Foster Electric

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1253 (N.L.R.B. 1992)

1253
308 NLRB No. 184
FOSTER ELECTRIC
1 On May 12, 1992, the Respondent filed a motion requesting that
the record be reopened to receive into evidence charges filed by
discriminatee Isidro Nascianceno with the Indiana Civil Rights Com-
mission and the Equal Employment Opportunity Commission alleg-
ing that he was discharged because of his national origin/Hispanic
ancestry. The Respondent asserts that if Nascianceno’s claim of dis-
charge because of national origin were admitted into evidence, the
judge could not find that Nascianceno was discharged because of his
union activity. On May 26, 1992, the General Counsel filed a re-
sponse to the motion and on May 29, 1992, the Respondent filed
a response to the General Counsel’s response. The Respondent’s mo-
tion is denied, as the proffered evidence would not alter the result
in this case. See Central Broadcast Co., 280 NLRB 501 fn. 1
(1986); Board’s Rules and Regulations, Sec. 102.48(d)(1).
The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has excepted to the judge’s finding that on March
7, 1991, Swalek, the Respondent’s vice president, learned from
Daugherty, the Union’s business representative, that Nascianceno
was a ‘‘complainant’’ in the unfair labor practice charge filed the
week before. The Respondent contends that the record does not sup-
port such a finding and that Nascianceno’s March 8 layoff was for
reasons unrelated to his union activity. We disagree. Daugherty testi-
fied without contradiction that he specifically mentioned
Nascianceno by name to Swalek in their March 7 discussion of the
allegations contained in the charge. In this regard, Daugherty ex-
plained to Swalek that the allegation relating to the threat of dis-
cipline or discharge of employees who voiced dissatisfaction with
the Employer referred to Swalek’s statement to Nascianceno, on
Nascianceno’s return to work after a 2-day illness, that Swalek
would accept his doctor’s excuse but that the Union would require
him to return to the hall. On cross-examination, Daugherty again tes-
tified without contradiction that he identified Nascianceno to Swalek
on March 7 in explaining this allegation. In these circumstances, we
agree with the judge that Swalek identified Nascianceno as a com-
plainant to Swalek on March 7.
At fn. 23 of her decision, the judge stated incorrectly that if
Nascianceno returned to work, he would be the fourth of the seven
employees who had signed authorization cards. If Nascianceno re-
turned to work, he would, in fact, be the third employee still work-
ing for the Respondent who had signed an authorization card. In this
regard, we note that employee Jim Swalek never signed an author-
ization card.
Chairman Stephens would not find that the Respondent impliedly
threatened its employees with a decrease in wages by initially mis-
representing the union-entry level wage.
2 In agreeing with the judge that the election should be set aside,
we find it unnecessary to rely on her finding that the Respondent
engaged in objectionable conduct by holding a pizza party the night
before the election.
We agree with the judge that a Gissel bargaining order is required
in the circumstances of this case where Swalek, the Respondent’s
vice president who manages the Company and directs the employees
on a daily basis, committed numerous violations, including certain
‘‘hallmark’’ violations, that affected the entire small bargaining unit.
See, e.g., Astro Printing Services, 300 NLRB 1028 (1990).
3 The General Counsel has excepted to the judge’s failure to in-
clude in her recommended Order a provision making Nascianceno
whole for any loss of earnings he may have suffered as a result of
his unlawful layoff on March 8, 1991, and to the judge’s failure to
conform the notice to the Order. We find merit in these exceptions
and shall modify the recommended Order and substitute a new no-
tice accordingly.
Foster Electric, Inc. and Local Union 697, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Cases 13–CA–30120 and 13–RC–
18184
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 27, 1992, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs and the General Counsel filed a brief in
response to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Foster Electric, Inc., High-
land, Indiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following after paragraph 2(a) and relet-
ter the subsequent paragraphs.
‘‘(b) Make employee Isidro Nascianceno whole for
any loss of earnings suffered as a result of his layoff
on March 8, 1990, with interest.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise noted, all events took place in 1991.
2 Local Union 697 will be referred to as ‘‘the Union’’; Foster
Electric, Inc. as ‘‘the Respondent’’; and the National Labor Rela-
tions Act as ‘‘the Act.’’
3 Exhibits offered by counsel for the General Counsel (General
Counsel) will be designated G.C. Exh. and Respondent’s exhibits as
R. Exh. followed by the appropriate exhibit number. Transcript ref-
erences will be cited as Tr. followed by the page number. R. Exh.
12, 13, and 14, submitted after the hearing, are admitted into evi-
dence without objection.
4 There are three other corporate officers and shareholders who
take no active role in the management of the Company.
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT lay off, discharge, or otherwise dis-
criminate against you for supporting Local Union 697,
International Brotherhood of Electrical Workers, AFL–
CIO, or any other union.
WE WILL NOT lay off, discharge, or otherwise dis-
criminate against you for participating in the filing of
charges with the National Labor Relations Board.
WE WILL NOT threaten you with closure of the busi-
ness, loss of jobs, a decrease in pay, or loss of em-
ployment conditions if you support or select the Union
as your collective-bargaining representative.
WE WILL NOT coercively interrogate you about your
union support or sympathies.
WE WILL NOT promise you benefits such as a pen-
sion plan, increased wages, and tuition payments in
order to discourage you from supporting or selecting
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the following appropriate bargaining unit:
All full-time and part-time electrical workers,
electricians, and helpers employed at the Employ-
er’s facility presently located at 8344 Kennedy
Avenue, Highland, Indiana; but excluding all
managers, clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
WE WILL offer Isidro Nascianceno immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL make Isidro Nascianceno whole for any
loss of income resulting from his layoff on March 8,
1991, plus interest.
WE WILL notify Isidro Nasianceno that we have re-
moved from our files any reference to his layoff and
discharge and that the layoff and discharge will not be
used against him in any way.
FOSTER ELECTRIC, INC.
Jessica T. Willis, Esq., for the General Counsel.
Charles R. Deible, Esq., of Hammond, Indiana, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a charge
filed on March 19, 1991, as amended on April 26,1 by Local
Union 697, International Brotherhood of Electrical Workers,
AFL–CIO, a complaint issued on April 9 alleging that the
Respondent, Foster Electric, Inc., violated Section 8(a)(1),
(3), and (4) of the National Labor Relations Act.2
Subsequent to an election held on March 22 among Re-
spondent’s employees, the Union filed objections on March
29. On April 30, the Regional Director for Region 13 issued
a report on objections, order consolidating cases, and notice
of hearing consolidating Cases 13–CA–30120 and 13–RC–
18184 for trial. On May 9, Respondent filed a timely answer
to the consolidated complaint denying the commission of any
unfair labor practices.
The case was tried on October 15 to 17 in Chicago, Illi-
nois, at which time the parties were afforded full opportunity
to examine and cross-examine witnesses, and to introduce
relevant documents.3 On the entire record, including my ob-
servation of the demeanor of the witnesses, and after consid-
ering the parties’ posttrial briefs, I make the following
FINDINGS OF FACT
Jurisdiction
As Respondent admits the allegations in the complaint per-
taining to its doing business in interstate commerce, I find
that Foster Electric is an employer within the meaning of
Section 2(2), (6), an (7) of the Act. Based on uncontroverted
evidence, I also find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
The Union’s Organizational Campaign
Respondent, a residential and commercial electrical con-
tractor, with offices in Highland, Indiana, is a closely held
corporation which is managed by Company Vice President
Fred Swalek.4 At the time of the events giving rise to this
proceeding, the Respondent employed eight persons as elec-
tricians or electricians’ helpers.
In the summer of 1990, one of Respondent’s electrician
helpers, Isidro Nascianceno (Sid), applied for admission to
the Union’s apprenticeship training program to qualify as an
electrician. In September, Sid met Local 697’s business
agent, Michael Daugherty, and agreed to assist him in orga-
nizing other employees at Foster Electric. During a subse-
quent meeting on October 1, Sid signed a union authorization
card which Daugherty had provided. He also supplied the
union business agent with the names, addresses, and tele-
1255FOSTER ELECTRIC
5 Daugherty chose not to call on one employee, Jim Swalek, be-
cause he was the brother of Respondent’s owner, Fred Swalek.
6 The description of this meeting is based on the generally consist-
ent accounts of Sid, Lefkofsky and Mark Lollack.
7 Sid admitted on cross-examination that Swalek had alluded to a
401-K plan in the past, but only as something he hoped to do.
phone numbers of his coworkers. During the balance of the
month, Daugherty met privately with all but one of the other
employees and obtained their signatures on authorization
cards as well.5 Daugherty testified that he explained to each
employee that his signature was needed before the Union
could represent him, that he retained the right to revoke his
authorization at any time either by oral or written request,
and that the signed card could be used by the Union to sup-
port its request to the employer for voluntary recognition or
to petition for an election.
After obtaining signatures on seven cards, Daugherty tele-
phoned Fred Swalek and arranged a meeting which took
place on November 27. At this time, Daugherty spoke in
general terms about the Union’s benefits. Thereafter, the two
spoke by phone on several occasions and then met in person
once again in January. On this occasion, Daugherty ex-
plained the Union’s examination procedures and described
the wage rate structure. Daugherty believed that he told
Swalek that although the lowest wage rate was $7.13, an em-
ployer had the option to ‘‘redline’’ an employee’s earnings;
that is, to continue paying an individual the same wage rate
if it exceeded the union wage. In addition, Daugherty de-
scribed the Union’s no-fail examination process which was
used to determine the employee’s level of skill.
Two weeks later, the two men met again and at this time,
Daugherty presented Swalek with a contractor’s package and
explained its contents, including, inter alia, information about
the requirements to become a signatory to the collective-bar-
gaining agreement, wage information literature and a letter of
assent by which the employer adopts the labor contract be-
tween the Union and the National Electrical Contractors As-
sociation (NECA).
According to Daugherty, at this meeting, Swalek assured
him he had consulted with his attorney and accountant and
was agreeable to becoming a union contractor. However, he
indicated he wanted to seek his employees’ views about join-
ing the Union and intended to meet with them within the
week. Swalek declined Daugherty’s offer to attend such a
meeting, indicating that he first preferred to meet with the
employees alone.
Daugherty further testified that he spoke with each em-
ployee to alert them of Swalek’s intent to meet with them.
Then, in early February, Daugherty telephoned Swalek to ask
about the outcome of the meeting. Swalek informed him that
the workers were opposed to the Union and that the married
men were particularly concerned about having to take an un-
paid day off to attend the Union’s apprenticeship school. In
fact, Daugherty learned during one of his several meetings
with the workers that Swalek had not spoken to them about
the Union or assessed their views on representation.
A week later, after obtaining the consent of the seven men
who had signed authorization cards, Daugherty filed a peti-
tion for an election with the National Labor Relations Board.
During a subsequent telephone conversation, Swalek ex-
pressed ‘‘concern about what (Daugherty) had gotten him
into.’’ (Tr. 73) and asked the union agent to identify the em-
ployees with whom he had spoken. Daugherty refused to do
so.
The Respondent’s Countercampaign
In the latter part of February, Swalek discussed the Union
on numerous occasions with the employees during im-
promptu meetings at the shop. At the outset of one such
meeting on or about February 26, just after Respondent was
notified that the Union had petitioned for an election, Swalek
told the men that they were free to vote as they chose.6
Then, he launched into a discussion of working conditions
with and without the Union. According to several employees,
he asserted that their starting rate under union wage scales
would be $5.36 an hour, while he would have to contribute
$5.80 per man hour to cover the cost of benefits. He went
on to contend that he could not afford the Union, that he
would have to raise his bids, would lose work, and have to
close his doors. In addition, Swalek pointed out that while
he was a lenient boss who excused tardiness and granted sick
leave, such conduct would not be tolerated by the Union so
that the men would lose their jobs. When one of the employ-
ees remarked that the Union offered better wages and bene-
fits as well as an opportunity to go to apprenticeship school,
Swalek responded that if the men wanted training, he would
pay for them to take night courses at a nearby technical insti-
tution, Prairie State, as he had in the past. Lefkofsky testified
that Swalek described certain benefits he intended to obtain
for them such as a retirement fund and health insurance. Sev-
eral of the employees further stated that Swalek mentioned
a pension and profit sharing plan, a matter which he had
raised in the past. They also said he wanted to grant them
well-deserved raises, but would have to defer them at the
present time, in part because of the Union’s advent.
Sid testified that he questioned Swalek about the accuracy
of several of his remarks during this meeting. First, Sid
pointed out that Swalek’s pay scale figures differed from
those which the Union had presented to the men. He then
asked if Daugherty could speak to the entire group about this
matter, but Swalek said such a meeting would be pointless.
Sid also wondered aloud why Swalek had not mentioned a
pension plan prior to this time. Swalek answered that there
was no need to do so.7 Sid claimed that Swalek then point-
edly told him if he was so interested in the Union, he should
apply to its apprenticeship program.
Shortly after this group meeting, Lefkofsky spoke privately
with Swalek and asked for a raise he had been promised a
year before, but Swalek said he could not promise him any-
thing at that time. Swalek also repeated his contention that
journeymen were paid $5.35 an hour, that under the Union,
the men would work only 32 hours a week, and that he prob-
ably would not be able to retain all his current employees
if they failed to qualify as journeymen on the Union’s test.
Daugherty telephoned Swalek after the February 26 meet-
ing on hearing from some of the employees about their em-
ployer’s statements. During their conversation, Swalek ex-
pressed concerns about going out of business and bidding on
union jobs. Daugherty explained that there was a gradual
transition to the status of union contractor and advised him
to contact a representative of NECA (the National Electrical
Contractors’ Association) who could advise him about pro-
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Miller stated that in addition to Lefkofsky, employees Joe
Miskuf, Dave Sabol, and Mark Lollack also attended the meeting.
9 Lollack generally concurred with Swalek’s version of their con-
versation although he was not sure of the date on which it occurred.
grams to assist employers with job bidding and other busi-
ness procedures.
A former employee, Charles Miller, testified about another
meeting on February 28 at which Swalek again spoke about
what might occur should the Union prevail. Thus, Miller re-
called that Swalek said there would be no transition period
during which the Respondent would shift from nonunion to
union status and that he would have to pay inflated wage
rates and benefits. As a result, he would be compelled to
charge higher rates which would cause a loss of contracts
and force him to close his doors.8 Miller further maintained
that on more than one occasion, Swalek said, ‘‘I would rath-
er close my doors than go union.’’ (Tr. 238–239.)
Daugherty filed an unfair labor practice charge with the
Board on February 28. The following week, during another
telephone conversation, Swalek and Daugherty discussed
each allegation in the charge. Specifically, Daugherty cau-
tioned Swalek against telling his employees that representa-
tion would mean their wages would be lowered to $5.30 an
hour when the Union’s lowest wage rate was, in fact, $7.12.
Daugherty also testified that he reminded Swalek about the
custom of ‘‘redlining,’’ a practice which permitted a contrac-
tor to continue paying an employee a higher wage rate even
if he did not score well on the test administered by the
Union to determine a worker’s electrical knowledge. The two
men next discussed another element in the charge alleging
that the Respondent had threatened to discipline or discharge
employees who voiced ‘‘dissatisfaction with the Employer.’’
(G.C. Exh. 4.) Daugherty told Swalek that in filing this
charge, he was referring to a situation involving Sid
Nacianceno who, after being absent on February 27 and 28,
returned to work with a doctor’s excuse for those 2 days. At
that time, Sid stated that Swalek cautioned him that such ab-
sences would not be tolerated if the shop was organized; in-
stead, he would be required to return to the union hall. Fol-
lowing this conversation, Swalek informed the workers of the
correct starting wage for union apprentices.
Miller described another conversation with Swalek on
March 1 when he and his partner, Dave Sabol, returned to
the shop at the end of the day. Stating that he wanted to talk
to them individually, Swalek first spoke privately with Sabol
for approximately half an hour. Then, he met with Miller and
asked him how he felt about the Union. When Miller replied
that he still was unsure, Swalek said everyone had a right
to choose but the men better know what they were getting
into. As far as he was concerned, however, if the Union was
successful in its organizational effort, he would not be able
to afford to fulfill his dreams for the Company. Swalek then
started to discuss a 401-K plan and showed Miller a brochure
about it. Miller seized the opportunity to ask for a raise and
also mentioned his interest in the Union’s educational pro-
gram. Swalek indicated that raises would depend on his prof-
it margin, but assured Miller that he would help him pay for
training at Prairie State College. Swalek recalled this meeting
and except for denying that he asked Miller about his union
sympathies, did not expressly repudiate any of the other
comments which Miller attributed to him.
Lollack, who still was in Respondent’s employ at the time
of the hearing and whose loyalty to his employer was pal-
pable, testified unwittingly that Swalek repeatedly said he
‘‘would close his doors if we went union. (Tr. 393.) Lollack
also disclosed that Swalek often commented that ‘‘if any of
you guys want to go union, quit and go join the union. . . .
There are plenty of shops that are hiring that are union
shops. Quit and go work for them’’ (Tr. 382).
Swalek offered a more benign version of various remarks
he made during the preelection period. He explained that
after receiving instructions from the Board, he believed he
could not bestow any benefits upon the employees in the pe-
riod preceding the election and explained as much to the
men. Specifically, he told them he could not implement a
pension and profit sharing plan or grant raises prior to the
election.
He also acknowledged that he discussed the possible los-
ing of the Company with his employees on at least three or
four occasions, but insisted that his comments invariably fol-
lowed a uniform script. He stated that he consistently ex-
plained to the workers that after comparing the Union’s wage
rates with the rates he charged his current contractors, he
concluded that he would have to raise his rates to meet union
scale. The contractors with whom he did business told him
that they could not accept any increase in labor costs and
therefore, would transfer their business to other companies.
Consequently, Swalek concluded that he eventually would be
unable to sustain his overhead and costs and eventually
would go out of business. However, he urged his employees
not to be concerned about him for he would survive.
Swalek also admitted that he made certain statements to
his employees as to the likelihood that under a union regime,
they would not retain their positions at Foster Electric. He
explained that his remarks stemmed from the belief that none
of his workers would qualify as journeymen under the
Union’s testing program. Consequently, since he assumed
that he would be permitted to retain only two of his men as
apprentices, he told the employees that the Union would
refer the rest of them to other employers. To gild the lily,
Respondent’s counsel then asked Swalek, without objection
from government counsel, if he would characterize such re-
marks as tantamount to saying that they would be discharged
from their current positions with Respondent. Swalek an-
swered in all candor, that he merely was trying to explain
to the men what he thought would happen to them.
Swalek further conceded that on the morning before the
election, Lollack asked to speak to him privately and in re-
sponse to Lollack’s request, promised to help him locate a
general contractor or lender who could provide him favorable
financial terms to purchase a house. As the conversation pro-
gressed, Lollack told Swalek he was so disturbed and unde-
cided about the union election, he might not vote, or might
simply follow the majority, Swalek encouraged him to make
up his own mind.9
Office Manager Sheila Gardener corroborated much of
Swalek’s testimony regarding his comments to employees in
the weeks preceding the election. For example, she con-
firmed that on one occasion, Swalek told a group of employ-
ees that ‘‘if the Union did come in there would be a testing
process, that they would be rated . . . . And according to
what the Union base was . . . they would take a cut in pay
1257FOSTER ELECTRIC
10 Sid testified that he called Swalek on each of these days and
explained he was suffering from sinusitis.
besides taking an hourly cut, as far as hours worked per
week.’’ (Tr. 625.) Another morning, he told the entire crew
that he had to postpone implementing a 401-K plan and
freeze wages until after the union election. As for closing the
business, Gardener heard Swalek explain he could not in-
crease the prices he charged customers to compensate for the
increased costs that unionization would produce. Therefore,
ultimately, he might have to close the business, but he as-
sured the men that the Union would find them other jobs.
She also corroborated Swalek’s statement regarding the loss
of paid vacations and health benefits if the employees se-
lected the Union.
Allegations of Unlawful Layoffs
In early March, Sid and the employee with whom he gen-
erally worked, Harold Lefkofsky, completed a job and re-
turned to the shop shortly before 1 p.m. According to Sid,
when no outside assignments were available, Respondent’s
practice was to assign the workers to various chores in the
shop for the balance of the workday. Contrary to this custom,
on this occasion, Swalek sent the two men home early be-
cause of an alleged lack of work. On or about March 8, after
informing the office that they were unable to enter a particu-
lar jousted, Sid and Lefkofsky again were released from
work at 2 p.m. Sid testified that he had never before been
sent home before the end of the workday during his year of
employment with the Respondent. Lefkofsky echoed Sid’s
surprise at being sent home early, although he recalled simi-
lar occurrences when he first began working for Respondent
in 1986. Miller, who also had been one of Respondent’s sen-
ior employees, testified that during the winter months, junior
employees might occasionally be sent home early. In fact,
Mark Lollack and Tone Cooper, two of Respondent’s newer
employees, were sent home for lack of work on a few occa-
sions in March, as was Jim Swalek, Respondent’s most sen-
ior employee.
On the evening of March 7, Swalek telephoned Sid to tell
him there was no work for him the following day. However,
Sid learned that Lefkofsky, the partner he had assisted every-
day that week, did work on March 8. Lefkofsky confirmed
that he worked with Sid for the first 4 days of the week at
an ongoing project, that no other employees were assigned
to that same site, and that the project continued in subse-
quent weeks. Although he also believed that he continued
working at the same site on Friday, March 8, his timecard
shows otherwise.
Jim Swalek testified that he, not Lefkofsky, was Sid’s
partner on the week of March 4, and that he did not work
on March 8 as he had to attend an out-of-town conference.
Thus, Fred Swalek simply attributed Sid’s March 8 layoff to
a lack of work caused by his brother’s absence.
Respondent Discharges Sid Nascianceno
After working for Respondent for a little more than 1 year,
Sid was discharged on March 18. The parties offered diver-
gent accounts of the circumstances attending that event.
Sid related that at 8 a.m. that morning, after the rest of
the workhorse were assigned to various jobs, Swalek called
him into his office and handed him a letter which stated that
‘‘According to personnel records dating from the beginning
of 1991, your absenteeism has been over and above what
Foster Electric can tolerate.’’ (G.C. Exh. 5.) When Swalek
said he had missed 16 days of work, Sid was incredulous
and asked if this included his vacation leave when he had
traveled to Mississippi with Swalek’s knowledge and con-
sent, and 2 sickdays for which he had presented a doctor’s
excuse.10 Swalek acknowledged that these periods of time
were counted within the 16 days. Sid then reminded Swalek
that another employee, Tony Cooper, had disappeared for 3
days at a time without saying a word in advance; that Mark
Lollack always was sick and was junior to Sid in seniority,
and that Chuck Miller also had a poor attendance record.
Swalek allegedly responded that each of these examples pre-
sented different circumstances.
Prior to the union election, Respondent’s attendance policy
was unwritten and quite lax. A number of employees testi-
fied uniformly that they were supposed to telephone in ad-
vance if they had to miss a day’s work and, as long as prior
notice was given, no restrictions were placed on the number
of unpaid days of leave one could take. Sid maintained that
Swalek never before had warned him about his attendance or
suggested that it was was a problem. He further explained
that he had notified Swalek a month before he took unpaid
leave, that he would be absent from March 12 through l6
when he and his wife would be visiting her family in Mis-
sissippi. Several of the employees, including Miller and
Lefkofsky, also knew 2 or 3 weeks prior to March 11 that
Sid would be absent at that time. Moreover, Sid said he re-
minded Swalek during the preceding week that he would be
away on those dates. On Sunday evening, March 10, Sid
telephoned Swalek and confirmed that there was work for
him the following day. However, at 7 a.m. Monday morning,
Sid called Swalek to tell him he would be unable to work
that day because his child’s babysitter was sick. Sid main-
tained that he again reminded Swalek that he would be gone
for the balance of the week.
Swalek painted an entirely different picture of Sid’s at-
tendance pattern in the weeks preceding his discharge. First,
Swalek maintained that Sid did not request that his days off
on February 11, 14, and 15 be charged as vacation days until
after he had been absent. He also denied that Sid had alerted
him on February 27 and 28 that he was ill. Consequently,
when Sid returned to work on March 1, Swalek claimed he
told him he would have been fired had he not presented the
doctor’s note, and warned him he would be discharged the
next time he failed to call in advance. On cross-examination,
Swalek conceded that he had failed to mention in his 11
page affidavit to the Board that he had cautioned Sid on
March 1 that he would be fired after the next absence.
Respondent’s office manager, Sheila Gardener, corroborat-
ing Swalek’s testimony in this regard, stated that she was
present when Swalek verbally warned Sid on March 1. Fur-
ther, Gardener offered testimony in support of Swalek’s
claim that Sid did not request time off in advance of his trip
to Mississippi. She stated that on March 12, when Sid failed
to appear for work, Swalek asked her to telephone him, just
as she often contacted other absentee employees. When Gar-
dener said that such a call would be futile because Sid was
in Mississippi, Swalek indicated he was unaware of these
travel plans. Although Swalek stated that he was peeved
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Respondent’s records indicate that Elder worked for the Com-
pany for only 4 months.
when Sid did not report to work on March 11, apparently de-
ferring to his wife’s job as more important than his own, he
initially decided to simply warn Sid. However, he reviewed
the situation with Gardener who persuaded him that a dis-
charge was warranted. He maintained that at the time of
Sid’s dismissal, he was unaware of his leadership role in the
union campaign, although he knew through conversations
that he was a union supporter and advocated the Union’s ap-
prenticeship program.
Sid was not the first employee whose discharge was attrib-
uted to absenteeism. Swalek and Gardener both recalled that
two employees had been fired for this same reason, one in
1987, the other in 1988. Jim Swalek added that one of the
two, a Jim Elder, was fired after 6 months on the job for
he consistently failed to call in until late in the morning.11
Several other employees were terminated during the preced-
ing 5 years for falsifying company timecards.
The Election Eve Party and the Election
The union election was scheduled for March 22. On the
eve of the election, when none of the employees appeared
at the union hall as scheduled, Daugherty drove to Respond-
ent’s shop where he found Swalek, his brother Jim, and the
rest of the staff enjoying pizza and sodas to celebrate a
‘‘thank God it’s all over’’ party, referring to the election the
following morning. Respondent had sponsored other parties,
but on occasions such as Christmas and Thanksgiving.
Daugherty asked, unsuccessfully, to see a copy of a memo
prepared by Jim Swalek which compared the pros and cons
of union representation with employment by Respondent.
Several employees testified that in their view, the list was
rather one-sided, listing mainly favorable comments about
the Company and mostly negative aspects of union represen-
tation. However, Jim Swalek and Tony Cooper testified
credibly that the memo set forth several advantages offered
by the Union such as extensive benefits and education pro-
gram.
Later that same evening, Fred and Jim Swalek joined three
or four of the employees at a nightclub. Two of the employ-
ees were habitues of the night spot, but this was the first
time that either of the Swaleks accompanied them. Fred
Swalek left the group at midnight while Jim remained until
3 a.m.
The election was held the following morning. The Union
lost by a vote of four to two with two challenged ballots:
Sid’s and Jim Swalek’s. Chuck Miller testified that for about
3 weeks before the election, he declared his prounion stance
by wearing a union pin on his shirt. Moreover, he wore a
sweatshirt bearing the legend, ‘‘Union Yes’’ to the election.
Thereafter, the Union filed objections to the election alleging
misconduct by the Respondent coincident with the unfair
labor practices alleged in the instant complaint.
Discussion and Concluding Findings
A. Independent Violations of Section 8(a)(1)
1. Unlawful threats of business closure
The complaint alleges, in substance, that Fred Swalek,
made a number of statements about the adverse effects of
unionization which interfered with the employees’ right to
organize without restraint or coercion. One of the most seri-
ous allegations was that Swalek repeatedly threatened the
employees with plant closure if they selected the Union to
represent them. Respondent vigorously denies this accusa-
tion, insisting that Swalek’s comments about the future of his
business constituted protected speech within the meaning of
Section 8(c) of the Act.
Clearly, an employer’s threat to close a plant if the em-
ployees opt for union representation violates Section 8(a)(1).
At the same time, Section 8(c) safeguards an employer’s
right to express his views or opinions, as long as ‘‘such ex-
pression contains no threat of reprisal or force or promise of
benefit.’’ In other words, an employer’s right to free speech
is not absolute; it must be balanced against the employees’
right to organize or refrain from organizing, free of coercion,
restraint, and interference.
One of the more sensitive issues in balancing rights of an
employer under Section 8(c) against those of employees
under Section 7 is to determine whether an employer’s re-
marks about plant closure during a union organizational cam-
paign are permissible predictions or threats proscribed by
Section 8(a)(1). In drawing the fine line between these two,
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), pro-
vides the following guidance:
[a] prediction must be carefully phrased on the basis of
objective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his con-
trol. . . . If there is an implication that an employer
may or may not take action on his own initiative for
reasons unrelated to economic necessities and known
only to him, the statement is no longer a reasonable
prediction based on available facts, but a threat of retal-
iation based on misrepresentation and coercion.
Recognizing that ‘‘employer predictions of closedown
upon unionization are inherently fraught with overtones of
reprisal,’’ employers are under a ‘‘severe burden’’ to justify
such statements. Zim’s Foodliner v. NLRB, 495 F.2d 1131,
1137 (7th Cir. 1974). Gissel instructs employers to be par-
ticularly careful when they predict adverse effects that union-
ization may have on their business for their comments may
have an enormous impact on employees who, because of
their economic dependence, might cause them ‘‘to pick up
intended implications of the latter that might be more readily
dismissed by a more disinterested ear.’’ 395 U.S. at 617.
The record in the instant case indisputably discloses that
Swalek often made comments about having to close his shop
during the preelection period. On some occasions, Swalek
undoubtedly connected the likelihood of plant closure to his
1259FOSTER ELECTRIC
12 The Board often attaches special weight to the testimony of a
current employee who testifies against his own employment interest.
See Midwestern Mining & Reclamation, 277 NLRB 221 fn. 1
(1985).
13 Writing for the Seventh Circuit in Village IX, supra at 1368,
Judge Posner, pointing to the shift of industry from North to South,
observed that ‘‘It is well known that union wage demands some-
times result in plant closings.’’ While Judge Posner may have had
a factual basis to support his assertion, no facts were adduced in this
case to support Respondent’s claimed prediction of disaster. Com-
mon experience instructs that the need for electrical firms is wide-
spread and exists in every quarter of the country.
conclusion that he would lose contracts with current clients
as a consequence of having to raise his costs to pay the
Union’s wage and benefit package. However, several wit-
nesses, Miller and Lollack to be precise, both testified that
Swalek also stated without qualification, that he ‘‘would
close his doors if we went union.’’ I found Miller to be a
credible witness even though he parted company with the
Respondent on unfriendly terms. Lollack, a current em-
ployee, also was credible in this regard, particularly since his
testimony was driven by a desire to please his employer.12
Their recollection of Swalek’s statements establish that he
did not always tie the Company’s demise to objective fact
or to ‘‘demonstrably probable consequences beyond his con-
trol.’’ The statements which Miller and Lollack reported
were beyond the pale of protected speech—they were un-
adorned, coercive threats and could not be perceived in any
other way by an employee whose job security was at stake.
Even Swalek’s predictions of business failure, couched in
terms of high union costs and loss of customers, do not pass
muster under a careful Gissel analysis. To be sure, the first
two steps in Swalek’s syllogism had the ring of objective
truth: union wage scales and benefits may have been more
costly than those which Swalek paid his workers, and this
could have led Respondent to pass on these expenses to cli-
ents in the form of higher bids. Some of these clients might
well have turned to less costly electrical contractors in future
business dealings. But this does not tell the whole story.
Swalek made an enormous leap in concluding that the loss
of some customers would inevitably mean the death of his
company. In making this leap, he conveniently chose to dis-
regard some positive objective facts. First, he failed to take
into account Daugherty’s assurances that the Union did not
demand an instant transition from a nonunion to a union-ori-
ented business. Second, he failed to consider the possibility
of doing business with unionized contractors and ignored
Daugherty’s advice to consult with a named representative of
the electrical contractors’ association who could instruct him
in bidding practices during the transition phase. It stands to
reason that Daugherty’s interest in assisting and accommo-
dating a small business such as Respondent’s was genuine,
for neither the Union nor its members would be well served
if Swalek was forced to close his doors. In short, Swalek’s
prediction of business failure was built on his premise that
he could not compete with the same customers he previously
had served as a nonunion firm. In doing so, he ruled out the
fact that, henceforth, as a unionized shop, he would be in a
position to compete on new terms with new clients.
Respondent’s situation in this case cannot be compared to
that of the restauranteur in NLRB v. Village IX, Inc., 723
F.2d 1360, 1367–1368 (7th Cir. 1983), who, the court found,
had objective support for predicting the consequences of
unionizing by pointing to the competitive nature of the res-
taurant business and to the fact that only one restaurant in
the area was unionized, and it was doing badly.13 Here, Re-
spondent produced no evidence whatsoever as to the number
of nonunion or unionized contractors in the area, or that it
would be unable to compete in the organized arena. In fact,
Lollack testified without controversion that Swalek alluded to
the number of unionized electrical firms in the area. If this
was the case, then it is reasonable to assume that sufficient
work was available to keep those firms in business. In sum,
Swalek’s prediction of business closure based on an inability
to compete was grounded neither on fact or ‘‘demonstrably
probably consequences beyond his control.’’ Gissel Packing
Co., supra at 618. Since Respondent has failed to meet its
burden of justifying statements of shop closure on objective
evidence, I conclude that Swalek’s numerous threats in this
regard violated Section 8(a)(1) of the Act.
2. Other threats
In support of the allegation that Respondent threatened
employees with a decrease in hours and wages if they voted
for the Union, the government presented uncontroverted testi-
mony that Swalek told the employees that with union rep-
resentation, their starting wage would be approximately
$5.30 an hour and that attendance at apprenticeship training
school would limit them to 32 hours of work a week.
Some of the same employees who testified about Swalek’s
comments as to earnings and hours under the Union, also
said, in answer to Respondent’s question, that Swalek never
threatened them with a decrease in pay. Their answers sug-
gest that they took the question posed quite literally. What
they apparently did not realize is that inferential threats can
be as effective as those which are literal.
When Swalek talked about a $5.30-per-hour union wage,
he was not simply passing along what he believed was hon-
est information in a neutral manner. Set in context, his
subtext was that if you vote for the Union, I will be com-
pelled to lower your wage to accord with the lowest wage
the union offers. He failed to explain to the employees that
the wage rate they received would depend on how well they
fared on the Union’s nonfail placement test, or that he could
‘‘redline’’ (i.e., preserve) their current wages. He also failed
to discuss the prospect of overtime pay which could com-
pensate for the hours spent in apprenticeship training. By
spelling out the worst case scenario as if lower wages and
hours were the inevitable outcome of union representation,
Swalek delivered a message marred by half-truths and omis-
sions which amounted to nothing less than scare tactics. His
motive in making such pronouncements is not an essential
element in finding a violation of Section 8(a)(1). What is rel-
evant is that Swalek’s statements reasonably tended to inter-
fere with, restrain, and coerce employees in the free exercise
of their Section 7 rights.
It is true that Swalek subsequently informed the workers
that the Union’s entry level wage was $7.12, not $5.30 an
hour. However, the Respondent failed to adduce sufficient
evidence to satisfy its stringent burden under Passavant Me-
morial Hospital, 237 NLRB 138, 138–139 (1978), that
Swalek effectively cured his earlier unlawful statement.
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 As detailed at above, Lefkofsky, who was in Respondent’s em-
ploy at the time of the instant trial, testified credibly that Swalek
told the men that both the Union’s appearance and a delinquent cli-
ent prevented him from giving them well-deserved raises.
15 Sid testified that Swalek offered this benefit to Sabol who was
his cousin. Sabol denied that such a promise was made in very gen-
eral terms while Swalek was not questioned about this issue. I find
Sid’s testimony, which was quite precise in identifying the bene-
ficiary of Swalek’s generosity, more credible than Sabol’s vague de-
nial. I have credited Miller before and do so again here.
Passavant requires a repudiation to be timely, unambig-
uous, specific in nature to the coercive conduct, free from
other proscribed conduct, adequately published to the em-
ployees involved, accompanied by assurances that the em-
ployer will not interfere with the employees’ Section 7 rights
in the future and not followed by an additional illegal con-
duct. Ibid. Accord: Mohawk Liqueur Corp., 300 NLRB 1075
(1990), enfd. sub nom. Distillery Workers Local 42 v. NLRB,
951 F.2d 1308 (D.C. Cir. 1991). Here, there was no showing
that Swalek’s subsequent comments about the Union’s start-
ing wage was delivered in an unambiguous manner to all the
employees, or that Swalek assured them they would not nec-
essarily receive the lowest pay rates in the union scale, as
he previously implied. Moreover, as discussed further below,
Respondent continued to engage in unlawful conduct in its
effort to defeat the Union. In sum, since Swalek did not ade-
quately correct his unlawful statement to employees about re-
duced wages if they endorsed the Union, it remained an
uncured unfair labor practices. See Taylor Chair Co., 292
NLRB 658 fn. 2 (1989).
Swalek also did not deny contrasting his own lenient sick
leave and tardiness practices with the much ruder treatment
the employees should expect when working in a unionized
shop. His words conveyed an implied threat which, as an
analytic matter, differ little from his statements about re-
duced wages and plant closure. He presented his view of the
workers’ plight under union domination as if it was fact,
when, in reality, he conjured up a fantasy. In violation of
Section 8(a)(1) of the Act, Respondent’s comments that the
employees could expect rigid employment conditions should
they select the Union, tended to restrain and coerce them in
their right to freely choose or reject the Union as their col-
lective-bargaining representative. See Honda of San Diego,
254 NLRB 1248, 1251 (1981).
3. Unlawful promises of benefits
The complaint also alleges that Swalek promised the em-
ployees additional benefits if they rejected the Union; spe-
cifically, (1) a 401-K retirement plan, (2) wage increases,
and (3) reimbursement for technical training. Respondent at-
tempts to refute these accusations by contending that rather
than attempting to influence employee opinion against the
Union, it withheld granting benefits in the preelection period
to avoid the appearance of impropriety in accordance with
Board rules.
The number of employees, Sid included, recalled that
Swalek first raised the matter of a 401-K pension plan in the
summer of 1990. Accordingly, Respondent reasons that the
plan was not introduced as an antiunion gambit. Moreover,
Respondent claims credit for deferring consideration of the
plan as the Board requires during a preelection period. By
the same token, Respondent contends that it acted properly
in withholding raises even though they were overdue for sev-
eral employees.
Although the record supports Respondent’s claim that
Swalek generally introduced the concept of a pension plan
some months before the Union appeared on the scene, it does
not follow that when Swalek mentioned it again in the weeks
before the election, it was a matter of pure coincidence. Curi-
ously, the evidence fails to show that Swalek made any ref-
erence to such a plan between the summer of 1990 and Feb-
ruary 1991. Suddenly, in the critical weeks prior to the elec-
tion, talk of the plan revived and this time, in quite specific
terms. Thus, Swalek showed Miller a brochure relating to
pensions and described different ways a plan could be imple-
mented. He also told the employees that he had scheduled
an appointment with a pension consultant. Having dangled a
real prospect of a pension plan before his employees, he then
withdrew it in a mock display of good-faith compliance with
Board preelection precepts.
The tactic of promising a benefit and then withholding it,
purportedly to avoid committing an unfair labor practice, is
familiarly known as the ‘‘carrot and the stick’’ approach and
is condemned as interference. See Goodyear Tire Co., 170
NLRB 539, enfd. as modified 413 F.2d 158 (6th Cir. 1969).
The Board’s general rule is that an employer’s legal duty
during a preelection period is to grant those benefits which
would have been bestowed to employees in the normal
course even if the union had not been on the scene. See, e.g.,
American Telecommunications Corp., 249 NLRB 1135
(1980).
Under these principles, if Swalek previously had promised
to implement a pension plan, he would have been permitted
to do so regardless of the election. If he made no such com-
mitment, and the evidence indicates he had not, he should
not have suggested in February that he would have granted
this benefit but for the election. By reviving the employees
hopes for a pension plan, and then dashing them allegedly
because of the forthcoming election, Swalek subtly trans-
ferred blame to the Union for the denial. Swalek treated the
deferral of pay raises in the same manner.14 In this way, Re-
spondent impermissibly manipulated the pension and wage
rate issues in order to influence his employees’ attitude to-
ward the Union. In so doing, Respondent violated the Act.
NLRB v. Otis Hospital, 545 F.2d 252, 254–255 (1st Cir.
1976).
There was nothing subtle about Respondent’s offer to pay
tuition to a technical college for employees Sabol and Miller,
both of whom had expressed interest in the Union’s training
program. It was a straightforward quid pro quo: Swalek
promised the employees a benefit as a tradeoff for rejecting
the Union.15 Little discussion is needed to find this conduct
contravenes Section 8(a)(1).
4. Interrogation
Respondent also is accused of engaging in unlawful inter-
rogation, based on Swalek’s asking two employees, Miller
and Lefkofsky, how they felt about the Union. Under
Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. 760
F.2d 1006 (9th Cir. 1985), interrogation will be held unlaw-
ful if, under all the circumstances, it reasonably tended to re-
strain, coerce, or interfere with rights guaranteed by the
Act.’’ Among the factors to be considered in analyzing al-
leged interrogations are ‘‘(1) the background; (2) the nature
1261FOSTER ELECTRIC
of the information sought; (3) the identity of the questioner;
and (4) the place and method of interrogation.’’ Id. at 1178
fn. 30.
Swalek ran the Company in an informal manner; he had
frequent give and take with the employees, particularly in the
morning as they gathered in the office before embarking on
their daily assignments. The record indicates that on such oc-
casions, employees frequently put questions to Swalek about
the Union. However, this was not the comradely setting in
which the interrogations at issue here took place. In Miller’s
case, Swalek asked him to wait while he had a private inter-
view with another employee. He then called Miller into his
office where at the start of their one-on-one conversation,
Swalek asked how he felt about the Union. Thereafter,
Swalek raised the prospect of a pension plan and assistance
with technical training. Unlike Miller’s meeting, Lefkofsky
initiated his exchange with Swalek in order to press him for
a raise. After asking Lefkofsky how he felt about the Union,
Swalek resisted his entreaties for a raise while reminding him
that union apprentices received only $5.35 an hour for a 32-
hour week. He also implied that if Lefkofsky did not qualify
as a journeymen, he probably would be out of a job with
Foster Electric.
Neither Miller nor Lefkofsky were overt union supporters
nor did they appear to have much knowledge about the
Union or experience with organizational campaigns. Their
private conversations with their employer were held under
somewhat confidential circumstances. Swalek’s seemingly
off-hand question was posed in the context of promised ben-
efits to Miller and veiled threats to Lefkofsky. Swalek seems
to have been less interested in how these employees an-
swered his questions than he was in planting in their minds
a connection between their support for the Union and his lar-
gess. In the circumstances present here, I find that Swalek’s
questions were inextricably woven into coercive communica-
tions with the employees which tended to restrain and inter-
fere with their exercise of Section 7 rights.
B. The 8(a)(3) Violations
1. The March 1 and 4 layoffs were not unlawful
Paragraph VI, (a) and (b) of the complaint alleges that by
sending a number of employees home early without pay on
or about March 1 and 4, Respondent violated Section 8(a)(3)
and (1) of the Act. I do not find that the evidence supports
these allegations.
To prove that Respondent engaged in discriminatory con-
duct, the General Counsel initially must prove each element
of a prima facie case; that is, that the employees were en-
gaged in union activity, that the employer knew of that activ-
ity, and that such knowledge was a motivating factor in its
decision to take adverse action against them. If the Govern-
ment succeeds in meeting its burden, the Respondent then
must prove that it would have taken the same action even
in the absence of the employees’ union activity. See Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
Proof of Respondent’s antiunion animus is more than suf-
ficient here. Swalek’s bias was laid bare by his repeated
warnings during the preelection period that the Union would
have a disastrous impact on his business, by his elicit efforts
to lure the employees away from supporting the Union with
the bait of benefits, and by telling them they should quit if
they wanted to belong to the Union.
Given Sid’s and Lefkofsky’s prounion expressions at em-
ployee meetings, Swalek surely had reason to assume that
they were engaged in union activity. If Swalek had any
doubt about Sid’s involvement, it was put to rest when
Daugherty identified Sid as the source of at least one of the
accusations in the charge filed with the Board. However, the
conversation between Daugherty and Swalek during which
Sid’s role came to light did not occur until March 7, several
days after the dates on which the employees were sent home
early from work. Further, although in a small shop like Re-
spondent’s, it hardly seems likely that the employees’ predi-
lections either for or against the Union would be hidden for
long, direct evidence is lacking which might establish that
Swalek also was aware of Lollack’s and Cooper’s attitudes
toward the Union.
Evidence that Respondent’s employment decision was dis-
criminatory motivated is not altogether persuasive. It is true
that some employees testified that in recent times, Swalek
had given them tasks around the shop rather than send them
home early. However, they recalled that in the past, there
had been occasions when Swalek sent them home if they
completed their work early, particularly during the slow win-
ter months. Sid had no prior experience with such temporary
layoffs since he had been employed only for a year. Aware
of Swalek’s antiunion bias, as manifested most dramatically
by his shop-closing remarks, Sid had some cause to assume
that his partial layoff was part of a pattern of retaliatory ac-
tivity against union supporters. If Sid had been the only em-
ployee to be sent home early, Respondent’s motives might
have aroused greater suspicion. However, Respondent sent
four employees home on separate days in early March.
Lollack and Cooper were sent home twice even though they
were not conspicuous union proponents. Given these cir-
cumstances, I am not persuaded that Respondent’s conduct
was motivated by discriminatory causes.
2. Sid’s March 8 layoff was in violation of
Section 8(a)(3)
I reach a different conclusion about Sid’s March 8 layoff.
Swalek’s decision to target him for layoff, and subsequently,
for discharge, must be viewed in the context of his antiunion
animus, and his admission that he knew from ‘‘shop talk’’
that Sid was a union supporter. Moreover, Respondent did
not controvert Sid’s account of the February meeting at
which he challenged Swalek’s misrepresentation of the
Union’s starting wage and then, attempted, without success,
to arrange a meeting at the shop at which Daugherty would
speak to the employees. At this same meeting, Swalek told
Sid that if he ‘‘wanted the union so bad’’ he should apply
to the apprenticeship program, implying that support for the
Union was incompatible with remaining in Respondent’s em-
ploy. Significantly, it was on March 7 that Swalek, obviously
upset at being dragooned into Board proceedings, learned
from Union Business Agent Daugherty that Sid was a com-
plainant in the unfair labor practice charge filed the week be-
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 According to Daugherty’s uncontroversial testimony, when he
telephoned Respondent on March 7, Swalek demanded to know,
‘‘what I had gotten him into.’’ (Tr. 78.)
17 Swalek alleged that he cautioned Sid on March 1, the day he
returned from a 2-day illness, that his next absence would result in
discharge. Sid claimed that Swalek merely told him that his attend-
ance record would not be tolerated in an organized shop. In buttress-
ing Swalek’s testimony, Office Manager Gardener claimed that his
warning to Sid was overheard by all the employees who were stand-
ing nearby; yet, none of those who testified recalled Swalek making
such a threat. I conclude, therefore, that Swalek did not deliver this
last-chance warning to Sid on March 1.
18 If, as Respondent contends, Swalek warned Sid on March 1 that
the next absence would be his last, there is even less reason to be-
lieve that Sid would absent himself for 4 days without notifying his
employer.
fore.16 That very evening, Swalek telephoned Sid to tell him
he was laid off for the following day. The timing between
Daugherty’s phone call to Swalek and Swalek’s phone call
to Sid provides reason to infer that Swalek denied work to
Sid in retaliation for his engaging in union activity and sup-
plying information to the Board.
In addition, the General Counsel adduced evidence show-
ing that Sid was Lefkofsky’s partner on 3 of the 4 preceding
days that week. Lefkofsky worked on Friday as well, indicat-
ing there was work to be done. The failure to assign Sid to
assist Lefkofsky on Friday casts doubt on the bona fides of
Respondent’s motives.
Respondent justifies the March 8 layoff by contending that
Sid was paired with Jim Swalek and since Swalek had to be
absent on that date, there was no work for Sid. Respondent
also claims that since the volume of work was light then, and
Sid was low in seniority, he was the most obvious candidate
for layoff. The documentary record supports neither of Re-
spondent’s contentions. Respondent’s own business records
establish that Lefkofsky, not Swalek, was Sid’s partner that
week. Therefore, Swalek’s absence should have had no bear-
ing on Sid’s assignment that day. Further, contrary to Re-
spondent’s assertions, Cooper, not Sid was the most junior
employee. If seniority was a factor, and Respondent actually
needed to lay off an employee, then Cooper, who was hired
2 to 3 months after Sid, should have been selected for layoff.
The fact that Cooper had been assisting another electrician
that week is irrelevant since helpers frequently were assigned
to work with various partners.
In light of the foregoing considerations, it is evident that
Respondent failed to produce any credible evidence that Sid
was laid off for nondiscriminatory reasons. By relying on to-
tally false facts, Respondent demolished its own defense and
left little doubt that its asserted reasons were pretextual.
3. Sid’s discharge was unlawful
Apparently, Respondent was not satisfied with simply lay-
ing off Sid for a single day. On March 18, it discharged him
for reasons which I also find were pretextual. Prior to his ter-
mination, Sid had not been warned or reprimanded about his
attendance.17 In fact, in January, before the start of the union
campaign, Respondent had rewarded him a pay raise which
was based on merit and length of service.
Swalek told Sid he was being discharged because he had
missed 16 days of work in 1991. Swalek’s numbers were
wrong. Respondent’s attendance records show that Sid
missed a total of twelve days. One day in January was cred-
ited to illness, five in February were taken as paid vacation
days and the rest in March were attributed to personal rea-
sons. Thus, there was no day for which Sid failed to account,
something which could not be said of another employee who
simply disappeared for 3 days without excuse.
As discussed above, Respondent had a liberal leave policy.
Indeed, Swalek contrasted his tolerant attendance practices
with the rigid conditions he said employees would encounter
under a union regime. Up to the time of Sid’s discharge, em-
ployees could take 5 paid vacation days which could be as-
signed after the fact and an unlimited number of unpaid per-
sonal days for any reason as long as they gave advance no-
tice. In accordance with these policies, Sid used 2 of his 5
vacation days when he was absent on February 27 and 28
due to a sinus condition. Although he returned to work with
a doctor’s note, Swalek chose to regard these absences as un-
excused and held Sid accountable for them. Gardener at-
tempted to explain this anomaly by claiming that absences
are excused and recorded as vacation days only when the
employee schedules such leave in advance. Therefore, she
reasoned that Sid’s absences were unexcused because he had
not requested such leave ahead of time. Yet, the record
shows that other employees who were injured or experienced
emergencies were granted vacation leave after the fact. For
example, one employee, Miller, took vacation leave after he
was injured on the job; another, Sabol, was accorded vaca-
tion leave after taking time off due to a death in the family.
The attendance records of these employees show that their
absences were not recorded as unexcused. Gardener at-
tempted to rationalize Respondent’s disparate treatment of
these employees by suggesting that neither one could have
anticipated in advance the circumstances which led to his re-
questing vacation leave. But neither was Sid in a position to
know he would be ill at the end of February.
Respondent’s willingness to bend the truth in order to jus-
tify Sid’s discharge is most apparent in the way in which his
trip to Mississippi was treated. Sid maintained that he had
mentioned this trip to Swalek weeks in advance; Swalek de-
nied he knew anything about it. Sid’s testimony is the more
credible for it is illogical to believe that he would tell his
fellow workers and the office manager of his impending
journey, but fail to inform his employer, particularly when
Daugherty had cautioned him to be a model employee
throughout the union campaign.18
Even assuming that Swalek forgot that Sid requested per-
sonal leave in advance of his Mississippi trip, Gardener re-
minded him of it on the morning of March 12. Thus, Re-
spondent did have prior knowledge that Sid was taking per-
sonal leave and, nonetheless, refused to excuse his absence.
Respondent obviously had one attendance policy for its
prime union activist and another for the rest of its staff, hold-
ing Sid to account for absences which would have been ex-
cused if its policy was applied in a neutral manner.
Respondent contends that Sid was treated no differently
than two other employees who were discharged in 1988 for
excessive absenteeism. In support of this contention, Re-
spondent introduced attendance records for a Kelly Morris
which indicate that he had five unexcused absences in a 2-
month period, while those for Jim Elder show he had nine
unexcused absences in less than 3 months. However, since
1263FOSTER ELECTRIC
19 Sec. 8(a)(4) provides that an employer commits an unfair labor
practice by discharging or otherwise discriminating against an em-
ployee ‘‘because he has filed charges or given testimony under this
Act.’’ Given Swalek’s angry reaction to the Union’s filing unfair
labor practice charges, it is reasonable to infer that he retaliated
against Sid in part because he learned that the employee had contrib-
uted information on which those charges were based.
20 Each employee signed the card and filled in his social security
number, address, and phone number below the text which stated:
I authorize Local Union No. 697 of the International Brother-
hood of Electrical Workers to represent me in collective bargain-
ing 45 with my present and future employers on all present and
future jousters within the jurisdiction of the Union. This Author-
ization is nonexpiring, binding, and valid until such time as I
submit a written revocation.
21 Because the challenged ballots were insufficient in number to
affect the results of the election, no ruling is required as to the legit-
imacy of the challenges. However, if Jim Swalek’s status was in
issue, I would find that his ballot was properly challenged since, as
the brother of the Company’s part-owner and manager, he was not
an appropriate member of the bargaining unit. See NLRB v. Action
Automotive, 469 U.S. 490 (1985).
22 It takes no great acumen or special expertise to know that lob-
byists use a variety of tactics in their efforts to influence public offi-
cials. For example, they may provide free trips to golf resorts or paid
luncheons at posh restaurants. The lobbyist need not say a word
about his favorite project. The lobbied official knows that unalloyed
altruism does not account for the lobbyist’s generosity.
Sid’s absences would have been excused if Respondent had
applied its attendance policy in a neutral manner, his attend-
ance record cannot fairly be compared to those of Morris and
Elder.
Respondent suggested in its brief that in addition to his al-
leged attendance problem, Sid’s poor work performance also
justified his termination. Respondent apparently overlooked
Swalek’s unequivocal testimony that he fired Sid solely be-
cause of his poor attendance. Moreover, the record shows
that virtually all the complaints about the quality of Sid’s
work referred to incidents which occurred in 1990. Any inad-
equacies which may have marred Sid’s work in the first year
of his employment apparently disappeared for in January
1991 he received a $1-an-hour raise.
In the final analysis, Sid’s absences were not the real rea-
son for his discharge, as lack of work was not the real reason
for his layoff. Rather, Respondent used his alleged attend-
ance problem as a smokescreen to conceal a discriminatory
intent. By its layoff of Sid on March 8 and by terminating
him on March 18 in order to rid itself of a union supporter
4 days before the election, Respondent violated Section
8(a)(3), (4), and (1) of the Act.19
C. The Election Results Should be set Aside
The record establishes that at the time he sought voluntary
recognition and when he filed a petition for an election on
February 14, Daugherty had in his possession seven valid au-
thorization cards from all but one of Respondent’s employ-
ees.20 Yet, when the ballots were counted, the votes were
four to two against the Union, with two challenged ballots,
Sid’s and Jim Swalek’s.21
The Union filed timely objections to the election on March
29 alleging that the Respondent tainted the election results by
engaging in repeated unfair labor practices, and on the day
before the election, by promising certain benefits to Mark
Lollack and treating the employees to a pizza party to cele-
brate the end of the union campaign.
Finding that substantial issues were raised by the Union’s
contentions, the Regional Director certified the matter for a
consolidated administrative hearing. As found above, the Re-
spondent committed numerous and serious unfair labor prac-
tices which reached every unit employee during the critical
period preceding the election. Those findings do not need to
be repeated here. What remains to be evaluated are the
Union’s objections to Swalek’s conduct on the brink of the
election.
Daugherty’s objections to Lollack’s meeting with Swalek
on the day before the election were based on reports by a
few employees who overheard some remarks pass between
the two men. However, the testimony of the participants re-
veals that Swalek did not initiate the meeting, and promised
Lollack only that he would put in a good word for him with
a housing contractor or financial institution. I do not find that
Swalek’s offer of such assistance amounted to a promise of
a benefit since Swalek had no control over whether Lollack
eventually would get a loan. Moreover, Swalek might have
obliged Lollack with this small favor even without an elec-
tion the following day. Further, there was no evidence that
Swalek urged Lollack to vote one way or another; rather, by
all accounts, he simply urged him to vote independently.
However, Swalek did cross the line between permissible and
impermissible conduct when he again raised the specter of
his going out of business should the Union prevail. This was
not the first time Lollack had heard such statements. With
the election less than 24 hours away, Swalek’s repetition of
this dire prophecy gave it added force and was certain to
have an impact on an easily influenced employee like
Lollack, a man who admittedly was willing to follow the
crowd. I have already found that Swalek’s comments about
plant closure constituted unfair labor practices. Where, as
here, an employer repeats such remarks at the 11th hour to
an equivocal employee, he must be held responsible for ob-
jectionable conduct which undermines a fair election.
Contrary to Daugherty’s assertion, Swalek did not overtly
lobby his employees to vote against the Union at the ‘‘thank
God its over’’ party which he sponsored on election eve. All
of those who attended the informal after-hours gathering in
Respondent’s office and who later spent the evening in a
nightclub testified credibly that discussion of the Union was
out of bounds. However, lobbying takes on many forms and
under the circumstances present here, I am persuaded that
Swalek engaged in effective lobbying.
Swalek had given similar parties in the past, but always
in connection with a traditional holiday such as Thanksgiving
or Christmas. In holding a gathering on this occasion, he did
not have to say a word to convey to his employees that he
was a thoughtful, benevolent employer who had his their
well-being at heart.22 In joining some of the employees for
the first time at a local club, he also signaled that he was
just one of the boys, a regular fellow. Why, one might ask
rhetorically, would anyone want such a boss to go out of
business. Normally, parties are held after the fact to celebrate
a victory; Respondent’s party preceded the election to ensure
there would be no victory at the polls the following day. If
Swalek had no interest in manipulating the employees, all he
had to do was delay the ‘‘thank God its over’’ party until
the election was over. In hosting this party on the eve of the
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 If Jim Swalek is included in the unit, then, of course, three em-
ployees remain on Respondent’s employment rolls who were in-
volved in the initial union campaign of course, if Sid returns to Fos-
ter Electric, he would be the fourth of the seven employees who
signed authorization cards.
election, Respondent impermissibly interfered with the em-
ployees’ rights under the Act.
Respondent’s unfair labor practices and other objectionable
conduct made it impossible for the employees to exercise a
free and uncoerced choice in the election. Accordingly, the
election results must be set aside in Case 1–RC–18184 and
that proceeding be dismissed in accordance with the conclu-
sion detailed below that a bargaining order should issue.
D. A Bargaining Order is Required
When the Union requested voluntary recognition from the
Respondent, it had achieved majority status in the appro-
priate bargaining unit. Because of Respondent’s unfair labor
practices, and other objectionable conduct, it lost that major-
ity. In such circumstances, the Board may issue a bargaining
order if the violations are such that they are likely to have
serious and long-lasting adverse effects which preclude the
possibility of holding a fair election. NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).
In determining whether a bargaining order is warranted in
this case, it is necessary to turn first to the applicable prin-
ciples outlined in Gissel. There, the Supreme Court described
two categories of cases in which a bargaining order was ap-
propriate: (1) ‘‘exceptional’’ cases marked by ‘‘outrageous’’
and ‘‘pervasive’’ unfair labor practices, and (2) ‘‘less ex-
traordinary’’ situations where the employer’s misconduct was
‘‘less pervasive’’ but had a ‘‘tendency to undermine [the
Union’s] majority strength and impede the election process.’’
Id. at 613–614. In finding that a bargaining order is nec-
essary here, I conclude that the Respondent’s unfair labor
practices and objectionable conduct come within the second
Gissel category for the following reasons.
From the time that Daugherty requested voluntary recogni-
tion to the very eve of the election, Swalek engaged in nu-
merous unfair labor practices including threats, promises of
benefits, and discharge. Among the most serious of threats
were those in which Swalek predicted the loss of his busi-
ness, repeated on numerous occasions to every employee in
the shop. Sometimes, this threat was presented as the inevi-
table consequence of higher union labor costs; at other times,
the threat was expressed in simple, uncomplicated terms,
with Swalek telling employees the Company would fold if
the Union came in. On several occasions, Swalek ruefully in-
dicated that given the Union’s rules governing the ratio of
journeyman to apprentices in a shop, he would be unable to
retain the employees. He also told several workers who
seemed to favor the Union, that they should quit and enter
the apprenticeship training program. Although the language
and the circumstances varied, Swalek’s recurring message
was to equate union membership with job insecurity.
Other threats were somewhat less egregious, but their co-
ercive nature was none the less significant. Swalek incor-
rectly told the workers that the Union’s starting wage was
approximately $5.30, insinuating that this was the scale they
could expect. At the same time he accentuated the negative
by pointing out that their wages and working hours would
be reduced, he eliminated the positive by failing to mention
that their wages could be pegged to current levels or that
overtime pay could compensate for lost hours. He also sug-
gested that his own lenient attendance practices would evap-
orate in an organized shop.
On the one hand, Swalek conjured up a parade of evils
should the Union prevail, while on the other, he painted a
rosy picture of life with the Respondent if the Union was re-
jected. Thus, he promised that pay raises would be granted
and a pension plan installed when he no longer had to abide
by Board rules imposed during the critical preelection period.
He also offered several employees tuition aid to counteract
the attraction of the Union’s training program.
Finally, with the election 4 days away, Respondent first
laid off and then terminated the most vocal union supporter.
No act could send a clearer message to employees of the
price to be paid for exercising statutory rights.
In finding a bargaining order appropriate in Koons Ford
of Annapolis, 282 NLRB 506, 508 (1986), the Board recog-
nized
that threats of job loss (i.e., plant closure, discharge and
layoff) because of union activity are among the most
flagrant interference with Section 7 rights and are more
likely to destroy election conditions for a lengthier pe-
riod of time than other unfair labor practices. Indeed
the natural and likely result of the threats found here
was to reinforce the employees fear that they would
lose employment if they persisted in their union activ-
ity.
Accord: Salvation Army Residence, 293 NLRB 944, 988
(1989). Here, Respondent committed serious unfair labor
practices such as those condemned in Koons Ford and Salva-
tion Army. Swalek, Respondent’s manager, the one person
who was solely responsible for the repeated acts of mis-
conduct found above, continues to run the firm single-
handedly and has daily hands-on contact with the staff. Two
of the men in the original unit continued to be employed by
the Respondent and at least one of them, clearly was very
much swayed by his employer.23 In this case, where Swalek
was responsible for serious and pervasive unfair practices,
the effect of such conduct is lasting and cannot be eradicated
by the mere passage of time or by the Board’s usual rem-
edies. Requiring the Respondent to refrain from engaging in
unlawful activity is hardly likely to overcome the lingering
effects of his former behavior. Here, a second election could
not provide the employees a forum in which they could exer-
cise a truly independent choice. Accordingly, I find that the
employees’ interest in union representation, once expressed
through authorization cards, would be better served by
issuance of a bargaining order.
It follows that the Respondent shall be required to bargain
with the Union as the exclusive representative of employees
in an appropriate unit as of the date that Daugherty requested
voluntary recognition.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and that the Board’s exercise of jurisdiction in this matter
will effectuate the purposes and policies of the Act.
1265FOSTER ELECTRIC
24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Threatening its employees with closure of the business
and loss of 15 jobs if they chose the Union as their bargain-
ing agent.
(b) Impliedly threatening employees with a decrease in
pay and a loss of benefits by imposing stricter working con-
ditions if they selected or supported the Union.
(c) Promising employees benefits including a 401-K pen-
sion plan, wage increases and paid technical training, in
order to discourage them from selecting or supporting the
Union and impliedly blaming the Union for the failure to
grant wage increases and implement the pension plan during
the preelection period.
(d) Coercively interrogating employees concerning their
union sympathies.
4. The Respondent violated Section 8(a)(1), (3), and (4) of
the Act by laying off and discharging an employee, Sid
Nascianceno, because he supported the Union and furnished
information underlying charges filed with the Board.
5. The following unit is appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and part-time electrical workers, elec-
tricians, and helpers employed at the Employer’s facil-
ity presently located at 8344 Kennedy Avenue, High-
land, Indiana; but excluding all managers, clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
6. Since on or about the end of November 1990, and at
all times material thereinafter, the Union represented a ma-
jority of employees in the above-described unit, and has been
the exclusive representative of these employees for purposes
of collective bargaining within the meaning of Section 9 of
the Act.
7. The unfair labor practices outlined above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. By committing the unfair labor practices outlined above,
by again threatening plant closure during a private meeting
with an employee on the day before the election, and by
sponsoring a party for the employees on the eve of the elec-
tion, Respondent interfered with the representation election
held on March 22.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (4) of the
Act, I shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the purposes
and policies of the Act.
Specifically, the Respondent shall be directed to offer em-
ployee Sid Nascianceno immediate and full reinstatement to
his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges previously enjoyed. Fur-
ther, Respondent shall be ordered to make him whole for any
loss of earnings and other benefits, computed on a quarterly
basis, from date of discharge to the date of a proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent also shall be instructed to re-
move from its files any reference to Nascianceno’s unlawful
discharge and notify him that this has been done and that any
such documents will in no way be used against him.
Respondent also shall be ordered, on request, to bargain
collectively with the Union as the exclusive collective-bar-
gaining representative of the employees in the above-de-
scribed unit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Foster Electric, Inc., Highland, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with closure of the business
and loss of jobs if they chose the Union as their bargaining
agent.
(b) Impliedly threatening employees with a decrease in
pay and a loss of benefits by imposing stricter working con-
ditions if they selected or supported the Union.
(c) Promising employees benefits including a 401-K pen-
sion plan, wage increases and paid technical training, in
order to discourage them from selecting or supporting the
Union and impliedly blaming the Union for the failure to
grant wage increases and implement the pension plan during
the preelection period.
(d) Coercively interrogating employees concerning their
union sympathies.
(e) Laying off or discharging employees because they sup-
port the Union or provide evidence which leads to the filing
of unfair labor practice charges.
(f) Refusing to recognize and, on request, bargain with the
Union as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and part-time electrical workers, elec-
tricians, and helpers employed at the Employer’s facil-
ity presently located at 8344 Kennedy Avenue, High-
land, Indiana; but excluding all managers, clerical em-
ployees, professional employeees, guards and super-
visors as defined in the Act.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employee Isidro Nascianceno immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges pre-
viously enjoyed. Further, Respondent shall be ordered to
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis, from date of discharge to the
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If 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.’’
date of a proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent also
shall be instructed to remove from its files any reference to
Nascianceno’s unlawful discharge and notify him that this
has been done and that any such documents will in no way
be used against him.
(b) On request, recognize and bargain with Local Union
697, International Brotherhood of Electrical Workers, AFL–
CIO, as exclusive bargaining representative of the employees
in the above-described unit, with respect to wages, hours,
and other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(c) Preserve and, on 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.
(d) Post at its facility in Highland, Indiana, copies of the
attached notice marked ‘‘Appendix.’’25 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ORDERED that the complaint is dismissed insofar as
it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election held on March
22, 1991, in Case 13–RC–18184 is set aside and that the pe-
tition in that matter is dismissed.