme Court. This conclusion is
based on the statement in Trading Port that "an employer's
obligation under a bargaining order remedy should com-
mence as of the time the employer has embarked on a clear
course of unlawful conduct or has engaged in sufficient
unfair labor practices to undermine the Union's majority
status." The Board amplified this holding by stating that,
where an employer fatally impedes the election process, he
forfeits his right to a Board election and "must bargain
with the Union on the basis of other clear indications of
employees' desires It is at this point . . . the Employer's
unlawful refusal to bargain has taken place." In short, un-
der the Gissel standards, where a union at one point had a
majority and where an employer's conduct undermined
that majority and the possibility of a fair election, under
the decision in Trading Port, an 8(a)(5) violation may be
found as of the time of that violation and a bargaining
order may be issued to remedy it and any subsequent vio-
lations
Conclusions
Since the holding in Gissel is the applicable law to be
applied in this proceeding, it would appear then that Gissel
should be revisited. In Gissel, the record reveals, that upon
learning of the presence of the union, respondent resorted
to a campaign of "extensive and egregious" unfair labor
practices in an effort to thwart and abort the union's orga-
nizational drive. The timing of Respondent's unfair labor
practices, commencing almost immediately after the orga-
nizational drive began and persisting until after the time of
the election, persuaded the Supreme Court that the unfair
labor practices were calculated to, and in fact did, dissipate
the majority which the union had acquired. In these cir-
cumstances, held the Court, a bargaining order was re-
quired to repair the effects of such unfair labor practices.
For this reason, and also because Respondent's unfair la-
bor practices were of such a nature as to make the erasure
of their effects by traditional remedies and holding of a fair
and coercion-free rerun election improbable, if not impos-
sible, the court found that on balance the rights of the
employees and the policies of the Act would be better ef-
fectuated by reliance on the employee sentiment as ex-
pressed in the authorization cards which they signed. "Ac-
cordingly," stated the Supreme Court, "as there is no
question that the union had been validly designated by a
majority of the employees as their representative when the
union renewed its bargaining demand, we find that by re-
fusing to honor the union's bargaining demand and by en-
gaging in the numerous unfair labor practices found by the
Trial Examiner, Respondent violated Section 8(a)(5) and
(1) of the Act, and that the policies of the Act will be
effectuated by the imposition.of a bargaining order to rem-
edy the Respondent's refusal to bargain, as well as its other
unfair labor practices herein found." (Emphasis supplied.)
It would appear, therefore, that the key to the issuance of a
bargaining order under the Gissel doctrine is the commis-
sion of serious unfair labor practices which interfere with
the election processes and tend to prevent a fair election.
The Gissel opinion established the following principles-
A bargaining order may be issued to redress unfair labor
practices so coercive that such an order would be needed
to repair their unlawful effects of those unfair labor prac-
tices even in the absence of the violation of an 8(a)(5) duty.
Additionally, in circumstances where the unlawful conduct
is less flagrant in nature, the Board may find an 8(a)(5)
violation and issue a bargaining order if the possibility of
erasing the effects of the unfair labor practices and ensur-
ing a fair election or a fair rerun by the use of traditional
remedies is slight, and the employees' preference, as ex-
pressed through authorization cards, would be better pro-
tected by a bargaining order.
It is difficult to frame legal principles or guidelines that
would encompass every possible variation of employer
misconduct involving the circumstances under which bar-
gaining orders will issue without an election. Each case
must perforce be decided on an ad hoc basis. This was the
approach of the Board in California Pellet Mill Company, a
subsidiary of Ingersall-Rand Company, 219 NLRB 435
(1975), where the respondent during a union organizational
campaign was alleged to have violated Section 8(a)(1) by
unlawfully instituting a wage increase, adopting a program
whereby employees could discuss their problems directly
with the respondent employer; a supervisor threatening
employees that restrictions might be placed on their work-
ing conditions if they selected the union; and a company
official promising employees benefits during the organiza-
W & W TOOL & DIE MFG CO 1009
tional campaign. In California Pellet Mill Company, supra,
respondent conducted an employee survey with respect to
employees' complaints as to working conditions and solic-
ited employee suggestions to rectify them and also alleged-
ly discharged an employee for discriminatory reasons. The
General Counsel argued that where the unfair labor prac-
tices are "pervasive and aggravated" so as to preclude a
fair election, a bargaining order was warranted to remedy
respondent's "serious" violations which prevented the
holding of a fair election. The Administrative Law Judge
dismissed the complaint in its entirety. The Board on re-
view, however, held that respondent violated Section
8(a)(1) when it made recommendations to its parent com-
pany (Ingersall-Rand which had recently purchased it), for
improved employee benefits. Also when it instituted an
employee grievance committee to ascertain their com-
plaints, the Board found such action discouraged Califor-
nia Pellet Mill's employees from supporting the union In
addition, the Board dismissed 8(a)(3) allegations with re-
spect to a discriminatory discharge and also 8(a)(l) allega-
tions involving national wage increases which were granted
at all eight of Ingersall-Rand's plants in the United States,
including its recently acquired California Pellet Mill Com-
pany. The Board also dismissed allegations that the Re-
spondent instituted a program whereby employees could
discuss their problems directly with the respondent em-
ployer and an allegation involving threats by a supervisor.
The Board concluded by denying the General Counsel's
request for an order that respondent be required to recog-
nize the union and to bargain collectively with it as
respondent's unlawful actions "were not sufficiently perva-
sive to prevent the holding of a free and fair election." The
Board, in specifying the reasons underlying its refusal to
issue a Gissel bargaining order, observed that "in cases
such as this one, it is difficult for the Board to decide
whether a bargaining order should issue," stating:
General Counsel requests an order that Respondent
be required to recognize the Union and to bargain
collectively with it. It is not disputed that the Union
represented a majority of the employees in an appro-
priate unit of office and technical employees on all
material dates. Such a remedy was approved by the
Supreme Court in N L.R.B. v. Gissel Packing Co, Inc,
395 U.S. 575 (1969). In cases such as this one, it is
difficult for the Board to decide whether a bargaining
order should issue. On one hand, we have found that
Respondent has engaged in serious unfair labor prac-
tices. On the other hand, not all violations of Section
8(a)(1) are sufficiently egregious to warrant a bargain-
ing order. Having carefully considered all the circum-
stances of this case and noting that we have dismissed
a majority of the allegations of the complaint, we shall
not issue a bargaining order as part of the remedy. In
doing so, we neither condone Respondent's unlawful
activity nor discount the seriousness of such unlawful
activity. However, we are not convinced that
Respondent's unlawful actions, which consisted pri-
marily of statements made by Respondent President
Soper in one speech on September 16, are sufficiently
pervasive to prevent the holding of a free and fair elec-
tion. Accordingly, we shall deny General Counsel's re-
quest that we order Respondent to recognize and bar-
gain with the Union. 15
In this proceeding it has been found that the Respondent
discriminatorily laid off four employees in violation of Sec-
tion 8(a)(3). Also alleged in the complaint as a violation of
Section 8(a)(1) are Walch's threats to close the shop if the
employees selected the Union as their representative. As to
what constitutes a threat, in the context of Walch telling
his employees that he would close the shop if they went
union , the Court of Appeals for the Ninth Circuit stated in
Lenkurt Electric Co. v. N L.R.B., 438 F.2d 1102, 1105, 1106
(1971), citing Gissel, 395 U.S. 575, 618:
It is well established law that an employer has the
right to express opinions or predictions of unfavorable
consequences which he believes may result from
unionization. Such predictions or opinions are not vio-
lations of the National Labor Relations Act if they
have some reasonable basis in fact and provided that
they are in fact predictions or opinions rather than
veiled threats on the part of the employer to visit retal-
iatory consequences upon the employees in the event
that the union prevails.
The most recent and authoritative enunciation of
the rule is found in N L R B. v Gissel Packing Co,
Inc., 395 U.S. at 618-619, . . . [where] the Supreme
Court there set forth a clarification of the standards to
be used in determining the impact of an employer's
pre-election statements. The [Supreme] Court stated:
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization. See Textile
Workers v Darlington Mfg Co., 380 U.S. 263, 274,
n. 20 (1965). If there is any implication that an em-
ployer may or may not take action solely on his own
initiative for reasons unrelated to economic necessi-
ties and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without the
protection of the First Amendment. We therefore
agree with the court below that "[c]onveyance of the
employer's belief, even though sincere, that union-
ization will or may result in the closing of the plant
is not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
is See N L R B v General Stencils , Inc, 438 F 2d 894, 901 , 902 (C A 2,
1971)
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof." 397 F.2d 157, 160, 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" N.L R B v. River Togs, Inc., 382
F.2d 198, 202 (2d Cir. 1967).
This opinion it would seem , stated the Ninth Circuit
Court of Appeals, in Lenkurt, supra, at 1106 "estab-
lish[es] two standards by which an employer's utter-
ances may be objectionable It appears clear that an
employer may not make predictions which indicate
that he will , of his own volition and for his own rea-
sons , inflict adverse consequences upon his employees
if the union is chosen . This would constitute a threat
of retaliation . Also, an employer may not, in the ab-
sence of a factual basis therefor, predict adverse con-
sequences arising from sources outside his volition
and control. This would not be a retaliatory threat,
but would be an improper restraint nevertheless.
N.L.R.B. v. C. J. Pearson Co, 420 F.2d 695 (C.A. 1,
1969) Thus, an employer may not impliedly threaten
retaliatory consequences within his control , nor may
he, in an excess of imagination and under the guise of
prediction , fabricate hobgoblin consequences outside
his control which have no basis in objective fact.
With these basic teachings I n mind , we turn to an evalu-
ation of what legal incidence flows from Walch 's statement
to his employees , both before and after union activity was
going on, that he would close the shop if the employees
chose to be represented by the Union . It might be argued
these alleged threats by Walch were a few minimal isolated
incidents which do not reveal a pattern of flagrant conduct
on Respondent 's part and thus isolated . Moreover , it could
be contended that such "threats" were predictions of unfa-
vorable consequences resulting from unionization rather
than a threat to visit such consequences on the employees
in the event of unionization as "Section 8(c) not only gives
the employer the right to express his opinion in opposition
to the Union but also the right to express argument in
support of such opinion . The right would be of little value
if the employer was forbidden to point out in what way the
advent of the Union would not work to the benefit of the
employees , but to their serious harm " 16 However, based
on the credited testimony supra, and in the context and
circumstances under which the four employees were laid
off immediately following the union meeting, including
Walch telling the employees he would close the plant if
they selected the Union as their bargaining representative,
it is found that this was a threat within the meaning of
Section 8(a)(1) of the Act.17
Having considered all these circumstances detailed
above, it is concluded and found , based on the applicable
law as enunciated by the Supreme Court in Gissel and the
Board in its subsequent decisions interpreting Gissel, that a
bargaining order is not warranted to remedy the unfair
labor practices committed by Respondent.
In arriving at this conclusion, the Board's recent decision
in Trading Port, Inc., 219 NLRB 298 (1976), has been con-
sidered but it is believed that it is not applicable here as not
only were the unfair labor practices there found to be per-
vasive and serious but equally, if not most important, Re-
spondent committed two substantial independent viola-
tions of Section 8(a)(5). As was stated by the Board:
"Respondent had committed (and thereafter continued to
commit) unfair labor practices of such magnitude and per-
vasiveness that the possibility of a fair election had com-
pletely vanished . . . [so that] Respondent had forfeited its
right to an election. . . ... Moreover, the Board found that
Respondent's unlawful and numerous violations prolonged
and aggravated an "unfair labor practice strike" that was
triggered by Respondent's proscribed conduct vis-a-vis its
employees. The Board in considering the Supreme Court's
Gissel decision and its own Steel Fab holding stated in
Trading Port, supra, that the "correct approach to an is-
suance of and legal basis for a bargaining order lies some-
where in between [Gissel and Steel Fab]."
For the reasons delineated above, it is found that the
factual situation in this proceeding neither reveals egre-
gious nor severe unfair labor practices preventing the pos-
sibility of a fair election nor are the unfair labor practices
committed by Respondent substantial violations within the
meaning of the Gissel doctrine so as to render a fair elec-
tion unlikely. It should also be emphasized that the evi-
dence reveals there is little doubt the amount of business
Respondent had on hand in April and May had been ap-
preciably reduced due to economic conditions. Moreover,
the unfair labor practices found here have not been shown
by a preponderance of the evidence to have rendered a
"fair and reliable election impossible." 18 It should be
borne in mind that the Supreme Court in Gissel stated:
"We emphasize that under the Board's remedial power
there is still a third category of minor or less extensive
unfair labor practices, which because of their minimal im-
pact on the election machinery, will not sustain a bargain-
ing order " 11 Accordingly, it is found for the reasons stated
above and in the Remedy section below that the facts here-
in and the applicable law do not support nor require the
issuance of a bargaining order against the Respondent.20
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices engaged in by Respondent
occurring in connection with its operations described
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
18 N L R B v Gissel Packing supra at 614, 615
16 Surprenant Manufacturing Co v N L R B, 341 F 2d 756, 759-760 (C A 19 395 U S at 614-615
6, 1965) 20J A Conley Company, 181 NLRB 123 (1972), WCAR, Inc, 203 NLRB
17 N L R B v Gissel Packing Co, Inc, 395 U S 575, 616, International 1235 (1973), Servico Protective Covers, Inc, 199 NLRB 977 (1972). Stoutco,
Union of Electrical Radio and Machine Workers, AFL-CIO v N L R B, 289 Inc, 180 NLRB 178 (1969), Schrementi Bros , Inc, 179 NLRB 853 (1969),
F 2d 757, 763 (C A D C 1960) Blade-Tribune Publishing Co, 180 NLRB 432 (1969)
W & W TOOL & DIE MFG CO. 1011
III. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act, the Order herein will require Respondent to cease
and desist therefrom and to take such affirmative action
described below, as will effectuate the policies of the Act.
Concerning recognition of the Union, the General Counsel
urges, and Respondent resists, the entry of a bargaining
order. As found above, the unfair labor practices commit-
ted by Respondent were not so numerous, pervasive, seri-
ous, or disruptive in nature so as to preclude the holding of
a fair election, as explained above and below.
Having found that Respondent discriminatorily laid off
Cecil Culver on April 28, and Greg Redburn, Daniel Lash-
in, and James Price on May 2, it will be recommended that
Respondent make said employees whole for any loss of
earnings suffered by reason of the discrimination against
them for the period of such discrimmation.2I Backpay with
interest at the rate of 6 percent per annum shall be comput-
ed in the manner set forth in F W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and be added to such backpay.
The decisions of the Board and courts hold that the
proximate result of Respondent's commission of unfair la-
bor practices must be "substantial" and the cumulative ef-
fect of the proscribed conduct should be considered and
weighed in combination. It is not believed the violations
found here, in their cumulative effect, are sufficiently "sub-
stantial" to justify the severe remedy of a Gissel order.22
When the Gissel standards are applied to the facts of the
instant case, it would seem that a bargaining order is not
warranted. The violations of Section 8(a)(1) and (3), which
it has been found the Respondent committed, were not of
such a substantial nature, as described above, considering
all the relevant circumstances; nor do they create a situa-
tion adversely affecting the Union's ability, if it so desires,
to establish its representative status in a Board-conducted
election. This strengthens the conclusion that the adverse
effects of the Respondent's unfair labor practice violations
committed approximately a year ago, prior to the holding
of a representation election, should be reasonably and ade-
quately dissipated through the utilization of the traditional
remedies . Furthermore, any new employees who may have
been hired subsequently to May 5, when the unfair labor
practice charges were filed or the date when litigation even-
tually concludes in this proceeding, should be considered
Thus, a bargaining order might impose representation on
employees in futuro, some of whom may not have been
employed by Respondent when the violations of Section
8(a)(1) and (3) were committed in this proceeding.
Furthermore, it is believed the effects of these unfair la-
bor practices found herein are not sufficiently "pervasive"
21
Culver was recalled on June 12 and worked until June 17 , when he
voluntarily quit, Redburn declined on June 19 , an offer to return to work as
did Lashin on May 16 Lashin , however, was reemployed by Respondent
the following September and Price returned to work on June 21
22 The court in N L R B v Flomatic Corporation , 347 F 2d 74, 77-80 (C A
2, 1965), described such a remedy as "strong medicine "
and "lingering" to justify a determination that a subse-
quent election could not be held which would be reason-
ably free from the adverse influence of the Respondent's
unlawful action. This is indicated by three of the discrimi-
natees now being employed by Respondent and the fourth
voluntarily quitting after being recalled to work. It is
found, therefore, that "the possibility of erasing the effects
of past practices and of ensuring a fair election . . . by the
use of traditional remedies" is so evident here, within the
teachings of the Gissel doctrine, as to warrant rejecting the
General Counsel's proposed bargaining order in favor of
the "preferred" election process. 2 Furthermore, the Board
in California Pellet, supra, stated that "not all violations of
Section 8(a)(1) are sufficiently egregious to warrant a bar-
gaining order." By analogy to the Board's pronouncement
there, it seems stare decals would manifest that the same
distinction should make plain that likewise not all viola-
tions of Section 8(a)(3) are "sufficiently egregious to war-
rant a bargaining order." To hold otherwise would lend
validity to the adoption of a rather wooden, mechanistic
and overbroad interpretation which would label all 8(a)(3)
violations in the context of the Gissel doctrine, per se suffi-
ciently egregious so as to require, pro forma, a bargaining
order in the case of all proscribed terminations, regardless
of mitigating or extenuating circumstances. See Elling Hal-
vorsen, Inc., 222 NLRB 534 (1976), recently decided by the
Board and discussed, above. The four layoffs here in the
context of Respondent having recalled three of the employ-
ees back to work as of the time of the hearing and in the
light of the Supreme Court's holding that an employer has
a right to an election so long as he does not fatally impede
the election process,24 it would seem, as stated in Gissel,
that a fair election under the particular circumstances here
present, would be "ensur[ed] by the use of traditional reme-
dies "
Upon the basis of the foregoing findings and conclusions
and upon the entire record in this case, there are made the
following:
CONCUSIONS OF LAW
1. By threatening that it would close its shop if they
selected the Union as its representative, in order to dis-
courage membership in, sympathy for, and activity on be-
half of the Charging Union, Respondent violated Section
8(a)(1) of the Act.
2. By laying off Cecil Culver, Greg Redburn, James
Price, and Daniel Lashin because of their membership in
or activities on behalf of the said Union, Respondent en-
gaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
3. Except as found above, Respondent has not engaged
in the other unfair labor practices alleged in the complaint.
[Recommended Order omitted from publication.]
23
Gissel Packing Co, Inc, supra at 602 and 614
24 Linden Lumber Division, Summer & Co v N L R B, 419 U S 301
(1974), cited in California Pellet, supra