Armco Drainage & Metal Products, Inc.

ARMCO DRAINAGE & METAL PRODUCTS, INC. 725 ARMCO DRAINAGE & METAL PRODUCTS, INC., FABRICAT- ING DIVISION, AND ITS AGENTS WINSTON W. HILL, WILLIAM DEWS, CARROLL HALLIDAY, C. E. GIDDINGS, PAUL VAN VOORHIS AND OTHERS CONSTITUTING THE CITIZENS' COMMITTEE and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, and ARMCO EMPLOYEES INDEPENDENT FEDERATION, INC. and THE SHOP COMMITTEE ARMCO DRAINAGE & METAL PRODUCTS, INC., WASHING- TON COURT HOUSE PLANT and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO. Cases Nos. 9-CA-533 and 9-RC-1505. August 13, 1953 DECISION AND ORDER On March 12, 1953, Trial Examiner Arthur Leff issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent-Employer had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He further recommended that the complaint be dis- missed with respect to the individual Respondents. Thereafter, the Respondent-Employer and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs., The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,9 conclusions, and recommendations of the Trial Examiner. 1 The Respondent's request for oral argument is denied because in our opinion the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. z Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peter- son]. s We note and correct the following minor inaccuracies in the Trial Examiner's findings, none of which affects the vahdity of his ultimate conclusions or our concurrence therein: (1) The election was held on March 18, 1952, and not on March 13, 1952, as stated in the last paragraph of section III, C, of the Intermediate Report; (2) It was Sollars, and not Dews, who testified for the General Counsel with respect to the subject matter referred to in footnote 31 of the Intermediate Report. We agree with the Trial Examiner that the Respondent-Employer is responsible for the unlawful activities of Winston Hill, William Dews, and Carroll Halliday, members of the so- called Citizens' Committee, but solely for the reason that the Respondent-Employer aided, abetted, assisted, and cooperated with, said Citizens' Committee in its campaign against UAW-CIO. Reliance Mfg. Co. v. N. L. R. B., 125 F. 2d 311, 317. 106 NLRB No. 121. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Armco Drainage & Metal Products, Inc., Fabricating Division , Washington Court House, Ohio, its officers , agents, successors , and assigns, shall: (1) Cease and desist from: (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America , UAW-CIO, as the exclusive representa- tive of its employees in the following appropriate unit: All production and maintenance employees at the Washington Court House plant of Armco Drainage & Metal Products, Inc., including shop clerks, janitors , and watchmen , but excluding all office employees , guards, professional employees , and super- visors as defined in the Act. (b) Interfering with the formation of, or assisting or con- tributing support to, .Armco Employees Independent Federation, Inc., or to any other labor organization. (c) Recognizing Armco Employees Independent Federation, Inc., as the representative of its employees at its Washington Court House, Ohio , plant, for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment, unless and until such labor organization has been certified by the National Labor Relations Board as the representative of such employees. (d) Threatening employees with reprisal, or promising them benefits , to discourage or encourage their affiliation with or support of any labor organization ; conditioning the payment of employee benefits upon the selection or rejection of any particular labor organization ; interrogating employees con- cerning union activities or affiliation ; threatening employees with discharge because of their assistance to any labor or- ganization in proceedings before the National Labor Relations Board ; aiding, abetting , assisting , or cooperating with any outside group of local citizens of businessmen in any campaign designed to interfere with , restrain , or coerce its employees in the exercise of their self-organizational rights. (e) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self- organization , to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America , UAW-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act. ARMCO DRAINAGE & METAL PRODUCTS, INC. 727 (2) Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW-CIO, as the exclusive rep- resentative of its employees in the appropriate unit set forth above, and embody any understanding reached in a signed agreement. (b) Post at its plant in Washington Court House, Ohio, copies of the notice attached to the Intermediate Report and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by Respondent's authorized representative, be posted by Re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region, in writing, with ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleged that: (1) The Re- spondent violated Section 8 (a) (2) of the Act with respect to the Shop Committee; and (2) Winston W. Hill, William Dews, Carroll Halliday, C. E. Giddings, and Paul Van Voorhis, con- stituting the so-called Citizens' Committee, independently engaged in unfair labor practices. 4This notice is hereby amended by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner " In the event this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report STATEMENT OF THE CASE On February 5, 1952, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, herein called the Union, filed with the National Labor Relations Board, herein called the Board, a petition in Case No. 9-RC-1505 for certi- fication of representatives pursuant to Section 9 (a) and (c) of the National Labor Relations Act, 61 Stat. 136 et sea , herein called the Act. On February 26, 1952, the Employer and the Petitioner in Case No. 9-RC-1505 executed a stipulation for certification upon consent elec- tion On March 18, 1952, pursuant to the stipulation, an election by secret ballot was con- ducted under the direction and supervision of the Board's Regional Director for the Ninth Region (Cincinnati, Ohio) among the employees in the unit agreed upon as appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The tally of ballots cast at the election showed that of 139 valid votes counted plus challenged ballots, 63 votes were cast for the Union, 75 against, and 1 was challenged. On March 19, 1952, the Union filed timely objections to the election in the form of a telegram in which it asserted as its grounds the allegations contained in its unfair labor practice charge in Case No. 9-CA-533. Thereafter, on August 13, 1952, the Regional Director issued and served upon the parties his 7Z8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report on objections to election, in which he stated that on March 20, 1952, the Union filed a charge in Case No. 9-CA-533, and on August 11, 1952, an amended charge, and recommended to the Board that a hearing be held on the aforesaid objections and that the proceeding be con- solidated for the purpose of such hearing withCase No. 9-CA-533. No objections were filed to the aforesaid Regional Director's report. On August 29, 1952, the Board entered an order adopting the Regional Director's recommendations and directing that a hearing be held on the objections. Thereafter, upon the Union's charge and amended charge, adverted to above, the Regional Director issued his complaint dated September 25, 1952, against Armco Drainage & Metal Products, Inc., Fabricating Division, herein called the Company, and against its alleged agents, Winston W. Hill, William Dews, Carroll Halliday, C. E. Gidding, Paul Van Voorhis, "and others," herein for convenience collectively called, as in the complaint, the Citizens' Committee, alleging that the Respondent Company had engaged in specified conduct constitut- ing unfair labor practices within the meaning of Section 8 (a) (1), (2), and (5) and Section 2 (6) and (7) of the Act, and the Respondents Citizens' Committee, in specified conduct consti- tuting unfair labor practices within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the Act. On the same day the General Counsel, by the Regional Director, issued an order consolidating Case No. 9-CA-533 and Case No. 9-RC-1505. Copies of the complaint, order of consolidation, and notice of hearing were duly served upon the Respondents and the Union, and also upon the Shop Committee and Armco Employees Independent Federation, alleged in the complaint to be company-dominated labor organizations. Pursuant to notice, a hearing was held in Washington Court House, Ohio, between December 8 and 16, 1952, before Arthur Leff, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent Company, the individual Re- spondents, the Armco Employees Independent Federation, Inc., herein called the Independent, and the Union, were represented by counsel at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, a motion was granted to strike from the complaint wherever it appears the phrase "and others," referring to individuals other than those specifically named in the complaint as constituting the alleged Citizens' Committee. Motions by the Respondents to strike certain allegations of the complaint, made upon the ground that they were not specified in the charge or upon the ground that they expanded specifications in the charge, were denied. Motions to dismiss additional allegations of the complaint, made upon the ground that they did not state on their face violations of the Act, were likewise denied. During the presentation of the General Counsel's case, the General Counsel was per- mitted to amend his complaint by adding an additional specification of conduct claimed to violate Section 8 (a) (1), and the Respondent to amend its answer to deny the amended allega- tion.i At the conclusion of the General Counsel's case, a motion was granted to dismiss the com- plaint insofar as it alleged the com,nission of unfair labor practices by the Respondent, C. E. Gidding. Motions made at the same time, to dismiss other allegations of the complaint for insufficiency of proof, were denied with leave to renew upon the enure record at the close of the case. At the conclusion of the entire case, the Respondents renewed all motions by them earlier made to dismiss allegation of the complaint. To the extent such motions attacked the complaint for expanding specifications in the charge, or for containing allegations not detailed in the charge as originally filed or as amended, the motions were denied. Ca hey Lumber Company, 86 NLRB 157. To the extent such motions otherwise attacked the sufficiency of allegations of the complaint, or proof thereunder, ruling on the motions were reserved, and they are now disposed of in accordance with the findings of fact and conclusions of law made below. A motion to conform the pleadings to the proof with regard to minor variances was granted. All parties were granted opportunity to present oral argument , and to-file briefs and proposed findings of fact and conclusions of law. Briefs received from the General Counsel and the Company have been considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: iThe amendment alleged in substance that the Respondent violated Section 8 (a) (1) by threatening to discharge employees who furnished affidavits in support of union unfair labor practice charges. ARMCO DRAINAGE & METAL PRODUCTS, INC. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 729 Armco Drainage & Metal Products , Inc.. a Delaware Corporation , is engaged at its plant in Washington Court House , Ohio, its only plant involved in this proceeding , in the manu- facture and sale of drainage products and building sections . During its last fiscal year, the Company manufactured at and shipped from its Washington Court House plant , directly to points outside the State of Ohio, products having a value in excess of $25 ,000. The Company concedes it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and it is found, that International Union, United Automobile , Aircraft and Agricultural Implement Workers of America , UAW-CIO, and Armco Employees Inde- pendent Federation, Inc., are labor organizations admitting to membership employees of the Company . Although not stipulated , the record supports a finding, based upon facts to be set out below , that the Shop Committee prior to its dissolution in February 1952 was likewise a labor organization within the meaning of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Introduction Armco Drainage is a wholly owned subsidiary of Armco Steel Corporation . The parent corporation from its headquarters at Middletown . Ohio, where the principal place of business of Armco Drainage is also located, provides certain services , including services in the field of labor relations , for those of its subsidiary companies which, like Armco Drainage, are not equipped with staff facilities to handle them. The employees of Armco Steel Corporation at Middletown, as well as the employees of Armco Drainage at that city , are represented for the purposes of collective bargaining by the Armco Employees Independent Federation, Inc. Before 1950 , the Fabricating Division of Armco Drainage had its only plant at Ashland, Ohio, where the employees were represented by United Steelworkers of America , CIO. In 1950, following inducements to the Company by the Washington Court House, Ohio , Chamber of Commerce, including the purchase for the Company of a tract of land, Armco Drainage opened an additional plant at Washington Court House. Operations began at the new plant with a skeleton crew in the fall of 1950 , while construction was being completed . Full scale operations , however, did not begin until the summer of 1951 . At the time of the Union's bar- gaining demand in January 1952 , the Company had 144 production employees at Washington Court House. B. The Shop Committee Before the appearance of the Union at the beginning of 1952, the Company's employees at Washington Court House were represented , at least for certain purposes related to collective bargaining by a shop committee. The committee was formed under the following circum- stances: In late December 1950 , when the Company was still operating with a skeleton crew of some 25, management called a meeting of its employees on company time and property . At this meeting , presided over by Al Senter, the division manager, the employees were addressed by Ray Adair , an Armco personnel director out of Middletown . Adair, among other things, spoke of employee shop committees that Armco had at some of its other plants , and told the em- ployees how well that representation arrangement had worked out. He suggested to the em- ployees that they consider the advisability of selecting from their own group representatives to serve as a medium of contact between management and the employees . He asked them to decide among themselves whether they wanted such an arrangement , and to let him have an answer that day. The management representatives then withdrew from the meeting, and the employees , after discussion , voted to adopt Adair 's suggestion , and so advised management. After receiving management 's recommendation that 3 would be a suitable number for the com- mittee, the employees , still on company time and property , proceeded to elect by secret ballot 3 of their number as committeemen to deal on their behalf with management. The 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives selected were designated as the Shop Committee. Until the Committee's resignation, which followed close on the heels of the Union's bargaining demand in 1952, the 3 committeemen originally elected continued to act in that capacity, except for 1 mem- ber, who, having been promoted to a supervisory position, resigned and was replaced by another selected by secret ballot. Except as noted, the Committee had no formal organiza- tion. Shortly after the Committee was constituted, it executed along with the Company a number of written instruments, designated as "policies" to govern the relationship of employees with management. The "policies" provided, inter alia, for a grievance procedure, seniority rules, vacation rights, holidays, the scheduling of hours of work, and overtime rates, and also made provision for the Shop Committee calling to the attention of management any cases of hourly rates that might deserve review. Thereafter, and until its resignation on February 4, 1952, the Committee met at regular intervals with management representatives on company time to discuss problems affecting the employees. The Company looked upon the Committee as a conduit through which it could pass on information to employees and have channeled to it employee grievances. The Com- mittee on irregular occasions also held general employee meetings . Several of the earlier meetings--held more than 6 months before the filing of the charge in the instant case--were held on company time. All employee meetings since then were held outside working hours, although on company property. No effort has been made to revive the Shop Committee since it passed out of existence with the resignation of the committeemen on February 4, 1952. The complaint alleges, and the Company denies, that "commencing on or about September 21, 1951, the Respondent, in violation of Section 8 (a) (2) of the Act, dominated, interfered with the formation of, and contributed financial and other support to the Shop Committee." It is well to dispose of this issue now, without awaiting consideration of other aspects of this case. For, unlike the other issues in this case, it stands apart in the sense that it is uncon- nected in point of time and direct relationship to the other alleged unfair labor practices, all of which have as their focal point the Respondent's asserted illegal efforts, following the Union's demand for recognition in January 1952, to destroy the majority of the Union, defeat it at the election, and avoid bargaining with it. In view of the restrictions of Section 10 (b) of the Act, a violation of Section 8 (a) (2) with regard to the Shop Committee, if it is to be found at all, must be predicated upon conduct of the Company occurring not more than 6 months before the filing of the charge. Events before that time may be considered for the purpose of elucidating and explaining the character and quality of alleged illegal conduct occurring within the limitations period, but unless some il- legal conduct is independently established within that period, such earlier events may not support an unfair labor practice finding. In this case the charge was filed on March 20, 1951. The date of September 21, 1951, alleged in the complaint as the commencement of the Com- pany's alleged 8 (a) (2) violation, has no significance in itself beyond arbitrarily fixing a cutoff date precisely 6 months before the filing of the charge. The General Counsel would support a Section 8 (a) (2) violation after September 21, 1952, upon the following events considered against the background of the facts showing the manner in which the Shop Committee was originally sponsored and formed: (1) the Company's con- tinued recognition of and dealing with the Shop Committee until its dissolution on February 4, 1952; (2) the Company's payment to Shop Committee members for time spent in Shop Committee meetings; (3) a statement made by Division Manager Senter to the Shop Com- mittee, shortly after the Union's demand, that the Company would continue to deal with the Shop Committee; and (4) the Company's failure within the limitations period to disavow what the General Counsel describes as its "illegal interference in the Shop Committee's forma- tion and early administration." I do not think that any of these singly, nor all together, are enough to make out a case of illegal conduct, even when evaluated against the background upon which the General Counsel relies. Certainly mere recognition and bargaining are not illegal in themselves. And though they may be where the organization dealt with is an illegally formed one, a finding of illegal formation in this case, based as it would have to be, upon events prior to September 21, 1951, is precluded by Section 10 (b). There is no evidence that Shop Committee members at any time within the limitations period were paid for time spent in attendance at meetings with employees, and while there is evidence that committee members were paid for time spent in conferring with management representatives, there was nothing wrong with this; indeed that is a practice not only common in labor -management relations, but one expressly per- ARMCO DRAINAGE & METAL PRODUCTS. INC. 731 mitted by the proviso to Section 8 (a) (2). Unlike the General Counsel, I do not think Senter's statement need be construed as one in which the Company "expressed its unequivocal deter- mination to continue its Shop Committee in existence," come what may with regard to the Union's representation claim. In the context of other record facts, the statement may fairly be read as a declaration of intent to continue dealing with the Committee in the same manner as it had in the past while the Union's representation claim was pending undetermined. So read alone, this statement cannot be said to constitute illegal support. Finally , I am unable to agree that mere failure to disavow past illegal domination and interference is alone enough to carry the illegal conduct inside the limitations period. The cases upon which the General Counsel relies, such as Sperry Gyroscope Co. v. N. L. R. B., 129 F. 2d 922 (C. A. 2) and Kresge Department Store, 77 NLRB 212, are inapposite. These cases, decided under the Wagner Act, presented no Section 10 (b) problem. There the Board was not precluded from making a basic finding of illegal domination and thus could find that the illegal domination, never having been disavowed, continued to exist. But this the Board cannot do in the instant case. Decision in this case is controlled in my opinion by Tennessee Knitting Miils, 88 NLRB 1103. Under circumstances closely paralleling those here, the Board in that case held that Section 10 (b) precluded it from finding a Section 8 (a) (2) violation with regard to an employee committee established before the 10 (b) date even though it might have done so had it been free to base its finding upon the employer's total conduct in connection with the committee. I shall therefore recommend dismissal of the complaint's allegations relating to the Shop Committee. C. Background of Union organization; the designation of the Union by a majority of employees in an appropriate unit; the bargaining demand of January 29, 1952 During the latter part of 1951 and the beginning of 1952, there was considerable dissatis- faction among the Company's employees. A principal source of dissatisfaction, although not the only one, was a feeling among the men that they were entitled to an upward adjustment in their wage rates. A neighboring plant, operated by the National Cash Register Company, had been able to effect certain wage-rate increases pursuant to self-executing Wage Stabilization Board regulations which, within allowable limits, permitted wage increases without prior board approval Many of the Company's employees considered that they, too, were entitled to comparable increases, and that the Company was wrong in not effecting them. Actually, however, the Company was in no position to take advantage of the self-executing provisions of WSB regulations, for such regulations are applicable only where an employer has a base payroll period ending on or about January 15, 1950, the freeze date. As the Company's plant at Washington Court House was not in operation at that time, it was necessary for it, before it could effect a wage increase, to make application to and obtain the approval of the Wage Stabilization Board. On September 4, 1951, the Company filed with the Wage Stabilization Board a petition for (1) a general 10-cent an hour wage increase affecting all employees in its production unit then numbering 120; and (2) an additional 5-cent hourly increase inequity adjustment under a job evaluation plan affecting 24 employees in the same unit. The Company in its petition stated it proposed to make these adjustments effective as of September 4, 1951. It supported its position largely on the basis of comparable increases granted by the National Cash Register Company. It is convenient to note now, although its significance will not become apparent until later in this report, that the WSB form required the Company to respond to certain questions-- among them, whether there was a recognized or a certified bargaining agent and whether any representation election was then pending. These questions the Company answered in the negative. The Company did not negotiate with the Shop Committee nor obtain its approval before filing the petition; indeed it made no reference in its petition to the Shop Committee as a bargaining agent for its employees. Sometime later, however, on November 9, 1951, to be exact, the Company in an effort to expedite the processingof the petition obtained the Shop Committee's written approval to the petition, and submitted it to the Wage Stabilization Board. But, so far as appears, the Company did not even at this time make any contractual commitment to pay the wage adjustments as and when they might be authorized. The processing of the wage -adjustment petition , as a result of administrative delays for which the Company was not responsible, proceeded slowly. By January 1952 the petition had not yet been acted on, and the employee dissatisfaction over what many of them considered subnormal wage rates grew in intensity. In the meantime the average amount of back pay that would be due under the retroactive feature of the petition mounted to over $100, and this added to the importance of the wage question in the minds of the employees. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was against this background that the Union made its appearance on the scene. In Decem- ber 1951, an employee contacted theUmon and plans for an organizational campaign were laid. Active solicitation of union designations began about the middle of January 1952. Much of the solicitation activity appears to have been conducted on company property, and not a little on company time--the Company then had no rule prohibiting solicitation. Care was taken, how- ever, to carry on the organizational work secretly, and the activity appears to have been con- ducted without the knowledge of management officials. The Union appeal met with a receptive and speedy response. By January 29, 1952, the Union had designation cards signed by 93 employees --and more were to follow --out of the 144 who were then in the employee grouping that is alleged in the complaint, conceded by the Company, and here found, to constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2 By letter, dated January 29, 1952--received the following day--the Union advised the Com- pany that a majority of its employees in the appropriate unit had designated the Union as their exclusive representative for collective bargaining, and that it desired the Company to recognize and negotiate with it. The Company was cautioned that if it failed to comply with the recognition request, or dealt with anyone else as an employee representative , the Union would regard such conduct as a violation of the Act, for which charges might be filed. The Union in its letter also announced, however, that it proposed, in the event of the Company's failure to comply with its bargaining request, to file a certification petition with the Board. The letter requested an immediate reply to the bargaining request. The Company did not reply to the bargaining demand. On February 5, 1952, the Union filed a representation petition with the Board. At a joint conference, arranged by the Board's field examiner , held on February 26, 1952, a consent-election agreement was entered into. The election was held on March 18, 1952. Despite its greater number of earlier designations, the Union received only 63 votes , while 75 employees voted against the Union. The violation of Section 8 (a) (5) alleged in the complaint stems, according to the basic theory of complaint, from the Company's failure to meet and negotiate with the Union as requested in the Union's letter of January 29, 1952. The Company in defense asserts that it had a good-faith doubt of the Union's majority, and that it was entitled as a matter of law to have the Union's majority status tested in a secret ballot representation election rather than by what it characterizes as a form of "Gallup" poll. With that the General Counsel takes issue. He points to other conduct, to be described below, in which the Company, directly and through its alleged agents , the Citizens ' Committee, engaged in the period between the bar- gaining demand and the election date, and which he claims was violative of Section 8 (a) (1) and 8 (a) (2). That conduct, he contends, refutes the Company's good -faith assertion, impairs the March 13,1952, election results as a true reflection of the employees ' uncoerced desires, and destroys whatever right to Company might otherwise have had to insist as a predicate to a bargaining order that the Union first establish its majority status at a secret ballot election. Resolution of the Section 8 (a) (5) issue must thus await consideration of the other conduct alleged to have been violative of Section 8 (a) (1) and (2), and it is to this that we now turn. D. Interference , restraint , and coercion 1. Statements and conduct of management and supervisory officials At the time of the Union 's bargaining demand, Al Seater was the Company's general manager in charge of its Washington Court House operation. On February 22, 1952, he was replaced by Andrew Hutton, formerly the Company's project manager, who was believed by higher company executives to enjoy the greater confidence of the Company's employees. Seater, after his replacement, was transferred to a sales position in another locality, and at the time of the hearing was still in the Company's employ. Although the Company did not answer the Union's bargaining demand, its reaction to that demand was soon made plain . A day or so after the receipt of the demand, Al Senter called a special meeting of the then still existent Shop Committee, composed of employees Frank Berry, Herman Merritt, and Hayward Riley . Seater informed the committee members of the receipt of the Union 's bargaining demand , expressed doubt of the Union's majority , announced 2 All production and maintenance employees , including shop clerks , janitors, and watchmen, but excluding all office employees, guards, professional employees, and supervisors as de- fined in the Act. ARMCO DRAINAGE & METAL PRODUCTS, INC. 733 that he was not going to welcome the Union with open arms, and declared his intent to continue dealing with the Shop Committee, at least until he was notified differently. Senter also spoke of the pending WSB wage petition. He told the employee committee that he would have to notify the WSB of the union representation claim, and that when he did so the petition would be "shelved" by the WSB. He then went on to warn the committee members of consequences detrimental to employee interests that would flow from the Union's establishment as bar- gaining agent. He told them that if the Union got in, the company petition would go out, as there would then be another form of representation, and "the boys would lose their back pay." He also told them that with the Union in the picture, overtime work would be lost and it would put an end to further plant expansion.3 Senter also had something to say about union- solicitation activities. Expressing a belief that union cards had been distributed on company property, and declaring that he did not want company property used as an election hall, Senter told the committee members that he wanted to warn employees against engaging in such conduct in the future.4 After its meeting with Senter, the Shop Committee, performing its usual function as a conduit of information from management to the employees, called a meeting of employees, and reported to them the substance of what Seater had said. Without consulting management, the Shop Committee, on February 4, 1952, decided to resign in a body, and posted a bulletin board notice to that effect. Upon learning of the Com- mittee's action, Senter summoned its members to his office and , expressing his chagrin, declared that they had acted in an underhanded manner and that he now knew on what side they were.5 But Senter did not stop at that point. As appears from Berry's undenied and credited testimony, Senter went on to mention that the Company's steelox department at its Ashland plant, then organized by the CIO Steelworkers Union, was to be moved out of Ashland because of strikes. Continuing, Senter added that the Washington Court House plant would be closed in all probability if the Union got in. On February 5, 1952, the Union filed its representation petition. At foremen's meetings held shortly thereafter, company officials addressed the formen concerning the representa- tion proceeding. According to company witnesses, the foremen were merely told that they could express their opinions if drawn into conversations, but that they were not to discrimi- nate against employees.6 The General Counsel, however, adduced documentary evidence to show that the Company went further in briefing its supervisory employees on the subject of the Union. Thus, there is in evidence a copy of a multigraphed summary, in question and answer form, of a meeting conducted at the Washington Court House plant on February 9. 1952, by William Maxwell, a staff supervisor of Armco Steel Corporation's personnel relations division. It appears that the subject principally emphasized , at least at that particular meeting, was the then pending WSB petition. The foremen were told that the wage petition could not be processed by the WSB while a representation petition was pending in the plant. As to the possibility of the Union later becoming a party to the wage petition, the foremen were informed: If it he Union] became the bargaining agent for the plant employees , it would then have to bargain with the Company on all matters, and any new settlements would require a new petition. We can see no possible chance that the Union could become a party to the present petition. [Emphasis supplied.] As to whether a contract with the Union would be made retroactive to September 4, 1951, the foremen were advised: 3There is evidence reflecting that employees hired when the plant started looked forward to possible advancement to foremen positions with the expected further growth of the plant. The continued expansion of plant facilities was thus a matter of economic interest to them. 4The findings made in this paragraph are based upon undenied and credited testimony of Frank Berry and Herman Merritt. Senter, although still in the Company's employ and pre- sumably available, did not testify. 5 The record revels that two of the committee members, Merritt and Riley, had theretofore signed union-designation cards. Riley, however, was soon to become one of the principal proponents for the Independent. 6It is conceded that the Company's instructions to the foremen were not communicated to the employees 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retroactivity is a matter for bargaining. It is, however, improbable and perhaps im- possible that retroactivity to this date could be a feature of such a contract. As to whether the Union was a suitable representative for the plant, the formen were told that the Company's operations could not be compared to plants normally organized by the Union, and that: Very important to the answer to this type of question is the necessity of recognizing com- petitive and area circumstances.... There is no equity in adopting unjustified practices that might lead to the loss of business and fewer jobs. As to why Senter did not explain these and other matters discussed to the employees at a meeting called for that purpose , the employees were informed that, while it would be possible to make explanations in that manner, it is felt that a better and more personal job can be done through explanations by the foremen to the men individually. The record reflects that in the weeks that followed, up to the time of the election, sub- stantially all of the Company's supervisory personnel participated in discussions with em- ployees on issues relating to the campaign. Discussions among employees seemingly were permitted to proceed freely in the plant, at times even during working hours . In some instances the discussions appear to have been initiated by the supervisors; in others by ques- tions from employees. But, however initiated, the supervisory employees apparently welcomed and often even invited opportunities to express their views which uniformly were in opposition to the Union. On some occasions, the record reveals, management and supervisory officials, either in an effort to provoke discussion or as an incident to other comments, interrogated employees concerning their union activity or membership. Thus, employee Lawrence Gill testified without contradiction, and it is found that, about the middle of February 1952, General Manager Senter, in the presence of Personal Manager Leo Edwards, sought to draw him into a dis- cussion of what had caused the men to turn to the Union. In the course of his remarks, Senter asked Gill with reference to the Union whether he "knew what got this started and who got this started." When Gill disclaimed having any knowledge of or connection with the Union, Senter asked Gill whether he "knew it was going to cause the men in the shop, if they brought it in, to lose better than a hundred dollars each." Thus, too, there is uncontradicted testimony by employees Dave Hensley, James Johnson, John Sollars, and Robert Stauffer reflecting that during the preelection period each on a separate occasion was asked by Foreman Kenneth Johnson whether he had yet paid his $2 to the Union, the reference being to the initiation fee required to join the Union. t Further uncontradicted testimony reflects that another foreman, Jardine, during the same period, questioned two other employees, Jack Fryant and Wayne Rhonemus, on the subject of their union membership. The supervisory officials in their talks with employees took the position that an outside organization, such as the Union, had no place in the plant and would not be to the best interests of the employees. Throughout this period, but particularly after the Independent made its appearance on the scene, the supervisory and management employees stressed the advantages of an independent organization with its localized control over an organization like the Union with its outside control. The contrasting positions taken by management representation with regard to the Independent on the one hand and the Union on the other are reserved for more de- tailed consideration in a subsequent section of this report . For present purposes , it suffices 7 According to Johnson, his questions were asked in jest. While I believe that Johnson may in some instances possibly have intended them as a taunt, I am satisfied from the context in which they were uttered, as revealed by the undenied testimony, that they were not so under- stood by the employees, but were taken seriously at face value to call for a responsive answer. In the case of Hensley, Kenneth Johnson asked the question as an opening wedge to embark on comments critical of the Union. In thecases of James Johnson and Sollars, the questions were asked in the course of discussions concerning the Union in which they had been engaged by Kenneth Johnson. Stauffer alone declined to answer the questions , stating it was none of Johnson's business. The others provided the requested information. ARMCO DRAINAGE & METAL PRODUCTS, INC. 735 to say that in speaking of the Union, the management representatives made a special point of emphasizing the Company's inability to get along with a CIO union at its Ashland plant, and the strike of long duration which had resulted there, with disastrous economic consequences to the employees and their families. Thus, about 2 weeks before the election Foreman Duval, in the course of a talk with a group of 4 or 5 employees during working hours, told the employees how the employees at Ashland, after they had gone on strike, had been "starved out in every way, couldn't pay their bills" and were "begging for something to eat." To this Duval added that if the "CIO came in you know what is going to happen. Why get an organiza- tion in that you know that strikes, when you have an Independent Union at Middletown that you know has been working perfectly , hasn't been out on strikes, and men have been getting the things they want without going on strike." 8 Shortly after Senter resigned as manager, Vice-President Murray, a company official out of Middletown, came to the plant, addressed employees in the various departments on plant problems, and called for questions from the men. At the meeting in the connector depart- ment, Murray was asked from the floor why the fabricating division, or part of it, had been moved from Ashland to Middletown. Murray replied, "Due to strikes, and we can't get along with the Union"--the reference being to another CIO union which was the certified agent at Ashland. 9 On one occasion, one foreman, Woodruff, went even further to echo substantially the warning of possible plant closure that had earlier been made by Senter to the Shop Committee. In a conversation with employee Kinnison, in which Kinnison was contending the Union could get along with the Company and Woodruff that it could not, Woodruff stated that there was no need for him (Woodruff) to worry, as he had another job to go to. In amplification, Woodruff stated that if the Union came into the plant, the Company would be unable to "dicker" with it, and the chances were 9 out of 10 the Company would have to shut down the plant and move to some other place. 10 The subject most frequently discussed, however, because it undoubtedly was uppermost in the minds of the employees, was the effect of a CIO victory upon their contemplated wage adjustment under the then pending WSB petition. That issue became especially acute following the receipt by employees of the Company's letter soon to be set out. Apart from the letter, the record reflects the following oral statements made by management representatives to employees on the subject of back pay: (a) Senter 's statement to the Shop Committee at the beginning of February. reported above, that the employees would lose their back pay if the Union got in. (b) Senter's similar statement later that month to employee Gill, also reported above. (c) A statement by Hutton, shortly after he succeeded Senter as general manager, to em- ployee James Johnson. In the course of a general discussion with Johnson in late February, which had been initiated by Johnson, Hutton showed Johnson that as of that date Johnson had due him $ 139.42 in back pay under the proposed retroactive wage adjustment. Johnson asked Hutton whether the Company would pay the back pay if the petition were approved before the election. Hutton replied that the Company would not, as it would become a bargaining issue if the Union won the election. On the other hand. Hutton added, if the Union lost the election. the Company would put pressure on the WSB to have it approved and paid immediately. n 8 According to credited testimony of Lawrence Gill, not specifically denied by Duval. 9 According to uncontradicted testimony of employee Sollars. 10 According to Kinnison's undenied and credited testimony. ii According to credited testimony of Johnson, Hutton did not specifically deny making the statement attributed to him by Johnson. However, he testified affirmatively that Johnson asked him "if the petitions were approved during the period prior to the election if it could be paid," and that he (Hutton) replied that it was necessary after an election was set to keep wages in status uo so as not to influence the outcome of the election. I consider the version of Johnson, who me as a witness particularly careful of the truth, to be more ac- curate. Johnson's version appears to fall more nearly in line with Hutton's actual position at that time as revealed by his letter and his testimony concerning it that will be considered at some length below. Although Hutton testified- -not consistently, however--that the conversa- tion occurred after the Company sent its letter of February 28, 1 am satisfied that he is mis- taken in that. Had Johnson already received the letter there would have been no point to his asking the question, nor would there have been any to Hutton digging out the amount of back pay due him, for reasons which will become more apparent later. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) A statement by Foreman Duval to employee Kinnison about 4 weeks before the election. While recommending the advantage of an independent union. Duval told Kinnison that if the Union came in as the bargaining agent any back pay otherwise coming to the employees under the petition would be canceled; that the back-pay question would then become a matter for negotiation, and that in no event would it be made retroactive beyond the date the Union was established as the employees' bargaining agent. e (e) A statement by Foreman Kenneth Johnson to employee Stauffer. About the first or second week of March (after the Company's letter was sent) Johnson approached employee Stauffer and another employee who were standing at the bulletin board discussing the Company's failure to effectuate the wage adjustment. Johnson sought to convince them that the Company could not under the law effectuate the adjustment at that time. Later Stauffer was called from his crane to Johnson's office. Johnson showed him a regulation which he stated supported his views. Their talk then turned to the question of back pay. Johnson asserted that if the Union came in, the Company could not pay it, and the employees would lose all their back pay. Stauffer inquired how, then, the Company planned to make payment if the Independent came in. The Company would arrange that, Johnson replied, by not recognizing the Independent until after the back pay had been disbursed, is (f) A statement by Foreman Johnson to employee Sollars. About 2 or 3 weeks before the election, after an earlier conversation on that subject, Foreman Johnson called employee John Sollars to his office for the asserted purpose of proving to him that the Company could not under the WSB regulations make the retroactive pay adjustments with the Union in the picture. Showing Sollars what he stated to be a governing regulation, Johnson said, "You see the Company cannot pay that ten cents, that retroactive pay, because of the Union wanted to be in as the bargaining agent."ia 2. The Company's withholding of the Wage Stabilization Board's authorized wage increase, its letter to employees dated February 29, 1952 On February 26, 1952--coincidentally, the date the Company and the Union met at the Board- arranged joint conference and signed the consent-election agreement--the Wage Stabilization Board at Washington, D. C., issued a letter bearing that date notifying the Company that the WSB had authorized the 5-cent hourly increase inequity adjustment affecting the jobs of 24 company employees, effective retroactively as of September 4, 1951. In the same letter the WSB notified the Company that the remainder of its petition, involving the 10-cent hourly general increase affecting all employees, would be processed as soon as possible. The WSB letter contained the usual language inserted by it in approval notices , as follows: This approval is based upon the information set forth in your application. It does not con- stitute a finding that the information is correct. Consequently, this approval has no force and effect in the event the facts are not as represented in your petition. Any adjustments in wages, salaries or other compensation put into effect may not exceed the approved ad- justment. 12 According to Kinnison's credited testimony. Duval testified that all he could remember saying on this occasion was that it would not be wise to pay the back pay because an election was pending. Elsewhere in his testimony. Duval admitted expressing his views on the WSB petition, possibly to a good number of employees. Duval's testimony in the particular factual issue here involved, as on some others, did not impress me as convincing. Kinnison seemed to me a straightforward witness, and for that reason, and because his testimony appears to me plausible when measured against other admitted circumstances in this case, I credit his testimony. isAccording to Stauffer's credited testimony. Johnson admitted having a conversation with Stauffer under the circumstances mentioned, but testified that after showing Stauffer the regu- lation there was only "the usual comment" as to whether the wage adjustment could be paid. He was not asked about, and did not specifically deny, Stauffer's testimony about the back pay and the independent. i4According to Sollars' undenied testimony. ARMCO DRAINAGE & METAL PRODUCTS, INC. 737 On February 28, 1952, the Company received the formal notification from the WSB. >s That same day the Company communicated with its then counsel, who, on February 29, came to the Company's offices at Middletown, Ohio, where he prepared a letter to the Company to be quoted below. Also at Middletown that day, after telephonic discussion and dictation by Hutton, there was prepared a company letter to be sent to the employees over Hutton 's signature. Hutton's letter, with counsel's letter and the WSB letter as attachments thereto, were multi- graphed at Middletown, and sent to Washington Court House for Hutton's signature. They were mailed that same evening to the Company's employees in that city. Because of their importance to the issues in this case , counsel's letter and Hutton's letter are set out at length below. Counsel's letter to the Company , dated February 29, 1952, reads as follows: Gentlemen: In reply to your letter of February 28, 1952, we must advise that you cannot at this time make payment of any wage increases as requested by the Company in September 1951 of the Wage Stabilization Board. On February 28, 1952, the Company received from the Wage Stabilization Board a letter in which approval is given for 51E adjustments in hourly rates of a limited number of job classifications. However, this approval was conditioned as follows: .. this approval has no force and effect in the event the facts are not as repre- sented in your application." When the Company filed its application for wage increases in September 1951, the Company reported to the Wage Stabilization Board that there was no claim for repre- sentation pending before the National Labor Relations Board and there was no election pending as the result of any action of the National Labor Relations Board. On February 5, 1952, the UAW-CIO filed a petition with the National Labor Relations Board claiming to represent your employees. By such filing, the CIO union changed the facts so that the statement which the Company gave to the Wage Stabilization Board, namely, that no representation petition is pending, is no longer true. The CIO union in pursuing its case before the National Labor Relations Board had an election set for March 18. As a result, Resolution 42 of the Wage Stabilization Board must be considered. This reads: "On any application for an adjustment in wages, salaries or other compensation in which the National Labor Relations Board or similar state agency has ordered or scheduled a representation election, the WSB will defer action while such election is pending." Because of the action taken by the CIO in filing its petition with the National Labor Re- lations Board and in having an election set, the facts upon which approval was given in the Company's application have been changed and therefore the statement in the letter of the Wage Stabilization Board "that the approval has no force and effect in the event the facts are not as represented in (the) application" would be controlling. Therefore, as attorneys for the Company, we must advise that because of the pending CIO election, the Company should not make payment of any wage increases as heretofore requested by the Company. Furthermore, should the CIO win the election, the following limits on retroactive pay set by the Wage Stabilization Board would be applicable with reference to any bargaining which might follow: "Where a first contract is being negotiated, the increase can be retroactive to either (1) the beginning of negotiations or (2) the date the union was certified, but no earlier " (W.S.B. Interpretation Bulletin on Regulation No. 6). 15 Actually, it had knowledge before that date that the notification was forthcoming. Maxwell's testimony discloses that on February 26, the Company heard from its Washington, D. C., attorney that the petition was being approved. On February 27 it was common knowledge about the plant that the WSB had acted on the 5-cent increase. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This last situation also requires us to advise you to withhold any wage increases at this time. Hutton's letter to employees of February 29, 1952, reads as follows: Dear Friend: A number of you men in the shop have asked me how our petition for a wage increase was coming and just how much back pay you would have if the petition for increased wages goes through. I have been wondering the best way to get this information to you. Finally I decided to write this letter to your home personally instead of posting a list on the bulletin boards because I thought it would be more confidential. You will remember that your back pay was to start on September 4, 1951, according to the petition we filed with the Wage Stabilization Board. On February 24, there was a total of $20,617 coming to all the men in the shop. On the basis of the actual hours you have worked during the period mentioned, you would have $ 120.08 16 coming to you. I have told a good many of you that the Labor Board election on March 18 will hold up action on our petition. Just a few days ago we got word that approval had been granted to increase six jobs which had been out of line by five cents an hour. I asked to have our lawyers give a legal ruling whether we could pay this increase. So you will understand this situation and have all the facts, I am attaching a copy of our attorney's letter as well as the letter from the Wage Stabilization Board. I hope you will read both of them carefully. If you do, you will see that we are not permitted to make this payment because of the CIO election. If a new bargaining agent is voted in by the election, any wage increase finally agreed upon in a new contract could only start then and not September 4, 1951. This worries me a lot because you have been told differently by outside sources who do not understand our situation. You have all been so friendly and helpful to me that I do not want to see you lose your back pay because of bad advice. Most of you have a wife and family just like me. I know they can use it. 7 Sincerely, H. H. Hutton, Division Manager The February 29 letter was sent not only to the relatively small group of employees af- fected by the already authorized 5-cent hourly wage adjustment, but to all, or most all, of the unit employees. The back-pay amounts inserted in the letters were not confined to the 5-cent approved increase, but included as well what the employees would receive under the 10-cent general hourly increase that had not as yet received WSB approval. In a series of campaign leaflets issued shortly thereafter, the Union took issue with the Company's assertion that it could not pay the authorized 5-cent increase; accused the Com- pany of attempting to use the increase for the purpose of bribing the employees to vote against the Union; assured the Company that it had no objection to its payment; and urged the Company to pay it, offering, if there was any question about it, to go jointly with the Company to the board to request a ruling. On or about March 5, 1952, the Union itself con- tacted the WSB at Washington, D. C., and on March 6, 1952, the executive director of that agency wrote the Union a letter, which did not, however, officially refer to the proceeding pending before it, stating that WSB policy did not "prevent the putting into effect of an in- crease approved by the Board even though aunion election is scheduled subsequent to the date of approval." On March 11, 1952, the Union forwarded a copy of the WSB letter to the Com- pany together with a letter of its own, in which it charged the Company with misrepresenting the facts and misleading the employees by its letter of February 29; demanded that the Com- pany mail a letter of retraction to each employee; and demanded that the Company make i6 The amount stated here is that which appears in the letter used as an exhibit, and varied in letters to other employees. The average amount was in excess of $100 per employee. 17 Emphasis supplied. ARMCO DRAINAGE & METAL PRODUCTS, INC. 739 payment of the authorized retroactive pay.is On March 13, 1952, the Company replied to the Union's letter, in turn charging the Union with misrepresentation to the WSB, and declaring that the letter from the WSB executive secretary was not in response to a request for a ruling in its particular case. 19 Despite the protest and urging of the Union , the Company made no effort to obtain a ruling or interpretation from the WSB on the controverted issue until after the election was held and lost by the Union. But with the election over--though it was followed immediately by the filing of objections which continued the representation proceeding--the Company changed its course. On March 26, it wrote a letter to the WSB, in which it set out what had occurred since the earlier WSB authorization, expressed the belief that it was now in a position to make the approved payments forthwith, and requested the WSB to state its views on that point and also to process promptly the 10-cent portion of its petition. No action was immediately taken by the WSB. On April 8, 1952, the Union wrote the WSB, stating that although it had filed election objections "which in accordance with policies of the Wage Stabilization Board would automatically prevent the Board's approval of the company's application for the general wage increase," the Union was recommending immediate approval of the 10 - cent increase, and would not protest such action. Six days later the WSB notified the Company that it had ap- proved the 10-cent increase, retroactive as of September 4, 1951, and advised the Company that payment of the earlier authorized 5-cent retroactive pay increase was also permissible. On April 18, 1952, the Company paid its employees the authorized retroactive pay adjustments. 3. Threat to discharge employees for supporting union charges As has already been noted, the Union in its letter to the Company, dated March 11, 1952, in effect accused the Company of engaging in unfair labor practices. It appears that even before the election was held there was talk of unfair labor practice charges being filed in the event the Union lost, and, in fact, a decision to that effect had been reached by the Union. Employee Wayne Rhonemus, one of the most active union proponents and a member of its employee organizing committee, testified that a few days before the election Foreman Duval approached him at his place of work and told him in substance that "any man the Company found out signed affidavits against the Company, that sooner or later they would find it out, and they would automatically be fired." Rhonemus, in the context of the conversation, understood the affidavits to refer to union charges. Duval, although testifying he knew of no affidavits or charges being prepared against the Company before the election was held, did not deny making the statement attributed to him by Rhonemus, nor did he otherwise attempt to explain that statement. On all the evidence, I accept Rhonemus' testimony, and find, as al- leged in the amended complaint, that Duval's statement constituted a threat to discharge employees who furnished statements in support of union unfair labor practice charges. 4. Analysis and concluding findings Though the facts relating more particularly to the Citizens' Committee and the Independent, to be considered below, are interrelated with those reported above, their consideration will be delayed so that concluding findings may first be made as to the unfair labor practices already established. On the basis of the allegations of the complaint, they may be cataloged under the following headings: (a) Interrogation: The allegation that the Company violated Section 8 (a) (1) by questioning employees as to their union membership and activities is supported by the following: (a) Mana- ger Senter's questioning of Gill as to his knowledge of who got the Union started; (b) Foreman is In the same letter the Union also advised the Company that 115 employees had signed ap- plication cards designating the Union as their bargaining representative; offered upon request to submit proof of its majority designation; and reiterated its earlier bargaining demand. In addition, the Union complained that, although its own members had been forbidden to solicit in the plant, the Company was permitting leaders of the Independent freely to do so. Finally, the Union in its letter complained of theCompany's in-plant meetings with employees wherein the merits and demerits of the Independent and the Union were discussed and requested similar privileges. 19As for the other matters in the Union's letter, the Company denied that it had engaged in any unfair labor practices, and insisted upon going forward with the election so that the em- ployees' choice could be determined by secret ballot rather than by a card showing. 1322615 0 - 54 - 48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kenneth Johnson's questioning of employees Hensley, Johnson, Sollars, and Stauffer as to their membership in the Union; and (c) Foreman Jardine's like questioning of employees Fryant and Rhonemus. Except for Senter's questioning of Gill, I do not regard these acts as too consequential and give them little weight in my appraisal of the more basic issues of this case. Nevertheless, under well-established Board precedents they are found to constitute illegal interference with employee rights. The Company is not, as it asserts, absolved from liability because the record shows that many plant employees, including some of those ques- tioned, openly professed their union sympathy without appraent fear of such disclosure. See Standard-Coosa-Thatcher Co., 85 NLRB 1358. 20 (b) Threat of discharge; Duval's statement to Rhonertnis ,thattheCompany would discharge employees who furnished affidavits of union unfair labor practice charges, constituted, it is found, a threat of reprisal against employees who chose to exercise their statutorily pro- tected right to assist labor organizations. As such, it was violative of Section 8 (a) (1) of the Act. See Fox Midwest Amusement Co., 98 NLRB 1318. (c) Threats relating to effect of unionization on future plant operations: Division Manager Senter's statement to the employee Shop Committee, that overtime work would be eliminated and plant expansion stopped if the Union came in, as well as his subsequent statement to the same committee that the plant would probably close should that event occur--statements made in a context of open hostility to the Union and not otherwise explicated- -contained, it is found, threats of economic reprisal, violative of Section 8 (a) (1). Foreman Woodruff's statement to employee Kinnison, that the Company would be unable to "dicker" with the Union if it became bargaining representative and would have to close the plant and move elsewhere, falls, I am persuaded, in the same category. Contrary to the Company's contention, I do not regard it, any more than Senter's statements, as a privileged expression of opinion. The Board has held that it is not necessarily to be concluded from the fact that a statement takes the form of an opinion that the statement is also free from a threat of economic reprisal. J. S. Abercrombie Co., 83 NLRB 524. Woodruff's statement must be considered in context with all the surrounding circumstances, including the Company's unconcealed opposition to the Union, Senter's earlier threat, and the activities of the Citizens' Committee--later to be reported--which were largely designed to instill in employees a fear that the Company would move its plant rather than deal with the Union. In that atmosphere, Woodruff's state- ment could only leave the impression--as I am convinced it was intended to--that the Com- pany would, rather than attempt to fulfill its bargaining obligation, move its plant if the Union were successful at the election. 21 (d) Coercive conduct with regard to wage increases and back pa : The complaint alleges, and the answer denies, that the company further violated Section 8 (a) (1), by (1) warning employees that they would lose their back pay if the Union was certified; (2) "positively and unequivocally asserting and erroneously advising and informing its employees" that WSB regulations and rules prevented placing into effect increases already authorized by the WSB; and (3) "positively and unequivocally asserting and erroneously advising and Informing its employees" that WSB regulations and rules prevented payment of retroactive wages if the Union won the election. To support these allegations the General Counsel relies both upon the oral statements made to employees by management representatives and the Company's letter of February 29. 20 The complaint also alleges that the Company illegally interrogated employees by asking how many had joined the Union. To support that allegation the General Counsel relies entirely upon the testimony of employee James Johnson, not previously reported, that in the course of a discussion in late February with Manager Hutton, initiated by Johnson, Hutton inquired of him how many had joined the Union. As this conversation occurred after the Union had made its majority claim, as Hutton's question did not seek the disclosure of names of union mem- bers, and as I am not fully satisfied that Johnson did not by previous statements invite that question, I make no finding of illegality based on that incident. 21In addition to the foregoing, the General Counsel would also base an 8 (a) (1) finding upon remarks made by management representatives, such as those by Murray and Duval specifically reported above, concerning the removal of certain operations from the Ashland plant because of strikes and inability to getalongwith the Union at that plant. Although I think these remarks are properly to be considered in connection with certain other aspects of the case, such as, for example, the added coercive weight they lend to the comments on plant closure, considered above, and the support given by the Company to the organizational efforts of the Independent, to be considered below. I am unable to agree that they contain in themselves threats of eco- nomic reprisal outside the privilege of Section 8 (c). ARMCO DRAINAGE & METAL PRODUCTS. INC. 741 (1) Oral statements Included in this category are Senter's warning to employees through the Shop Committee that if the Union got in "the boys would lose their back pay"; Senter's later similar warning to employee Gill; Hutton's assertion to employee Johnson that the Company would regard the retroactive wage increase as a bargaining issue if the Union won, but would put pressure on the WSB to have it approved and paid immediately if the Union lost; and Duval's state- ment to Kinnison that with a union victory back pay to employees under the WSB petition would be canceled, and although becoming a matter for negotiation, would in no event be made retroactive beyond the certification date. All of these statements were made prior to Hutton's letter and the legal opinion upon which it purported to rest. t2 Unlike Hutton's letter, none of the statements here considered were claimed to have been based on advise of counsel; net do they on their face appear to advise the employees that the consequences warned of would flow from action the Company would be required by law to take rather than from action it would itself decide to take. Senter's statements, accompanied on one occasion by other warnings of reprisal, and on the other by illegal interrogation, take the form of outright threats. Hutton's likewise takes a coercive form, for it promises the benefit of positive company action to assure authorization and payment of retroactive wages only if the Union loses, while clearly implying the Company's policy will be different if the Union wins. Duval's similarly is coercive in tenor, indicating, as it does, not only that the Company would cancel the pending petition if the Union won but also that it would not in any negotiations that followed agree to grant back pay prior to the certification date. If, as the Company now asserts, the management representatives had a noncoercive basis for their remarks, in that they were merely trying to explain what they understood the Company was legally required to do rather than what it would do on its own, they did not, so far as the record discloses, make that purpose clear. 28 As the Board has observed, "employees are not required to look behind the plain meaning of coercive words to find an unexplained rea- son for their utterance." Telechron, Inc., 93 NLRB 474. Finding as I do that the statements here in question were such as reasonably to lead employees to believe the Company would exercise powers within its own control to withhold or grant benefits to employees, depending on the outcome of the election, I conclude that the oral statements here in question were outside the privileged area of Section 8 (c) and violative of Section 8 (a) (1). In reaching that conclusion. I have not overlooked an additional contention suggested by Company counsel at oral argument and in his brief, and claimed to be applicable, I take it, to both the oral statements and the letter. The Company appears to argue that since it was under no contractual or other obligation to pay the back pay, even if approved under its WSB petition, it was entitled if the Union was certified, and indeed would have been obliged, to throw the entire back-pay question into the area of negotiations. Since it could then-- the argument seems to continue--take the position that back pay should not be paid at all or should be traded off for some other item, as might the Union, too, it was within its rights in advising employees- in advance of positions it could with propriety take in the conference room. This argument--which at most could apply to the statements of Hutton and Johnson-- I find without merit as applied to the facts of this case. The Company does not dispute that if it were legally obliged to pay the retroactive increases when approved, it could not re- pudiate that obligation as a reprisal measure against employees for choosing a union, and it could no more threaten to do so. I see no reason why the applicable principle should be dif- ferent here. For although no formal obligation had been undertaken, the Company had never- theless held out to Its employees an expectancy of receiving a retroactive increase as soon as the necessary authorization was obtained. But even if it were otherwise, it would not aid the Company. For, if not then a threat of reprisal, the Company assurance of payment certain if the Union lost, but not otherwise, would still be a promise of benefit conditioned upon their rejection of the Union. On all the evidence, I am fully satisfied that the purpose of the state- ments in question was to induce the employees to vote against the Union. For an employer, with that purpose, to dangle before employees the choice of losing an expectant benefit with a Excluded from present consideration are the additional statements, reported above, of Foreman Johnson to employees Stauffer and Sollars made after the letter was sent. Johnson's statements appear to express opinions based upon the Company's assertions in the letter, and actually add nothing to the letter, the legality of which will be considered below. 23 Thus, Kinnison testified that he interpreted Duval's remarks, when made, to refer to what the Company would do. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union selection or gaining it with union rejection is for him to engage in the clearest form of coercion. (2) The Company's assertion, in its letter of February 29, that it was not permitted to pay the WSB authorized 5-cent increase because of the pending representation election On the basis of what has been presented to me and my own research into Wage Stabiliza- tion Board policies and procedures, I believe there is support for the General Counsel's position that the Company, without violating the law, could have paid the already authorized 5-cent wage increase, particularly after the Union had indicated its acquiescence. But from this it does not necessarily follow that the statement explaining the withholding of payment was made in bad faith and for the purpose of influencing the results of the election, as the General Counsel asserts. Bad faith and unlawful purpose cannot be inferred from error alone. And certainly that is true where, as here, the advice given by counsel, and repeated by the Company, related to a point not so clear as to preclude varying interpretations. What is more, the explanation of why the 5-cent payment was being withheld, unlike the added as- sertion--separately considered below--that no back pay could be paid if the Union won, was not itself of a character calculated to restrain employees in the exercise of their choice. The Company's withholding action is not attacked in the complaint as being violative of the Act, and it is difficult to perceive why its announcement of that action, though based on an erroneous reason, but not one that was coercive per se, should stand in a different posture. The Company's statement in its letter that it was not permitted to pay the 5-cent authorized increase while an election was pending, standing alone, is found not to have violated Section 8 (a) (1). There are, to be sure, other facts present in this case reflecting that the Company capital- ized on the withholding, and utilized the occasion of announcing it to drive home to employees the fear that their back pay would be lost with a union victory. But these relate to another aspect of the letter that we reach now for detailed consideration. (3) The Company's assertion in its letter of February 29 that back pay would be lost if the Union won the election A question has been raised as to what the letter says. Company counsel suggests the Company did not say back pay would irrevocably be lost with a union win, so as to foreclose, for example, all possibility after the election of securing approval of the previously filed WSB petition through Union and Company cooperation. All the letter states, he insists, is that any wage increase negotiated in a new contract could only date from the certification date. Such a conclusion might possibly be drawn by extracting and reading in isolation the single sentence in which that particular statement appears. Butwhen the letter is read as a whole, it can fairly be construed only as a positive and unequivocal assertion to the employees that the Company considered itself forbidden by law, in the eventof a union victory, from making the previously petitioned for retroactive wage adjustments, and that employees consequently must expect to lose their back pay unless they rejected the Union. It is so found. The purported basis of the assertion is an interpretation bulletin issued by the WSB on Regulation No. 6, and quoted--inexactly and partially u --in an attached letter from the 24 The regulation, as published, and to the extent here pertinent, reads as follows: Retroactivity of Increases Put Into Effect Under General Wage Regulation 6 Where the amount of a wage or salary increase is permissible under General Wage Regu- lation 6, the permissible amount of such increases may be made within the limits set forth below. No retroactivity is permissible in connection with such increases going beyond the applicable limits set forth below, without application and prior approval. (Emphasis supplied.) 1.---------------------------------------------------------- 2.---------------------------------------------------------- 3. First contract situation. In this type of case any retroactive date going back to (a) the commencement of negotiations , or (b) certification of the Union will be permissible under General Wage Regulation 6. (Interpretation Bulletin No. 1, issued by WSB April 13, 1951 . See also Section 6E- 1, WSB Consolidated Interpretation Bulletin, issued May 15, 1952.) ARMCO DRAINAGE & METAL PRODUCTS. INC. 743 Company's then counsel. But Regulation No. 6,25 and the interpretation of it relied upon, could have no possible bearing on the petition theCompany then had before the WSB. That regulation is a self-executing regulation, covering generally authorized wage increases, requiring no prior WSB approval, that employers are permitted to make within the fixed allowable limits of the regulation. The self-executing provisions have no application in the case of a plant, such as the Company's, which has no base-pay period, that is, no payroll period ending on or about January 15, 1950, because it was not in operation at the time. The Company must have known this, because that was the very reason why it had been required in the first place to seek WSB approval for its proposed increases. Once the WSB had approved the wage readjust- ments previously petitioned for, Regulation 6 might have become applicable to new increases the Company and the Union might thereafter have negotiated and sought to include in their contract without prior WSB approval. But it had nothing to do with the 5- and 10-cent adjust- ments that had earlier been submitted to the WSB for its approval. Those adjustments were being processed under other WSB regulations--the General Wage Procedural Regulation26 - which themselves contain no limitations on retroactivity, and which do not restrict a union, after becoming a bargaining representative , from being made a party to a petition previously filed by an employer. Thus, it would have been possible, upon certification of the Union, for the Company and the Union together to seek approval of the retroactive increases for which the Company had earlier petitioned, either under the same petition or a newly filed one. And such approval would not have been out of line with WSB policy. 27 If in his letter company counsel was expressing an opinion that WSB regulations would pre- clude, in the event of union certification, further processing- -even with the cooperation of the Union- -of the Company's previously filed petition for retroactivewage adjustments, and fore- close as a matter of law retroactivity back of the certification date, then he was clearly in error in that opinion. Although Hutton's letter unmistakably implies that such was counsel's opinion, I do not read counsel's letter as necessarily stating that . For, as the Company's hearing counsel was careful to observe during oral argument, the letter of counsel who wrote it was concerned solely with the question of whether increases authorized before the election under the pending petition should be paid while the election was pending . It is noted that counsel in his letter does not himself express a direct opinion as to the effect of union certification on the already pending petition. The interpretation to Regulation 6 to which he refers, relates to increases under the contract, not to increases previously determined upon and petitioned for, and the reference is used by him simply as an additional basis for his advice to the Company "to withhold any wage increases at this time." Just how this advice follows from the refer- ence, he does not make clear. But it is unnecessary to speculate on what counsel may have meant. What is important is the Company's understanding at the time it wrote the letter of the situation that would prevail in the event the Union won the election. And on that point, we have the testimony of Division Manager Hutton who personally addressed and signed the letters to the employees . Hutton's testimony clearly reveals, and it is found, that it was his own understanding when he sent his 25 Title 32A--National Defense Appendix, chapter IV; 32A Code of Federal Regulations 1767. 26General Wage Procedural Regulations, Res. 35, 16 Federal Register 10018; 32A Code of Federal Regulations 1740. 27 Though the WSB interpretation bulletins do not cover precisely the situation that was present here, section 6E-2 of the Consolidated Interpretation Bulletin, involving a closely analogous situation, reflects WSB policy. It provides: Where after the commencement of wage negotiations between the Company and X union, Y union is certified as the bargaining agent of the same employees by the N.L.R.B., and thereafter wage negotiations are had with Y union and a wage increase is negotiated within the limitations of GWR 6, such increase may be made retroactive without prior Board approval to any date not earlier than that on which negotiations with X union were com- menced. The analogy appears even closer when it is recalled that the since dissolved Shop Committee became a party to the WSB petition and thus stands very nearly in the position of X union referred to in the example. Moreover, it would seem most unlikely that the WSB would deny otherwise allowable retroactive benefits to employees simply because they had since selected a bargaining agent, thus penalizing them for doing so. That would seem especially true with regard to the 5- cent increase the WSB had already actually approved. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter that payment of retroactive wages back to the petition date would not be foreclosed with the Union's certification, but would simply become a subject for collective bargaining, in the process of which the retroactive wages either might be agreed upon and arranged for through WSB approval (requiring in that event, according to Hutton 's impression, a new peti- tion to the WSB), or they might be traded off for other items. As to what, then, he meant by his statement, "I do not want to see you lose your back pay because of bad advice," Hutton testified as follows: There is always a possibility, let me put it this way, that when you have an election you determine the bargaining agent. Now you come to the time when you go into bargain- ing and you negotiate. Now there had been some very rash things in pamphlets and the like, anywhere from 30 to 40 to 50 cents an hour, and so forth. It could be construed if you go into bargaining, that maybe the bargaining agent wouldn 't even want any relationship with back pay. They could easily want to throw it into terms of current pay and wage rates , and so forth. And that is entirely what I meant , that going into negotiations, wages are an item to be bargained - - - The wages are one of the very big items that go into making up the contract , along with other things in it, and I could not anticipate or explain what might be a bargaining program of some future date. And what was wanted there might not be wanted at all in the future. There is also the element of the necessity for a petition under the Wage Stabilization for any kind of a program which you would have up, and there is always a possibility that if you bargain, the complete picture could all be changed. But if that in fact was Hutton's meaning in telling the employees he did not want to see them "lose [their] back pay," hecertainly failed to make it clear. In the context of the entire letter, and without the benefit of Hutton's testimonial explanation, which the employees did not have, the phrase adverted to could not reasonably be read other than as a warning that employees would lose their back pay if the Union was voted in. And I am convinced Hutton realized this when he sent the letter. The fact that Hutton thus chose to disguise his own understanding and to make it appear that back pay would irretrievably be lost to employees with their choice of the Union, provides persuasive evidence that he was not, as the Company now insists in its brief, simply trying "to give [ the employees] all the facts there were including some of the legal doubts there were about the back pay feature." Hutton's positive and unequivocal assertion to employees that they would lose their back pay if the Union won, when he himself understood that such was not a necessary consequence of union certification, is clearly at variance with the good-faith purpose the Company's brief would ascribe to him. It reveals rather a calculated scheme to induce employees to vote against the Union by holding out to them the immediate loss of economic benefits if they did not do so. Other evidence that the Company was acting with that deliberate design is to be found in the record. Thus, Hutton, inconsistently with the statement in the Company's brief, testified that the Company's basic purpose in sending the letter was to explain to employees why the 5-cent increase was being withheld. That purpose was a proper one in itself, as has already been found. It does not fully explain, however, why the Company considered it also necessary to mail the letter, not only to those affected by the 5-cent increase, but to the bulk of its employees who were not. Hutton's explanation, that the Company felt the 10-cent increase might be forthcoming at any time and wanted therefore to avoid a repetition, is not convincing. Since the Company knew the WSB would not further process the petition with knowledge that an election was pending, it would have been a far simpler matter to write a single letter to the WSB rather than over a 100 extra letters to its employees. Surely, if the basic purpose of the letter was to explain the withholding, there was no need to go into the question of what would happen to the back pay if the Union lost, and to give that feature predominant emphasis. Nor did it require the Company to go to the trouble of inserting in each letter the precise amount due each employee, not only under they-cent authorized increase that affected some, but under the 10-cent as yet unauthorized increase that affected all. The emphasis given the back pay reinforces the view that the Company's primary motive was to impress upon employees the not insubstantial money loss they would suffer as a consequence of union selection. Another indication of the Company's bad faith and coercive design is found in its adamant refusal to join with the Union, or to proceed alone, to seek a ruling from the WSB on whether the 5-cent authorized wage increase could be paid--notwithstanding that the WSB provisions relied upon by the Company were at best far from clear and the Union, insisting payment could be made, had submitted to the Company a letter from the WSB executive secretary to ARMCO DRAINAGE & METAL PRODUCTS, INC. 745 support its position--a letter which while not free from ambiguity would at least have led an employer acting in good faith to explore the matter further. 28 The Company's reluctance until after the election to pursue the avenue open to it for a ruling is I think explainable on this ground: With payment once made, the force of the threatened loss of back pay on the em- ployees affected by the 5-cent increase would have been entirely lost; with payment withheld, the employees were left in fear that their expected back pay would be forfeited unless they rejected the Union in accordance with the Company's unconcealed desires. Finally, the conclusion here reached, that the Company's action in writing the employees concerning their retroactive pay was not inspired by advice of counsel, but was independently designed with coercive intent to defeat the Union at the election, is supported by the findings earlier made, showing that even before receiving advice of counsel, management representa- tives had already--and without adverting to WSB regulations--threatened employees with the loss of their back pay if the Union won. The Company contends that its letter must be ruled privileged because it expressed its position, not in terms of its own refusal to pay, but in terms of what the law purportedly re- quired it to do. On the record of this case, I am unable to agree. From the fact that statements are couched in the formofanopinion,it does not necessarily follow that they are not coercive. If statements are designed to coerce and are of a character that tend to coerce, they may not claim the shelter of Section 8 (c) merely because threats or promises of benefit implicit in them are cast in some other form. "Employers still may not, under the guise of merely ex- ercising their right of free speech, pursue a course of conduct designed to restrain and coerce employees in the exercise of rights guaranteed by the Act." N. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647, 649 (C. A. 5). I am satisfied that the statements concerning back pay were unlawfully coercive not only in their purpose but in their content. Had the Company, without more, advised its employees that it planned to withdraw their back pay benefits if they chose the Union, but not otherwise, there would have been no doubt of the coercive character of its advice. Here the form was different, but what the Company told its employees in substance and effect was exactly the same--except that the Company added as a reason that the law required it, though in fact it did not, and the Company understood itdidnot. Where proposed action is illegally discrimina- tory, it is just as much an improper restraint upon employees for an employer to say he must take such action as it is for him to say he will take it. Nor does it aid the Company that the reason given was phrased in terms of what the law required, since in that the Company was in error. Reliance upon the erroneous premise of law it assigned would have afforded the Company no excuse had it discriminated against employees in the payment of benefits because of their selection of the Union. It follows that it was no less unlawful for the Company on the basis of that same erroneous premise to announce to its employees that their selection of the Union would have theeffectof bringing aboutsuch discrimination. See, J. I. Case v. N. L. R. B., 321 U. S. 332., 339; affg. N. L. R. B. v. J. I. Case Co., 134 F. 2d 70, 71, 73. Especially is that true where, as here, to error are added the absence of a good-faith belief in the soundness of the premise asserted as a basis for action, and a deliberate purpose to influence the results of a pending election. Nor was the coercive effect of the Company's statements neutralized, as the Company claims, by the fact that the Union had full opportunity, and in fact did, advise the employees of its own interpretation of the applicable law. That might have been true if, for example, the payment of the retroactive wage benefits had depended entirely upon a determination of what the WSB regulations provided, so that if the Company was wrong in its representation of the applicable law. WSB approval and payment were bound to follow an unaltered course just as if the inaccurate representation had not been made. In that event the Union could compete with the Company on even ground, and leave to the employees to evaluate the accuracy and reliability of the conflicting information presented to them, without the influence upon them of extraneous restraining factors. But in this case, the employees were not, as contended by the Company, "in the middle of an even argument." The problem for them could not be solved simply by their determination of who was right. For even if the Union was right, the Company would still be left in a position to exercise its economic power to withhold payment of the controversial benefits. The circumstance alone was sufficient to remove the Company's state- ments from the area of privilege. It must be reiterated for emphasis thatherethe Company was under no contractual or other legal obligation to pay the employees the retroactive wage benefits for the approval of which 28 Interpretive rulings from the WSB are authorized by section 4 3 of WSB Procedural Regu- lations, 32A Code of Federal Regulations 1740, 1743. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it had petitioned the WSB. It had filed its petition on an ex parte basis and could withdraw it on the same basis. Even to the extent that approval had already been given on the 5-cent adjustment, it remained free to grant or to withhold payment. Though it would be obliged to bargain with the Union if elected, it could still urge at the conference table that the contract should concern itself only with current items of wages, hours, and working conditions effec- tive from the date of the Union's certification. All these, and more, were factors the em- ployees could not ignore in weighing the Company 's expressed position, and they were factors of coercive rather than persuasive force. Though employees might be persuaded by the Union's argument that retroactive wages could be paid, this would not persuade them they would be paid, or that with union selection they might expect the same-necessary cooperation from the Company to have them paid as they might with union rejection. On the contrary, it was only natural for the employees to infer from the letter, with its positive and unequivocal assertions of what the law purportedly required, and its clear warning of back-pay losses if the Union won--particularly when considered against the backdrop of the Company's un- concealed opposition to the Union and its other coercive conduct, including earlier threats with regard to back pay--that the Company was determined to retaliate if the Union won by failing to make the retroactive wage adjustments already approved, halting the processing of its petition on the as yet unauthorized increases, and resisting union efforts to reclaim such back pay. And belief that the Company was not accurately representing the law would tend to strengthen rather than to eradicate such an inference.29 Moreover, while the Company by its letter was at least creating doubts and uncertainties in employees' minds as to whether back pay would be paid at all if the Union won, it was setting those doubts and uncertainties off against an implicit assurance of payment certain if the Union lost. Thus, wholly apart from its reprisal aspects, the letter contained, it is found, a promise of benefit conditioned upon the employees' rejection of the Union. It is concluded and found that the Company illegally interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, by erroneously repre- senting to its employees, with the purpose and intent of causing them to vote against the Union, that if the Union was selected as bargaining agent the Company would be prevented from placing into effect retroactive wage increases, and that employees would lose their back pay as a result, while at the same time in effect promising them payment of such benefits if they rejected the Union. G. Activities of the Citizens' Committee; further interference, restraint, and coercion The nomenclature "Citizens' Committee" is being used in this report as a convenient refer- ence to the individual Respondents, collectively, who the complaint alleges engaged as agents of the Company in certain acts of interference, restraint, and coercion. Actually, there was no formal organization by that name, although the individual Respondents and other local merchants and businessmen who, as hereinafter noted, joined with them in calling upon em- ployees were sometimes loosely referred to in that manner. Washington Court House merchants, acting through local chamber of commerce, had been active in prevailing upon the Company to open its plant in that locality, and, as an inducement to the Company had arranged for the purchase and free transfer to the Company of a tract of land the Company needed to fill out property it already owned. They considered it to their own best interests as well as that of the community for the plant to remain in the area and to con- tinue to expand. After the Union made its bargaining demand, they became concerned about the developing situation. The following appears from the testimony of the Respondent, Carroll Halliday, called as an adverse witness by the General Counsel: After the advent of the Union, the secretary of the local chamber of commerce arranged a number of meetings, attended by about 20 of the more prominent merchants and businessmen in the area , but not held under the auspices of the chamber of commerce as such. The purpose of the meetings was "to see if we could do something about helping conditions out at the Armco plant." No company officials were present at the first meeting, but at least two of them--including Executive Vice-President Patton and C. H. Murray--were present at the others. The Union was discussed by company 29 That such an inference was not unreasonable is shown by Hutton's testimony, reflecting that the Company did have in mind the withholding of otherwise allowable back pay, though consented to by the Union, at least for bargaining purposes. ARMCO DRAINAGE & METAL PRODUCTS, INC. 747 officials at these meetings. The testimony of Halliday, a reluctant witness, is obscure as to precisely what was said, but there is enough in it to disclose that the company officials spoke, among other things, of their unhappy experiences with a CIO union at the Ashland plant, of the strike that had occurred there, and of the consequences of the strike. They also indicated-- with reference to the Union--their "shock" over the situation that had evolved at the local plant. At one of the meetings, at which Patton and Murray were in attendance, a list of the plant employees was supplied, so and, in the presence of the company officials, the names on the list were allocated among the 15 or 20 local citizens participating in the meeting, each of whom volunteered personally to call at the homes of the employees assigned to him for the purpose of discussing the plant situation with them. Halliday personally undertook to see about 10 to 15, and this he did before the election. After the election was held, and lost by the Union, the group in question did not meet again. Among those who attended these meetings, besides Halliday, were the Respondents Winston Hill, who was then city manager, and William Dews. The Respondent C. E. Gidding was not present, and does not appear to have engaged in activities along the line of the others. As to him the relevant allegations of the complaint were dismissed at the hearing on motion. Halliday testified that the Respondent Paul Van Voorhis was "probably" present, but Van Voorhis denied he was and I accept his denial. It appears, however, that Van Voorhis--owner and manager of a local lending institution--did participate in the venture of the other individual Respondents, but in another way. Van Voorhis drew from the Company's list of employees, provided him by Vice-President Patton, the names of about 40 employees with whom his company had done business, most of whom at the time had current loans outstanding, and sent a personal letter to each of them. Before sending the letter he discussed its contents with Patton. The letter itself was multigraphed at the Company's plant, and mailed in envelopes typed by the Company's clerical force. Van Voorhis' letter, written shortly before the election, besides urging employees to think carefully before making their decision, to vote in accordance with their convictions and beliefs, and not to underestimate the importance of their votes, had this to say: Our customers in many other cities tell us that outside Union organizers painted "bright and shiny" pictures, but they were unable to discover the true picture until it was too late. Don't let this happen to you. Dig deep and get all the facts. As for the activities of the other individual Respondents, the following specific incidents are established by uncontradicted testimony: 1. Several weeks before the election, Hill came to the plant, apparently being admitted through the plant gate, and spoke to an employee group consisting of Boudurant, Sollars, Merritt, Johnson, and Riley. Si Hill began by inquiring about the "trouble" in the plant, but later went on to point out how difficult it had been to get the Company to open a plant at Washington Court House, and to express the fear that "If the CIO comes in here, why they will move the plant out." 2. Hill also visited the home of employee Merritt, inquired why the employees wanted the CIO, and stated he did not want anything to happen at the plant that would cause trouble. 3. Halliday visited employee Sollars about a week before the election. After inquiring about the "trouble" at the plant. Halliday turned the conversation to the Company's Ashland plant and spoke of the strike that had occurred at that plant and of how employees had gone hungry as a result. In the course of his remarks he stated, according to Sollar's undenied and credited testimony, that he was "afraid if the CIO got in there they would do like they did down in Ashland, they would move the plant out." Halliday also brought up the subject of the Independent, asking Sollars whether he did not think that labor organization would "work out" at the plant. 4. Halliday also visited the home of employee Runnels to whom he spoke generally about how it would hurt business in the county if the Union got in. so Winston Hill, another Respondent, testified that he received the employees' list from Plant Manager Senter. siBoudurant and Dews, who testified for the General Counsel on that subject, did not in their testimony disclose how the meeting was arranged. According to Hill, it was arranged through the secretary of the chamber of commerce. Hill denied that company officials had knowledge of the meeting 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Dews visited Merritt's home about the same time that Hill did. Dews inquired about the dissatisfaction in the plant, asked why the boys wanted the CIO, and pointed out how hard the townspeople had worked to get the Company to bring the plant to Washington Court House. 6. Dews also visited the home ofemployeeJohnson in late February. He opened the conver- sation in the same manner by inquiring about the trouble at the plant. After Johnson expressed himself at length on that subject and told him about the employees' decision to bring the Union in, Halliday remarked , "Well, we don't want the CIO over here; Independent, yes, but not the CIO." Dews gave as his reason strikes that other CIO unions were having. Following his visit, Dews telephoned Johnson on several occasions to ask for names of employees who might be willing to go to Middletown where Armco's principal place of business was located, for the purpose of investigating the Independent . Dews told Johnson he would lend him his own car for that purpose if Johnson required transportation. In view of the meetings and consultations held by management officials with the so-called Citizens' Committee, the conduct of the Company in providing members of that Committee with listings of its employees, the Company's knowledge and acquiescence in the use to which such listings were put, and the fact that statements made to employees by members of the Committee paralleled statements elsewhere in this report found to have been made by man- agement representatives and generally supported positions found to be taken by the Company, I am persuaded, and I find, that the Company authorized and approved the Committee's ac- tivities, which, I further find, were undertaken on behalf of the Company. For that reason, I find that the Company is responsible in law for the activities of the individual Respondents on its behalf. In addition, I find that, by aiding, abetting , assisting, and cooperating with the so- called Citizens' Committee in its campaign against the Union, the Company independently interfered with, restrained, and coerced its employees in the exercise of rights under Section 7 of the Act. Reliance Mfg, Co. v. N. L. R. B., 125 F. 2d 311, 317 (C. A. 7). With regard to the specific conduct of the individual Respondents , already found to be at- tributable to the Company, my findings are as follows: (1) Hill's statement to an employee group in the plant, implying that the Company would remove its plant if the Union won, and Halliday's similar statement to employee Sollars , constituted illegal interference, restraint, and coercion by the Company. I place in the same category Dews' comments to Merritt, where after asking why the boys wanted the CIO, he pointed out how difficult it had been to bring the plant to the community. Though more veiled, these comments , I find, carried the same coercive implications as the remarks of Hill and Halliday just noted; (2) 1 find no illegality per se in Van Voorhis' letter to employees, in Hill's remarks to Merritt, or in Halliday's to R unnels . I am unable to agree with the General Counsel that there is an implication in Van Voorhis ' letter that the Company would close the plant if the CIO were elected. I think the letter falls within the privileged area of Section 8 (c). Hill's remarks to Merritt are too equivocal to support a finding of coercion , as suggested by the General Counsel. The same is true of Halliday's to Runnels ; and (3) thecomments of Halliday to Sollars and Dews to Merritt concerning the Independent, while not illegal in themselves , have a bearing on the issues to be considered in the following section of this report, relating to the Company's support of the Independent , and will be taken into account in the resolution of that issue. Nothing has been said yet about the personal liability of the individual Respondents stated in the complaint to constitute the "Citizens' Committee" and alleged, and proved, to have acted on behalf of the Company. As noted, there is no entity or formal organization known by that or any other name, and the loose grouping of businessmen who informally gathered to- gether for the purposes indicated above has long since ceased to function. Though under the Act agents are culpable along with their principals for unfair labor practices in which they engage, any order entered in this case would have to be confined to those who were named in the complaint as parties . Of the approximately 20 businessmen who met with each other, and with the Company, only 5 were named in the complaint, and of these only 3--Hill, Halliday, and Dews--have been found to have engaged in conduct that was illegal per se. And as to each of them, the record discloses but 1 coercive statement. Insofar as these coercive statements are attributable to the Company, they may not be considered insubstantial, especially when considered in context with the other illegal activity in which it has been found the Company engaged. But when the 3, named above, are individually considered, I do not think that the single coercive remark established against each of them is as to him alone enough to support an independent remedial order . The order to be entered against the Company will run to its agents as well, and will thus be sufficient to reach the individual Respondents as well as others similarly situated should they in the future, acting for and on behalf of the Company, engage in unfair labor practices of the kind proscribed by the order. Consequently, no inde- ARMCO DRAINAGE & METAL PRODUCTS, INC. 749 pendent findings of unfair labor practices are made as against any of the individual Respond- ents, and it will be recommended that as to them the complaint be dismissed. F. Company's assistance and support of Independent 1. Evidence of assistance and support The Armco Employees Independent Federation, Inc., herein called the Independent, has for a number of years been the employee bargaining representative at Armco's main plant at Middletown, Ohio, where it is the certified representative of Armco Steel employees and the recognized, though uncertified, representative of the employees of Armco Drainage. Before the advent of the Union, the Independent, so far as appears, had shown no interest in the em- ployees at the Company's Washington Court House plant. The Independent made its appearance at Washington Court House about the beginning of March, not long after the execution of the consent-election agreement. Its local organizing committee was composed of Frank Mann, Robert Goldsbury, Grover Shipley, and Hayward C. Riley, all employees at that plant. During the preelection period it conducted a vigorous campaign along two fronts. The first was directed toward inducing employees to quit the Union and to join its organization. The Independent succeeded during the preelection period in obtaining designation cards from at least 32 employees who had theretofore designated the Union, enough to reduce the Union's designation to less than a majority if those employees who signed Independent designations are deemed thereby to have revoked their earlier union designations. The second was directed toward inducing employees to vote against the Union in the forthcoming election in which the Independent was not on the ballot. Even before the Independent made its appearance at the plant--but after the bargaining de- mand of the Union--management representatives suggested to employees that they give serious consideration to the selection of an independent labor organization as an alternative to the Union. Thus, shortly after the Union made its bargaining demand, Hutton, then still project engineer, came to employee Rhonemus' place of work and engaged him in a conversation which led to the Union, a subject apparently first mentioned by Rhonemus. During their talk Hutton spoke of the Company's unhappy experience with a CIO union at Ashland and of the strike and unemployment that had followed. Hutton then, himself bringing up the subject of an independent union, told Rhonemus in substance that it would be to the employees' advantage to select an independent labor organization which did not believe in strikes. Later that month, Hutton joined a group meeting of about 15 employees at 1 of the plant buildings, according to Hutton at the invitation of 1 of the employees in the group, whose identity, however, he could not recall. During the meeting, Hutton was asked point blank if he was against the Union. Hutton replied that he believed the employees should be represented, but not by the Union. He stated it to be his experience that employees could accomplish more by bargaining through an organization confined to the employees of a single employer rather than through an outside labor organization. To support his position, Hutton pointed out that the Company had been, unable to get along with the CIO at Ashland. He then contrasted the situa- tion at Ashland with that at Middletown where the Independent was the representative. At Middletown, he said, the Independent had done a good job, and he would prefer to see the Independent come in at Washington Court House. In the course of his comments, Hutton re- marked that the plant growth at Washington Court House depended upon the outcome of the representation situation. At the conclusion of the meeting, he told the employees that if any of them wanted information about the Independent they could call on him at the local hotel where he was then residing, that his door would always be open to them for that purpose. at 32 The findings made in this paragraph are based upon a synthesis of the testimony of em- ployee Kinnison and Hutton, to the extent that of each is believed credible. Actually, there is not a substantial variance between the two versions, except for the emphasis placed by each on particular aspects, and for the fact that Hutton insisted that everything he said was given in response to specific questions. Although, I believe that Hutton was asked a question about the Union. I am persuaded also that his comments concerning the Independent were ventured by himself. Kinnison fixed the date of the meeting as "several weeks" before the election. Hutton testified that it occurred while he was still construction engineer, which would place the date in February. I think that in this Hutton is correct, for the substance of the conversa- tion indicates that the Independent had not yet formally appeared on the scene. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During a meeting between Hutton (now manager) and employee Johnson , initiated by the latter in the early part of February--other aspects of which have earlier been considered-- Hutton , after the subject was apparently raised by Johnson, expressed his judgment on the merits of anoutsideversus an independent labor organization . He told Johnson that while he felt employee representation was desirable wherever a sizeable number of employees was involved, it was his experience that better management --labor relations -- were established where an independent labor organization with localized control was the bargaining representative. The Company's experience with the Independent had been good, he said , but not so its experience with the CIO at Ashland. Independent labor organizations had worked well at other plants, he added, and would work well at Washington Court House. In response to Johnson's question as to whether the plant would close if theUnion won the election , Hutton replied that it would not, but he indicated that this , along with others , might be a factor upon which continued shop ex- pansion would hinge. In response to another question from Johnson, as to how long employees would have to wait for another election and opportunity to choose a bargaining representative if the Union lost, Hutton replied a year, but he immediately hastened to add that if the Inde- pendent (according to Johnson's version) or an independent (according to Hutton's) could demonstrate it had a majority , it could be recognized without an election and without the ne- cessity of waiting the year. 33 About the middle of February, Foreman Kenneth Johnson approached employee Stauffer, inquired of him what he thought of the situation generally, and then went on to suggest that Stauffer--who had previously worked at the neighboring National Cash Register Company which had an independent labor organization —"investigate and see what kind of a deal that they had over there with it, because he heard they had a pretty good set-up with the Inde- pendent Union over there." Johnson then went on to say, as further appears from Stauffer's credited testimony , "that he didn 't think we needed the UAW-CIO, he thought the Independent Union could do just as much good and your dues was a lot cheaper." Foreman Johnson's suggestion about investigating the independent union at the National Cash Register Company was not confined to Stauffer. The credited testimony of two other employee witnesses, James Johnson and Hensley, shows that on subsequent occasions Foreman Johnson made like sug- gestions to them.34 About the first of March, Foreman Kenneth Johnson came to the machine of employee James Johnson, spoke to him of the general plant situation , and then brought the discussion around to the Independent. Employee Johnson asked Foreman Johnson why the Independent had not sent representatives to talk to the employees at Washington Court House if they were really interested in them. Foreman Johnson replied that Independent representatives could not come to the plant, but that arrangements would have to be made for a meeting outside the plant. Johnson added, "We will see if the [arrangements ] can't be made." 35 These are not the only occasions revealed by the record, occurring before the actual appearance of the Independent on the scene, when employees were prompted by company representatives to seek representation through the Independent , or a similar organization, rather than through the Union. One other has been referred to above , in the discussion of the "Citizens' Committee" activities found attributable to the Company. It will be recalled that after visiting employee Johnson 's home and indicating that an independent but not the CIO would be acceptable, William Dews telephoned Johnson on a number of occasions to obtain names of employees willing to go to Middletown to investigate the Independent , and, in that connection , offered to support such a trip by providing necessary transportation. After the actual appearance of the Independent , management representatives in conversa- tions with employees often expressed their preference for that organization over the Union. Among the points emphasized was that Independent dues were cheaper , and that the Inde- pendent unlike the CIO did not believe in strikes . The disastrous strike consequences at the Ashland plant were particularly pointed up . Illustrative of such expressions is that of Fore- man Duval to a group of 4 or 5 employees about 2 weeks before the election . As appears from the credited testimony of Lawrence Gill, Duval told the group , "The CIO comes in, you know 33 The findings in this paragraph are based upon a synthesis of credited testimony of John- son and Hutton. Such variances as do appear in their respective versions are relatively slight. 34 Foreman Johnson's denial, in the light of his entire testimony did not impress me as credible, and I do not accept it. 26 According to James Johnson's credited testimony. Foreman Johnson's testimony, that the conversation at this time was about getting someone from higher management to come down from Middletown to talk to the employees, is not believed and is rejected. ARMCO DRAINAGE & METAL PRODUCTS, INC. 751 what is going to happen. Why get an organization in that you know that strikes, when you have an Independent Union at Middletown that you know has been working perfectly, haven't been out on strikes, and the men have been getting the things they want without going out on strikes." At times the comments of supervisory officials in support of the Independent were tied in with the Company's expressed position on other matters, already found to be coercive. Thus Duval spoke to employees Kinnison and Glenn of the advantages of the Independent during a conversation in which he also expressed the Company's position that the employees would lose their back-pay if the Union was established as the bargaining agent. With specific regard to the back-pay issue, the contrasting attitude of the Company toward the Union and the Inde- pendent was sharply pointed up in a conversation between Foreman Kenneth Johnson and em- ployee Stauffer. That conversation occurred at Johnson's office to which Stauffer had been summoned from his place of work assertedly for the purpose of proving to him that the Company could not pay employees back pay if the Union won. After Johnson stated that em- ployees would lose all their back pay if the Union won, Stauffer asked him how, then, the retroactive wages could be paid if the Independent was made the bargaining agent. Johnson replied that the Company would arrange to do that by delaying recognition of the Independent "until after the back pay had been paid to employees." as During the preelection period, it was not unusual for employees to gather in groups, some- times with the participation of supervisory employees to discuss the issues of the election campaign. Such gatherings often occurred during as well as off working hours, and as the election approached a substantial amount of the employees' time was spent in talk of this character. At these gatherings views were expressed both for and against the Union. Al- though supervisory employees often broke up discussions in which they were not involved in the interest of maintaining production, they made no effort to discipline employees because they engaged in them or because of the positions they expressed. The General Counsel con- cedes that the Company did not discriminate against union adherents for their participation on such discussions. But he contends, nevertheless, that where actual solicitation of member- ship was involved, the Company adopted a disparate policy as between the Union and the Inde- pendent, by imposing restrictions upon the Union, while permitting Independent organizers considerable ]attitude, including use of its office facilities, to solicit employee signatures to designation cards on company time and property. The record supports that contention. To some extent, the restrictions imposed upon solicitation by the Union have already been considered. Thus, it will be recalled, at the meeting with the Shop Committee shortly after the Union's original bargaining demand. Senter issued through the Committee a warning to em- ployees against distributing union cards on company property. The record reflects that in at least one department Senter's announcement was subsequently followed up by a direct warning from the supervisor in charge to the departmental employees. James Johnson testified with- out contradiction, and it is found, that at a regular safety meeting held about February 7. 1952, and attended by the approximately 20 employees in his department, Foreman Barr an- nounced to the assembled employees that "he had orders from the front office if he caught anybody passing out cards or literature, signing up, or anything, anything to do with the CIO, to send them to the front office." Although it appears that despite this order, union proponents continued on occasions to engage in solicitation on company time, it also appears, that in con- trast to Independent organizers, they did so secretly, care being taken not to be observed by management representatives. Union literature was never distributed on company property at all, but only outside the plant gates. There is evidence reflecting that the restriction imposed upon the Union against passing out union cards and literature was carried over into the period after the Independent began its organizational campaign. Thus, Wayne Rhonemus, a member of the Union's employee organizing committee, testified without contradiction, and it is found, that several weeks before the election his foreman, Jardine, approached him at his place of work and warned him that "if he caught[him] or anybody else passing out union cards he was supposed to turn them in at the front office." Rhonemus inquired of Jardine why, then, Inde- pendent adherents were permitted to go about the plant soliciting for their organization, freely and openly and without complaint from management even when they disturbed em- ployees at their work. Jardine did not reply, but simply shrugged his shoulders and walked away. There is no evidence that the Company ever sought to impose similar restrictions upon the Independent. On the contrary, the record reflects that on the day of the election members of the Independent organizing committee on plant premises distributed to employees as they 36According to Stauffer's credited testimony. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were returning from lunch leaflets reminding them of the costly CIO strike "when this plant was located at Ashland ," and asking them to reject the Union so as to give the Independent an opportunity to represent them. There is also testimony , that I credit, showing that mem- bers of the Independent 's organizing committee openly went about the plant with Independent designation cards showing from their pockets , and on occasions --sometimes outside their own departments --passed out such cards and solicited signatures from employees at their work while foremen were in the vicinity and in a position to observe. The allegation of the complaint , that the Company assisted the Independent by permitting its officers to use offices of supervisory personnel to solicit employees to join the Independent, finds support in the following incident : Several witnesses for the General Counsel- -Russell Bondurant , Herman Merritt , William Roberts , and Hugh Oberschlake all of whom I credit-- testified that about 2 weeks before the election Frank Mann, an Independent leader, approached an employee named Pickett on the plant floor during working hours , solicited his signature to an Independent designation card, and invited him into a plant office used by Foremen Johnson and Barr for the purpose of signing it. At that time both foremen were in the office, a small 8 by 10 room. The General Counsel's witnesses , watching through the office window, observed Pickett seat himself at a desk and in the presence of the foremen sign the card handed him by Mann. As Foreman Barr left the office shortly thereafter , one of the employees , Roberts, told Barr he was going to report to the Union what he had observed. Barr's only comment, according to the undenied testimony of the General Counsel 's witnesses , was, "I don't give a damn what you do. " Johnson's testimony that he did not observe that incident was not con- vincing. In any event I am persuaded that Barr , who though available was not called as a witness , did observe it, and at least by his silence acquiesced in and in effect permitted Mann to use his office for solicitation activity. sr 2. Concluding findings The complaint alleges the Company dominated and interfered with the formation of the In- dependent and contributed support to it. At the hearing, however, the General Counsel made it clear he was no longer claiming domination. The only question that must be decided, then, is whether the Company at its Washington Court House plant engaged in illegal interference and support with regard to the Independent . On all the evidence I am persuaded that such a finding is supported. The facts recited above clearly disclose , and it is found, that, after the Union made its bargaining demand, the Company sought to induce and encourage employees to select an un- affiliated labor organization , and more particularly the Independent , as their bargaining rep- resentative in lieu of the Union ; that, with the appearance of the Independent upon the scene, the Company through management representatives championed the cause of that organiza- tion as against that of the Union , and that in furtherance of its desires to have the Independent rather than the Union installed as bargaining representative , the Company permitted the Independent organizing committee privileges that it disparitely sought to deny the Union. The particular facts relating to the Independent have been treated separately in this report only for the purpose of orderly arrangement . In assessing their import, however, they are not fairly to be viewed in isolation , but must be considered in the context of the Company's entire course of conduct , including its refusal to recognize the Union without an election, its unconcealed attitude of opposition toward the Union following the bargaining demand, and the illegally coercive conduct in which , as found above, it engaged in its efforts to wean em- ployees from the Union. See N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7); Con- sumers Power Co. v. N. L. R. B., 113 F. 2d 38, 44 (C. A. 6); Corning Glass Works, 100 NLRB 444. So considered , they more obviously reflect, not only that it was the Company pur- s/ The complaint alleges that the Company further assisted the Independent by openly con- ferring with Independent officers on plant premises during working hours in full view of em- ployees. To support that allegation, the General Counsel called a number of witnesses who testified that on one occasion, about 5 weeks before the election, they observed Hutton con- ferring with the Independent organizing committee in a glass - partitioned office normally used by the superintendent and clearly visible to employees on the shop floor. Hutton testified that the conference concerned a request to clarify a condition of employment in which one of this group was personally interested, and that he did not know at the time that the employees in this group constituted the independent organizing committee . While Hutton's testimony on the latter point was not entirely convincing , I think the incident in any event is too equivocal to prove anything, and I base no finding on it. ARMCO DRAINAGE & METAL PRODUCTS, INC. 753 pose and intent to aid one of two competing labor organizations, but that the Company was "tolerant of one organization, in proportion as it was intolerant of the other" Consumers Power Co. v. N. L. R. B., supra. By thus conducting itself, the Company violated the oft- repeated tole, most recently reiterated by the Board in Corning Glass Works, supra, that an employer must maintain strict neutrality when his employees are simultaneously being organized by two or more labor organizations. In such cases conduct showing favoritism for one of the competing unions defeats the Congressional purpose of affording employees complete freedom in their selection of a bargaining representative. The fact that much of the Respondent's conduct in support of the Independent took the form of verbal statements does not in the circumstances of this case provide immunity for the Respondent. It is true, of course, that, standing alone, mere expressions of preference for 1 of 2 competing labor organizations or types of labor organizations are privileged under Section 8 (c) of the Act. But in this case the expressions of preference for the Independent do not stand alone. Contextually they are associated in point of time and setting with the threats and promises of benefit found above to have been made by the Company to induce em- ployee rejection of the Union. Where, as here, an employer makes clear that he desires em- ployee representation but prefers 1 of 2 competing labor organizations over the other, and engages in a coercive course of conduct toward the one while expressing his favor for the other, he cannot be heard to say that his statements supporting the favored organization fall within the area of privileged speech simply because, if viewed separate and apart, they may not in themselves state threats or promises. In such a situation the coercive thrust of the illegal conduct directed toward the one must necessarily extend to and leave its impress upon the expressions of favor for the other. Both the coercion and the expression of favor then form an inseparable pattern of conduct, and where, as it is here found, the total effect is to impose pressure upon employees to join the favored union rather than the other, Section 8 (c) does not apply to relieve the employer from a finding of illegal assistance and support. N. L. R. B. v. Kropp Forge Co., supra; Corning Glass Works, supra. Moreover, and aside from the Company's related coercive course of conduct vis-a-vis the Union, the record here shows that the Company, in fostering the cause of the Independent against the Union, did not confine itself simply to the expression of views, arguments, and opinion such as are normally within the purview of Section 8 (c). That is, of course, true with regard to the Company's conduct in restricting union adherents from distributing cards and literature upon its premises while allowing the Independent broad lattitude in that connection, extending, at least on one occasion, to the use of a management office. Such disparity in treatment clearly constituted a material form of assistance to the Independent. But it is also true with regard to some of the verbal statements found to have been made by company rep- resentatives. Thus, the following can scarcely be viewed as expressions of opinion, views, or argument protected by Section 8 (c) of the Act--(a) the invitation to come to his hotel for in- formation about the Independent that Hutton extended toa group of 15 employees during a con- versation in which he also mentioned that the plant growth depended on the outcome of the representation situation; (b) Hutton's stated willingness to recognize the Independent on a card-showing without awaiting the permissible period of a year between elections, in con- trast to the Company's position that it would accept only election results as proof of the Union's majority; (c) Foreman Johnson' s urging a number of employees to investigate another independent union at a neighboring plant to see how well organizations of that type worked; (d) Foreman Johnson's offer in his conversation with employee Johnson to make arrange- ments with the Independent for a meeting with employees outside the plant; (e) Dew's solici- tation of employees for a trip to Middletown to investigate the Independent, and his offer in that connection to provide necessary transportation; and (f) Foreman Johnson's assertion to Stauffer that, while employees would lose their back pay if the Union won, arrangements would be made to pay such back if a majority of the employees designated the Independent, thereby coupling a threat of loss and a promise of benefit dependent upon the employees' choice of one or the other of the two competing labor organizations. Far from constituting expressions of opinion, these constituted, it is found, acts of tangible sponsorship, assistance, and support of the Independent. It is immaterial that--save in one instance-- the statements made did not in themselves contain threats of reprisal or promises of benefit. Where, as here, the issue is one of illegal sponsorship, assistance, and support under Section 8 (a) (2), it is not essential that there be an overt promise of benefit to employees who join the favored union or on overt threat against employees who join the union the employer opposes. Corning Glass Works, supra. Nor does it matter that the sponsorship, assistance, and support took the form of 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vocally articulated statements rather than some other form. Where, as here, the statements are not privileged expressions within the purview of Section 8 (c), they must be viewed as verbal acts, and the rule applies that "pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways" N. L. R. B. v. Virginia Electric Power Co., 314 U. S. 469, 477; N. L. R. B. v. Kropp Forge Co., supra Corning Glass Works, supra. On the entire record it is concluded and found that the Company sponsored, encouraged, and assisted the Independent at its Washington Court House plant, thereby interfering with its formation and contributing support to it in violation of Section 8 (a) (2). By such conduct, it is further found, the Company also violated Section 8 (a) (1). G. Disposition of objections to the election In view of the unfair labor practices found above to have been engaged in by the Company-- unfair labor practices that continued after the date of the consent-election agreement--it is found that the election was not an expression of the employees' free choice, and that it did not represent their free, untrammeled, and uncoerced wishes as to collective-bargaining repre- sentation. The Company's contention that the Union is estopped from urging such unfair labor practices as a basis for setting aside the election, because it proceeded to the election with knowledge thereof, is overruled. See The Great Atlantic & Pacific Tea Company, 101 NLRB 118; The M. H. Davidson Company, 94 NLRB 142. It will therefore be recommended that the Union's objections to the election be sustained and that the results of the election be set aside. Since, as held below, the Company's challenge of the Union's majority was made in bad faith, therefore raising no genuine question of representation, and since the remedial order recom- mended below would in any event be dispositive of any present representation issue, it will be recommended that the petition for investigation and certification of representatives in Case No. 9-RC-1505 be dismissed. H. Concluding findings as the Company's failure and refusal to bargain As has been found above, the Union, having theretofore been designated by a majority of the employees in the appropriate unit as their bargaining representative, wrote the Company on January 29. 1952, seeking recognition as exclusive bargaining representative. The Company chose to ignore the Union's bargaining request, thereby in effect, it is found, refusing to com- ply with it. The complaint alleges the Respondent illegally refused to bargain with the Union since that date. The Company, on the other hand, seeks to exculpate itself from liability basically upon two grounds. One is that its failure to answer the letter was justified by what it asserts to have been a bona fide doubt concerning the Union's majority. The other is that it was then, and still is, entitled to have the Union's majority status tested in a secret ballot election in accordance with established procedures of the Board rather than by the less re- liable method of what it characterizes as a form of "Gallup Poll." The applicable principle of law is by now well settled. Where an employer acts in good faith and with due recognition of employee rights under the Act, he may, without subjecting himself to an infraction of Section 8 (a) (5), challenge a union 's asserted majority and require proof of such majority by an election or other appropriate method. But a challenge to a ma- jority does not shield an employer if it is primarily motivated not by a genuine doubt as to the existence of the majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to seek to undercut the union's support. The Act does not require that a union's majority status be established at a Board-conducted election as a predicate to a finding of an unlawful refusal to bargain. While under other circumstances a secretballot election may provide a method more reliable than a card count for determining employees ' true representative desires , an employer may not insist upon that as the only method where his purpose is to dissipate rather than to reflect union support, and particularly so where he has by his own unfair labor practices made it impossible for an election to mirror the employees ' free, uncoerced , and untrammeled wishes. 38 i8See, e. g., Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C.A., D.C.). certiorari denied 341 U. S 914; N. L R. B. v. Van Kleeck & Co., Inc., 189 F. 2d 516 (C. A. 2); N. L. R. B. v. Con- solidated Machine Tool Co., 163 F. 2d 376 (C. A. 2); M. H. Davidson Co., 94 NLRB 142; Louisville Container Corporation, 99 NLRB 81. ARMCO DRAINAGE & METAL PRODUCTS, INC. 755 In assessing motive, objective conduct is a more trustworthy measure than declarations of subjective intent. The Company's insistence now that it considered a representation election the only fair method of testing the Union's claim of majority status is largely discredited by its expressed willingness to recognize the Independent, a labor organization it favored, upon a card-showing without an election. In the case of the Union, a labor organization it opposed, the Company did not, at least until the Board-called joint conference almost a month later, attempt to cooperate with the Union toprovidean expeditious means for resolving its asserted doubt of the Union's majority. 39 Instead, the Company almost immediately after the receipt of the bargaining demand declared to employees through the Shop Committee its opposition to the Union, and embarked upon an illegal course of conduct which revealed with unmistakeable clarity that the question with which it was really concerned was not whether the Union in fact had a majority at the time, but rather how that majority, if it existed, could be subverted or destroyed. The Company utilized the period between the bargaining demand and the joint con- ference to engage in activities obviously directed at undermining the Union's strength. Among other things, it threatened employees, if the Union became bargaining agent, with plant closure, stoppage of plant expansion, withdrawal of overtime work, and the loss of back pay that would otherwise be payable to them upon approval of the then pending WSB petition; it aided, assisted, and cooperated with a group of local business men in conducting a campaign against the Union, paralleling that of the Company; and it began to foster and promote em- ployee organization into an independent labor organization for the evident purpose of heading off the Union. Under other circumstances, the Company's execution of a consent-election agreement at the February 26 joint conference might have provided some support for the Company's assertion of good faith. But that assertion is deprived of force by what went be- fore. And what went after removes all doubt. For the Company did not cease its illegal ac- tivities directed against the Union with the execution of the election agreement. Its signature to the agreement was scarcely dry when it sent to all employees its coercive letter of February 29 regarding their back pay. It continued thereafter up to the time of the election to engage in other illegal conduct found above, and particularly to support and assist the Inde- pendent which in the meantime had appeared on the scene to compete with the Union for em- ployee support. The spirit of wholesome cooperation that is implicit in a bona fide doubt does not normally find expression in illegal activities such as were engaged in by the Company almost from the very day it received the Union's demand. The Company's objective actions clearly belie its pretense of subjective good faith. Despite the Company's protestations to the contrary, I am fully satisfied on all the record that its real reason for failing to reply to the Union's bargaining request of January 29, 1952, was to gain time within which to undermine the Union's support. It is so found. That the Union was willing after its bargaining demand to file a representation petition, as in fact it did, and that it later entered into a consent-election agreement does not preclude a finding of an earlier refusal to bargain or a remedial order based thereon. Joy Silk Mills v. N. L. R. B., supra; Peoples Motor Express, Inc., 74 NLRB 1597, enfd. 165 F. 2d 903 (C. A. 4); Louisville Container Corporation, supra; M. H. Davidson Co., supra. Nor, par- ticularly in view of the unfair labor practices here found to have been engaged in by the Company, is it a bar to such a finding and order that the Union lost the election held on March 18, 1952. Joy Silk Mills v. N. L. R. B., supra; D. H. Holmes Company, 81 NLRB 753, enfd. as modified 179 F. 2d 876 (C. A. 5); Peoples Motor Express, Inc., supra; M. H. Davidson Co., supr As has been found above, the election was invali , and must therefore regard as a nullity. But beyond that, it must be presumed, and it is here found, that since the Union enjoyed a majority on January 30, 1952, when the bargaining request was received by the Company, any subsequent defection from the Union was attributable to the Company's inter- vening unfair labor practices. Upon the record as a whole, it is concluded and found that on January 30, 1952, and there- after, the Company unjustifiably refused to recognize and bargain with the Union as the ex- 39 Nor, under the circumstances of this case, may the Respondent excuse its failure to respond to the Union's bargaining demand by pointing to the fact that the union did not submit with it proof of its majority designation. The Respondent is scarcely in a position now to complain that no proof was offered when it failed to request the submission of such proof. Moreover, by immediately proceeding to engage in an antiunion course of conduct, it dis- closed beyond mistake that it would not have engaged in bargaining at the time even if such proof had been presented. See Everett Van Kleeck & Co. Inc., 88 NLRB 785. enfd. 189 F. 2d 516 (C. A. 2) N. L. R. B. v. Crown Can Co., 138 F. 2d 253, 266 (C. A. 8). 322615 0 - 54 - 49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clusive representative of its employees in the appropriate unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. 4° IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I. above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Company has engaged in unfair labor practices violative of Section 8 (a) (1), (2), and (5) of the Act. I shall recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Company has interfered with, but not dominated, the formation of the Independent, and has assisted and contributed support to it. It will be recom- mended that, in addition to ceasing and desisting from such conduct, the Respondent Company refrain from recognizing or dealing with the Independent, unless and until it shall have first been certified by the Board as the collective-bargaining representative of the Company's employees. It has been found that the Respondent Company has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. It will be recommended that the Company bargain collectively with the Union and embody any under- standing reached in a signed agreement. The violations of the Act the Company committed are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Company's conduct In the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order therefore to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize the industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, It will be recommended that the Company cease and desist from infringing in any manner upon employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing finds of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, and Armco Employees Independent Federation, Inc., are labor organiza- tions within the meaning of Section 2 (5) of the Act. 40 One final observation should be made. Even if the record had warranted the conclusion, contended for by the Company, that it had a bona fide doubt of the Union's majority when it received the bargaining demand, effectuation of the policies of the Act would still require a remedial order directing the Company to bargain with the Union upon request, in order prop- erly to remedy the Respondent's other unfair labor practices here found. The record estab- lishes that the Union had a clear majority when the Company began its course of unfair labor practices directed at destroying that majority. To the extent the consent election revealed a loss of union support thereafter, such loss has been found attributable to the Company's un- fair labor practices. It is axiomatic that an employer may not by his own misconduct destroy a union's majority and then claim to be relieved of his duty to bargain with it on the ground that it no longer is a statutory representative. Medo Photo Corp. v. N L. R. B., 321 U. S. 687. An order which fails to guarantee to the Union restoration to the status which it would have enjoyed but for the Company's unfair labor practices, would leave the Company to profit from its own wrong. Judicial authority for this view is to be found in Holmes Co. v. N. L. R. B., 179 F. 2d 876 (C. A. 5), modifying and enforcing 81 NLRB 753, and in Texarkana Bus Co v. N. L. R. B. 119 F. 2d 480, 484-50 (C. A. 8). modifying and enforcing 26 NLRB 582. See also Peoples Motor Express, Inc., 74 NLRB 1597,1611, enfd. Peoples Motor Express v. N. L R. B., 165 F. 2d 903 (C. A. 4). B. F. GOODRICH COMPANY 757 2. All production and maintenance employees at the Respondent Company's Washington Court House plant, including shop clerks, janitors, and watchmen, but excluding all office employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. On January 30, 1952, the Union was, and at all times since has been, the exclusive representative of all employees in the appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By refusing, on and after January 30, 1952, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, the Respondent Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with the formation of and assisting and contributing support to the Independent, the Respondent Company has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (2) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The Respondent Company has not since on or about September 21, 1952, as alleged in the complaint, dominated, interfered with the formation and administration of, and contributed financial and other support to the Shop Committee. [Recommendations omitted from publication.] B. F. GOODRICH COMPANY and INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AUTOMOTIVE, PETROLEUM AND ALLIED INDUSTRIES OF KANSAS CITY AND VICINITY, LOCAL UNION 552, A.F.L. Case No. 17-CA-521. August 13, 1953 DECISION AND ORDER On June 15, 1953, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor prac- tices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a sup- porting brief. The Respondent filed a brief in support of the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer. [The Board dismissed the complaint.] 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson. 106 NLRB No. 123.