Aeronca Manufacturing Corp.

AERONCA MANUFACTURING CORPORATION 461 Aeronca Manufacturing Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-AFL-CIO). Case No. 9-RC-2586. July 3,1957 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election issued on Decem- ber 28, 1955,1 an election by secret ballot was conducted on January 18, 1956, under the direction and supervision of the Regional Director for the Ninth Region, among the employees in the unit found ap- propriate by the Board. Following the election, the parties were furnished a tally of ballots. The tally shows that of approximately 1,200 eligible voters, 1,176 cast valid ballots, of which 457 were cast for the Petitioner, and 705 were cast for the Intervenor, Aeronca Inde- pendent Union. On January 23, 1956, the Petitioner filed timely objections to con- duct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of the objections and, on March 28, 1956, issued and served upon the parties his report on objections to election, in which he recommended that the objections be overruled and that an ap- propriate certification of representatives issue. The Petitioner filed exceptions to the Regional Director's report on April 9, 1956, and a supporting brief on April 19, 1956. On May 21, 1956, the Board, having found that the Petitioner's objections and exceptions appear to raise substantial and material issues with respect to the conduct of the election which could best be resolved by a hearing, issued an order directing that a hearing be held thereon. On June 26 to 30, inclusive, 1956, a hearing was held before Herbert Silberman, hearing officer. On October 25, 1956, the hearing officer issued and caused to be served on the parties his report and recom- mendations on objections to election, recommending that the Peti- tioner's objections be overruled and that an appropriate certification of representatives issue, as set forth in the copy of the report attached hereto. Thereafter, the Petitioner filed exceptions to hearing officer's report and recommendations on objections to election, proposed findings of fact and conclusions of law, and a supporting brief, requests for 1 114 NLRB 1516. 118 NLRB No. 57. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oral argument,2 and other communications; 9 the Employer filed an opposition to Petitioner's exceptions and Employer's exception, and a brief; and the Intervenor filed a statement in opposition to Peti- tioner's exceptions to hearing officer's report and recommendations on objections to election, and a brief. The hearing officer's rulings made at the hearing are 'free from prejudicial error and are hereby affirmed.' The Board has considered the hearing officer's report, the exceptions, briefs, oppositions, state- ments, and the entire record in this case, and finds merit in the Peti- tioner's exceptions for the reasons hereinafter set forth. A. The hearing officer's findings The report sets forth in considerable detail the Employer's acts and statements which the Petitioner claims constituted interference with the election, finds that most of them occurred as alleged by the Peti- tioner, but finds further that they do not, separately or cumulatively, warrant setting aside the election. The report disposes of the various incidents or statements on one or more of the following grounds : They were within the Employer's area of permissible campaigning and expressions of preference ; the economic disadvantages which they predicted were based on what the Petitioner would do, not on threatened Employer reprisals; they were engaged in by a small proportion of the supervisors or by supervisors below the managerial level; they were directed at relatively few of the 1,200 employees in the unit; they were not established as having occurred during the crucial period; certain testimony was not credible; or the statements were not coercive, did not contain promises of benefit, were insignifi- cant, or were otherwise unobjectionable. B. interference with the election In our opinion, the incidents which the hearing officer found to have occurred clearly established that the Employer interfered with 2 As the exceptions , briefs , statements , and other documents filed herein , in our opinion, adequately present the issues and the positions of the parties, the Petitioner 's requests for oral argument are hereby denied. 3 On December 10 and 14 , 1956 , the Petitioner sent letters to the Board commenting upon the possible effect on the instant case of recent decisions in certain Board cases. As these letters were not timely filed for consideration as part of the Board's formal record, they are hereby rejected, and the arguments contained therein will be disregarded. 6 During the hearing , the Regional Director's representative made available to the Em- ployer affidavits which had been obtained in the course of the investigation in this case. The Employer was permitted to introduce some of these affidavits into evidence for im- peachment purposes . The Petitioner objected, at the hearing and in its brief , and main- tained that the affidavits should have been treated as confidential documents for the exclusive use of the Board. The propriety of the Board' s use of such affidavits for impeach- ment purposes is well established (N. L. R. B. v. Quest-Shon Mark Brassiere Co., Inc., 185 F. 2d 285, 289 (C. A. 2) ; Seaboard Terminal and Refrigeration Company, 114 NLRB 754 ; Bridgeport Castings Company, 109 NLRB 749, 752). As the Board could have used the affidavits for this purpose, it was not prejudicial error for the Regional Director's repre- sentative to permit their use by another party to the proceeding for the same purpose. AERONCA MANUFACTURING CORPORATION 463 the election by making coercive remarks and promises of benefit, by campaigning intensively against the Petitioner and for the Intervenor, and by the sum total of its conduct, which created an atmosphere of fear in the plant and deprived the employees of their freedom of choice. The Employer's business consists primarily of the manufacture of airplane parts for Boeing Aircraft Company, which in turn produces airplanes for the United States Air Force. The contracts with Boeing establish production schedules, and are subject to cancellation if these schedules are not maintained. During the critical preelection period,' various employer representa- tives, on frequent occasions, told employees that selection of the Petitioner would result in Boeing and other customers withdrawing orders, which would cause a curtailment of production and of jobs. Statements to this effect were made by Lawler, president of the Employer, as well as by various foremen. They were made in speeches, letters, and conversations. In fact, the hearing officer refers to such statements as the Employer's "principal propaganda theme." For example, one of the Employer's letters to the employees, signed by Lawler, stated in part: Do you think our customers and our government are going to stand around and wait for vital plane parts, if a bunch of CIO toughs tie up our plant with a reign of terror so they can collect dues from Aeronca men and women? Lawler told employee Adkins that if the Petitioner "gets in here we will lose an awful lot of orders. . . . Boeing would pull the orders, because they wouldn't stand for trouble, their work would be held up." He told employee Suitt that Boeing was "concerned about our production schedules and our labor relationship," and indicated that "Boeing would transfer half their contracts to other companies in order to insure an alternate source for parts if the Employer were to have labor troubles." Other officials and supervisors made similar statements. Employee Mullins was summoned to the office of Per- sonnel Director Moore, who presented his anti-Petitioner views at length, and stated that Lawler was on his way to Boeing to find out if Boeing was going to change the contracts, and "was looking mighty worried when he left." Foreman Anthony told a departmental meeting that "if the CIO became the bargaining representative Boeing Aircraft Company would transfer 40 percent of their orders with the Employer elsewhere in order to insure an alternate source for parts in the event of a strike at Aeronca and that would mean a 40 percent layoff by the Employer." Employee Eaton was told by his supervisor, 5 The critical period in this case ran from December 28, 1955, when the Decision and Direction of Election issued, to January 18 , 1956, the date of the election . F. W. Wool- worth Co., 109 NLRB 1446. 464 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD Hamilton, "if the election was won by the CIO that half of the contracts that we had at that time would be pulled." Employee Hall was told by his supervisor, Lee, that "if the CIO won the election the Employer would lose some of its contracts." The chief of the Air Force inspectors stationed at the plant told some employees that if the Petitioner won the election he had orders to pull contracts.' Some of these statements indicated that a loss of orders and of jobs would result if the Petitioner were to win the election; others were conditioned upon the Petitioner causing labor strife, but these were accompanied by constant references to the probability of strikes if the Petitioner were to become the bargaining representative. Moreover, it is significant that the Employer at no time informed its employees of any statements or communications from Boeing or other customers on which its warnings of withdrawal of orders were based, so that, as far as the employees were concerned, the references to the loss of jobs following a Petitioner victory emanated from the Employer. Under the circumstances, we are convinced that the Em- ployer was making its constant references to the withdrawal of orders for the purpose of implanting in the employees a fear that a loss of jobs would inevitably follow a Petitioner victory.' We therefore conclude and find that the statements in question clearly contained threats to the employees of loss of jobs, bolstered by the Employer's references to Boeing and other customers With- drawing orders, which the employees had to accept at face value. As already found, the statements were made by a number of super- visors 8 up to and including the president of the Company, and were The hearing officer found no significance in this as (1) the chief inspector was an employee of the Air Force, not of the Employer, and (2) the remarks were made to only 4 employees , 2 of whom had already voted , shortly before the polls closed , and there was no evidence that they were communicated to other employees . As to ( 1), the Board, where a proper election atmosphere is in issue , will consider conduct affecting this atmos- phere whether or not it is attributable to the parties. ( Poinsett Lumber and Manufactur- ing Company, 116 NLRB 1732 ; The Falmouth Company, 114 NLRB 896 ; Southdown Sugars, 108 NLRB 114.) As to (2), the chief inspector's remarks cannot be viewed in isolation , but were part of what the report refers to as "the many predictions and rumors of possible loss of employment should the Petitioner be certified which had been circulat- ing among the employees during the preelection period." P Cf. Zeller Corporation, 115 NLRB 762, where the employer enclosed with his letter to the employees it letter from the customer in question so the employees could make their own evaluation of the customer's statements . In that case, moreover , the employer's remarks were found not to constitute a threat to the employees' jobs. 8 The hearing officer found that some of the Employer's statements referred to above were permissible on the ground , among others, that they were made by foremen and not by "higher managerial representatives." As we stated recently, however, in Hardware Engineering Co., 117 NLRB 896: "With respect to the foreman, it is not controlling that his statement may not have been expressly authorized or subsequently ratified by higher management , since at the time lie made the statement , lie was an admitted supervisory employee for whose conduct an employer is normally responsible." We likewise find no merit in the hearing officer's finding that certain conduct was per- missible because the employees were not actually intimidated thereby, but, on occasion, debated with their supervisors the relative merits of the two unions. As we stated in Internationa7 Brotherhood of Teamsters, etc., Local No. 659 (Ready Mixed Concrete Com- pany), 117 NLRB 1266, "It is well-settled that the Act does not require proof that coercive conduct had its desired effect." AERONCA MANUFACTURING CORPORATION 465 made so frequently that, as the record shows, their effect was felt throughout the plant. Under these circumstances, we find that the Employer's numerous statements that selecting the Petitioner would result in a withdrawal of orders and a loss of jobs were coercive. Furthermore, these coercive statements were made in the course of the Employer's intensive election campaign, during which the em- ployees were subjected to a constant barrage of propaganda in the form of speeches, letters, department meetings, and group. and indi- vidual discussions, all emphasizing, as the report describes it, "the Employer's thesis that the employees' best interests would be served by preserving the status quo and that' all they could anticipate from a change of bargaining representative was strikes and economic suf- fering." This campaign propaganda contained a great many vilify- ing references to the Petitioner, its mercenary leadership, and its frequent violent strikes. The following are examples of the Employer's derogatory references to the Petitioner during this period : Strike-happy outfit. CIO troublemakers. CIO toughs. CIO salesmen . . . hate the truth. I [Lawler] cannot see how the CIO could do anything but threaten our future and hurt us all. If we lose our customers, we lose our jobs. We who have jobs at Aeronca know that, but the CIO organizers who came from out- side to cause us trouble don't seem to know it. This could be very real threat to our job security. If the CIO muscle men move in on us, and if trouble happens as it has in so many other places, we stand a good chance of losing some of these orders. If we lose orders, we lose jobs. In contrast, the Employer at the same time was lauding the Inter- venor for its assistance when the Employer was in financial difficulty in 1949, its record of 10 years without a strike, its ability to obtain a wage increase for the employees every year, and the "one big, happy family" relationship which existed with the Intervenor representing the employees. In its numerous expressions of preference between the two competing unions, the Employer never made reference to the employees' "no-union" choice. In addition to describing the Intervenor's help when the Employer was in financial difficulty, Lawler's speeches reminded employees that he came to the plant in 1949 when he "had the difficult job of trying to bring back to life an almost dead Aeronca," and how well he had succeeded in that job. In some of his conversations with employees, Lawler indicated that he would leave the plant if the Petitioner became the bargaining representative of the employees. 450553--58-vol. 11831 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Petitioner that these remarks of Lawler about leaving should be read in the context of his statements about saving the Company from economic disaster. During this period, there were also numerous conversations between supervisors and employees in which the supervisors expressed their strong anti-Petitioner' and pro-Intervenor views. In the course of these conversations, some of the supervisors made remarks to em- ployees which were coercive or contained promises of benefit. For example, employee Eaton was told by his supervisor, Hamilton, that "The Company would deal with an Independent Union better than they would with the CIO"; employee Hall was told by his supervisor, Lee that "it would be better to continue the Independent as bargaining agent in order to avoid loss of employee privileges "; and employee Lower , was told by his supervisor , Richter, that "in case the CIO comes in they will ask fora lot of things and the Company will tighten up on a lot' of things."' Furthermore, several supervisors wore Intervenor buttons in the plant. While, as the hearing officer points out, very few did so, and they wore them for a short time only, nevertheless it was long enough to be observed by a number of employees in various departments. The hearing officer refers to a number of cases in which employers were given considerable latitude by the Board in apprising employees of their preferences with regard to unions seeking representative status. We are satisfied that in the present case, the Employer has exceeded those broad boundaries of permissible conduct. It is well established that .the Act gives employees the right to an "untrammeled and free choice" 1e of a bargaining representative; the Board has held, in cases involving objections to an election, that each case must be decided on its own unique combination of facts ; 11 the courts have recognized the Board's "wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees"; 12 and the Board and the courts have held that the Board may set aside an election because of speeches which are not coercive,13 conduct 9 We do not agree with the hearing officer that this conduct can be excused on the ground that it did not directly reach all or nearly all the employees. Just as the remarks about Boeing withdrawing orders permeated the entire plant , so also, we find, did its re- peated expressions of preference for the Intervenor, the statements about the friendly relations which had existed with the Intervenor being imperiled if the Petitioner were selected , and the indications that Lawler, who had saved the plant from economic disaster, would leave if the Petitioner won. 1o Dallas City Packing Company, 116 NLRB 1609; Lloyd A. Fry Roofing Company, Incorporated, 116 NLRB 1360; Bata Shoe Company, Inc., 116 NLRB 1239. 11 The Liberal Market, 108 NLRB 1481, 1486. 12 N. L. R. B. v. National Truck Rental Co., 239 F . 2d 422 (C. A., D. C., Oct. 18, 1956), quoting N. L. R. B. V. National Container Corp., 211 F. 2d 525 ( C. A. 2), which quoted from N. L. R. B. v. A. J. Tower Co., 329 U. S. 324, 330. 13 Foreman R Clark, Inc. v. N. L. R. B., 215 F. 2d 396. (C. A. 9), cert. denied 348 U. S. 887. AERONCA MANUFACTURING CORPORATION 467 which does not constitute unfair labor practices'14 or coercive remarks even if made to relatively few employees,15 or even if they are veiled,l6 hinted,17 or merely implied,18 if, in the exercise of the Board's discre- tion, such conduct interfered with the employees' freedom of choice.' We find, on the basis of the entire record, that the Employer, by its remarks about the withdrawal of orders by Boeing and other cus- tomers, and the resulting loss of jobs, by its vilification of the Peti- tioner in contrast with its praise of the Intervenor, by the coercive remarks and promises of benefit made by supervisors, and by the totality of its election campaign conduct, generated "an atmosphere of fear" 20 among its employees which deprived them of their freedom of choice. [The Board set aside the election held on January 18, 1956.], [Text of Direction of Election omitted from publication.]. CHAIRMAN LEEDOM and MEMBER RODGERS, dissenting : We do not agree with our colleagues that there is any foundation,, in: fact or in law, for upsetting the results of the election which has been held among the 1,200 employees in the unit here involved, and which resulted in a decisive victory for the Intervenor. The hearing officer's report contains an exhaustive discussion of the evidence in this case, as well as a painstaking analysis of the pertinent Board' and court decisions, and concludes that the incidents in question did not constitute improper interference with the election whether con- sidered separately or cumulatively. We agree with the hearing officer, and would adopt his findings, conclusions, and recommendations. As his attached report is so detailed and complete, we shall advert only briefly to the reasons why we disagree with the result reached by the majority. The majority's determination that the Employer's preelection cam- paign conduct requires that a new election be directed is based upon 14 N. L. R . B. v. Bar-Brook Manufacturing Co., Inc., 220 F . 2d 832 (C. A. 5). - 15 Lloyd A. Fry Roofing Company, Incorporated, 116 NLRB 1300. 16 The Humko Co., Inc., 117 NLRB 825. 11 Norris-Thermador Corporation , 117 NLRB 1340. 12 Paramount Cap Manufacturing Company, 116 NLRB 993, 1001. 12 As the Board stated in 13 eta Shoe Company, supra, quoting from The Gummed Prod- nets Company, 112 NLRB 1092 , 1094, it "will set aside an election when `the challenged propaganda has lowered the standards of campaigning to the point where it may be said that the uninhibited desires of the employees cannot be determined in an election.' " p Poinsett Lumber and Manufacturing Company, 116 NLRB 1732, 1739 . Cf. The Fal- mouth Company, 114 NLRB 896 , where threats had been made by local businessmen and two alleged supervisors . The Board there stated that it was unnecessary to determine whether the employer and the businessmen had acted in concert, or whether the employer was responsible for the activity of the two alleged supervisors, in view of the fact that a "fear of economic loss so permeated the atmosphere surrounding the election as to render impossible the rational , uncoerced selection of a bargaining representative contemplated by the Act." 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) remarks which our colleagues deem coercive, and (2) the totality of the Employer's conduct. (1) The first ground rests on strained interpretations of remarks made by a small proportion of the supervisors in the plant. These remarks, on their face, consist merely of expressions of opinion or predictions as to the likely effect of a Petitioner victory based upon the Petitioner's conduct in other plants, and are therefore clearly pro- tected by Section 8 (c). Primarily, the remarks on which the ma- jority opinion relies were to the effect that Boeing, the Employer's prime contractor, would withdraw some of its contracts if the Pe- titioner became the employees' bargaining agent. The Employer, under its contracts with Boeing, made airplane parts which Boeing, in turn, utilized in the production of airplanes for the United States Air Force. The Employer was required by its contracts with Boeing to maintain rigid production schedules, in unification with the Boeing schedules, so that all necessary parts for the Boeing airplanes would be available when required. After 10 years of harmonious strike-free relations with the Inter- venor, the Employer was justified in believing it likely that this rela- tionship would continue if the Intervenor were again selected by the employees. In contrast, the Employer had factual evidence, which it distributed to the employees, of bitter, violent, and costly strikes in which the Petitioner had engaged at other plants. Accordingly, the Employer pointed out to the employees, as it was clearly privileged by Section 8 (c) to do, the greater likelihood of industrial peace with the Intervenor representing the employees. The remarks about the Boeing withdrawal of contracts were couched in terms of prediction. The Employer's reference was to what might eventuate should the Petitioner become the bargaining agent and cause strikes, which would disrupt the Employer's production schedules. In such circumstances, the Employer indicated that Boeing could cancel its contracts and could thereby bring about a reduction in employment.21 The major- ity culls out of these remarks 1 or 2 which were not expressly condi- tioned upon the occurrence of labor strife, and imports into all of them a meaning-completely at variance with their content-that the Em- ployer itself was threatening to cut production and reduce employ- ment if the Petitioner won the election 22 2' The majority opinion points to the fact that the Employer did not, as in Zeller Ca.- poration, 115 NLRB 762, give the employees evidence to support its predictions about the withdrawal of Boeing orders. These predictions were clearly justified by the production schedules required by the contract. The majority 's reliance on cases like 11 'orris-Thermalor Corporation, 117 NLRB 1340, is unfounded . In that case , the employer " hinted" that he would terminate certain benefits if the union won the election . That is clearly distinguishable from the state- ments herein that a third party would cancel its contract with the Employer if the Petitioner won the election and then caused work stoppages , which would prevent com- pliance with the contract schedules. AERONCA MANUFACTURING CORPORATION 469 (2) The second ground on which our colleagues rely is equally with- out merit. The majority apparently concludes that certain incidents, each of which is permissible under Section 8 (c), nevertheless add up to unlawful interference with an election. The total number of inci- dents seems small when measured against the 1,200 employees and more than 88 supervisors. The majority nevertheless seems to argue, from the number of incidents, that there was unlawful interference with the election. But as none of these incidents actually contained a threat or promise of benefit, any number of them, legally as well as mathematically, add up to nothing. Accordingly, like the hearing officer, we would find that the Em- ployer's conduct did not preclude the employees from a free expression of their choice, protected by the secrecy of the ballot box. As the em- ployees cast their ballots decisively for the Intervenor, the Intervenor should be certified as their bargaining agent. HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE Following the initial hearing in this matter, on December 28, 1955, the Board issued its Decision, 114 NLRB 1516, directing an election among the employees of the Employer in a described appropriate unit to determine whether they desire to be represented for purposes of collective bargaining by the Petitioner, by the Intervenor, or by neither. Pursuant thereto an election by secret ballot was conducted on January 18, 1956. The tally of ballots shows: Approximate number of eligible voters----------------------- 1, 200 Void ballots----------------------------------------------- 3 Votes cast for Petitioner------------------------------------ 457 Votes cast for Intervenor----------------------------------- 705 Votes cast against participating labor organizations ------------ 14 Valid votes counted---------------------------------------- 1,176 Challenged ballots----------------------------------------- 16 Valid votes counted plus challenged ballots------------------- 1, 192 On January 23, 1956, the Petitioner filed timely objections to conduct affecting the results of the election. The objections are as follows: 1. Campaign tactics and propaganda employed by the Intervenor herein and the Employer herein lowered the standards of campaigning to the point that the uninhibited desires of the employees could not be determined in said election. 2. That during said election campaign and after the Direction of Election said Employer gave raises to certain of its employees for the purpose of influenc- ing their votes for the Intervenor. 3. On or about Jan. 13, 1956 the Chief Inspector for the Air Corps stated in the plant to employees that if the CIO won the election the company would lose 40% of its contracts. He further stated that the Air Corps would pull 40% of said contracts and that he would have to pay off part of his inspectors if the CIO won the election. He is assigned to the plant by the Air Corps. 4. That the Employer through its agent stated that if the CIO won the election Boeing would pull its contracts. 5. That the Employer during the election campaign and after the Direction of Election through its agents held meetings of small groups of employees on company time and property and contacted single employees for the purpose of telling them to vote against the CIO and in favor of the Intervenor, and so advised them. 6. That Supervisors of the Employer wore campaign buttons of the Intervenor. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. That the Employer on the day of the election permitted the Intervenor to ;place its "vote for Independent signs" on the company property along a company .fence, use of which was not offered or permitted to the petitioner. 8. That the Employer furnished facilities and employees to the Intervenor ,for the publication of its propaganda. 9. The Employer during the election campaign and after the Direction of Election through its agents said that if the CIO won the election the company `would turn its business over to its competitors and go out of business and that the new construction now in process would be stopped. 10. That the Employer permitted the free run of the plant for electioneering by the Intervenor but denied the same right to the petitioner. 11. That the Employer distributed publications to its employees during the election campaign and after the direction of election urging its employees to vote for the Intervenor and against the petitioner. 12. That the Employer threatened loss of employment if the employees voted for the petitioner. 13. That the election did not reflect the free choice of the employees in that the company and the Intervenor released and published false and misleading information as to the effect upon the company's business if the petitioner won the election. 14. And for other misconduct and misrepresentations on the part of the Employer and Intervenor which interfered with said election in violation of the Act. Thereupon the Regional Director conducted an investigation and, on March 28, 1956, issued and served upon the parties a report recommending that the objections be overruled. The Petitioner duly filed exceptions to this report. Upon consideration of the matter, the Board on May 21, 1956, issued an order directing a hearing to resolve the issues raised by the Petitioner's objections and exceptions. Pursuant to said order and upon due notice to all parties a hearing was held at Middletown, Ohio, on June 26 through 30, 1956, before the hearing officer, duly designated by the Chief Trial Examiner. All parties to this proceeding appeared and were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to engage in oral argument, and to submit briefs to the hearing officer. Briefs were duly filed on behalf of the Petitioner, the Intervenor, and the Employer which have been carefully considered. Upon the entire record in the case, and from my observation of the deameanor ,of the witnesses who testified before me, I make the following: FINDINGS OF FACT PRELIMINARY STATEMENT In the interest of brevity, discussions of testimony which the hearing officer finds has no probative value because of lack of credibility or materiality will be relegated to Appendix E attached hereto. The Board having issued its Direction of Election on December 28, 1955, and the balloting having taken place 21 days later, on January 18, 1956, only misconduct which occurred during this period can be relied upon as the basis for setting aside the election. M. W. Breman, 115 NLRB 1581; F. W. Woolworth Co., 109 NLRB 1446. Antecedent events, however, may be considered as background evidence to clarify and impart meaning to specific occurrences within the critical period. For this purpose only consideration has been given to evidence of activities antedating the Direction of Election. Since 1946 the Employer has recognized the Intervenor as the statutory representa- tive of the employees in the appropriate unit described in the Board's Decision in this case and has entered into a series of collective-bargaining agreements with that union, the last of which was executed in March 1955. The evidence shows that rela- tions between the contracting parties have been amicable. The Intervenor never called a strike against the Employer and during a period when the Company was in financial distress cooperated with the Employer in solving its economic problems. Understandably, the Employer has opposed the efforts of the Petitioner to replace the Intervenor as the bargaining agent for the Company's employees. All the interested parties campaigned vigorously during the critical preelection period. Petitioner avers that both the Employer and the Intervenor have been guilty of campaign misconduct. However, substantially all the evidence adduced by the Petitioner at the instant hearing in support of its objections is directed against the electioneering activities of the Employer and its agents. AERONCA MANUFACTURING CORPORATION 471 1. Intervenor's campaign literature The only culpable act attributed to the Intervenor by the Petitioner concerns certain handbills and notices distributed to the employees by the former. These were either mailed or passed out by hand. Neither at the hearing nor in its brief did the Petitioner advert to any specific impropriety in the content of the Intervenor's campaign literature. The gist of the Petitioner's objections in this regard, iterated in its brief in support of its exceptions to the Regional Director's report, is that "the Board should find that the activities of the Company and the [Intervenor] against the Petitioner were in the nature of a joint enterprise. If this be true, the [Intervenor's] publications, . . . become equally the publications of the Employer" and so considered exceed the permissible limits of campaign propaganda. In its brief to the hearing officer the Petitioner advances the somewhat different argument that "where a company participates in an election on the side of one of the [competing] unions, it makes that union its agent and is bound by its acts. Clearly the publications of the [Intervenor] were not legitimate election propaganda for the company to have distributed." As to Petitioner's first contention, there is no evidence indicating any concert of action between the Employer and the Intervenor. The fact that each actively opposed the organizational efforts of the Petitioner is not proof of common activity "in the nature of a joint enterprise." Likewise, as to the alternative argument, there is no evidence indicating any agency relationship between the Employer and the Intervenor, and I find no merit in the Petitioner's argument that responsibility for the Intervenor's campaign literature should be imputed to the Employer only by virtue of the congruity of their election objectives. The DeVilbiss Company, 115 NLRB 1164; Morganton Full Fashioned Hosiery Company, 107 NLRB 1534. It is the policy of the Board not to censor or police preelection propaganda unless there was resort to forgery, trickery, or conduct so misleading as to have deprived the employees of the opportunity sensibly to evaluate the utterances. Twentieth Annual Report of the National Labor Relations Board, pp. 62-63. I have read the handbills and notices disseminated by the Intervenor which were introduced in evidence at the hearing' and, whether considered sepa- rately or collectively, I find that they do not exceed the scope of legitimate union campaign activity. Accordingly, I shall recommend that the Petitioner's objections to the preelection conduct of the Intervenor be overruled. 2. Employer's campaign literature The Petitioner strenuously argues that publications disseminated to the employees by the Employer during the preelection period contained express or implied threats of reprisal in the event the Petitioner was successful in the forthcoming election, and promises of benefit for the employees should they reject the Petitioner at the polls. In support of these objections the Petitioner introduced in evidence seven letters together with certain attachments which had been mailed to•the affected employees 2 and a newsletter which was distributed to employees in the plant.' I am attaching to this report as Appendix A copies of most of these exhibits' together with the Petitioner's specific objections to each and the hearing officer's analysis of the objections. Viewing the Employer's preelection literature as a 1 These publications were marked in evidence at the instant hearing as Petitioner's Exhibits 11-A through 11-K and are the identical documents attached to the Regional Director's report on objections to election and marked by the Regional Director as Ex- hibits J through W. 2 These letters which were marked in evidence as Petitioner's Exhibits 2a through 2g are the identical documents attached to the Regional Director's report on objections to election as Exhibits A through G, except that attached to Petitioner's Exhibit 2c (Re- gional Director's Exhibit C) when mailed to the employees was a booklet entitled "Kohler of Kohler News" for April 1955 which was published by the Kohler Company of Wis- consin . This booklet was admitted in evidence at the instant hearing as Petitioner's Exhibit 3. Petitioner's Exhibit 2h. Omitted are a letter to the employees mailed on December 8, 1955, which antedates the direction of election herein, and the newsletter, which is dated January 13, 1956, but as to which the Petitioner has not advanced any specific complaint. The only possible objectionable feature of the newsletter is a clause which reads, "the election will decide the future of all our jobs and our company." Viewed together with the Employer's other campaign literature this statement suggests that should the Petitioner win the election it might call a strike which could result in a permanent reduction in the work force. Such prediction is not considered by the Board to be coercive. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole, it shows the Company's antipathy towards the Petitioner; it suggests that the Petitioner would be unable to fulfill its campaign promises; it predicts loss of employment, other economic detriments, and less friendly relations between manage- ment and the workers should the Petitioner be selected as the employees' bargaining agent; it urges employees to vote against the Petitioner and, by alluding to the benefits the employees already had obtained and the amicable relationship that has existed between the employees and company officials while the Intervenor was acting as their representative, intimates that the employees' best interests lie in continued representation by the Intervenor. The Employer's campaign propaganda contained no direct threats of reprisal or promises of benefit conditioned upon the outcome of the election. The Petitioner, however, construes much of it to bear by implication threats and promises. I cannot concur with the Petitioner's interpretations. It is the Board's usual practice to give "effect to the plain meaning of the words used." F. W. Woolworth Co., 111 NLRB 766, 768 6 This does not mean that in appropriate circumstances threats or promises may not be implied from ambiguous or guarded languge. But it does mean that language, particularly when used as propaganda during union election campaigns, should not be artfully analyzed to the point of distortion so as to torture from it implications not readily apparent to the rank-and-file employees. I find for reasons more fully explicated in Appendix A that the Employer in its campaign literature did not do more than express its views, arguments, and opinions with regard to the pending election. The Petitioner further argues that defamatory descriptions of the Petitioner and its agents contained in the aforesaid publications led the employees to believe that it would be futile to select the Petitioner as their representative because the Employer would never bargain with the Petitioner and lowered the standards of campaigning to an extent that it impaired the ability of the employees to exercise a free choice of representatives at the election. The statements the Petitioner relies upon to support these contentions are: The CIO boys . . . anxious to get their hands on a slice of your pay check. Heaven forbid that these conditions ever happen to use here at Aeronca. They cannot guarantee anything. CIO salesmen know every slick trick in the book. They hate . . . the truth. It is not necessary for a company "to give in to them." Strike-happy outfit. CIO troublemakers don't have to depend upon our customers for their bread and butter. If a bunch of CIO toughs tie up our plant with a reign of terror so they can collect dues from Aeronca men and women. CIO muscle-men. Professional organizers who recently dropped in on us to pick up some easy dues money. Similar statements, however, have been considered by the Board and have been found to be within the area of permissible campaigning. See Bridgeport Moulded Products, Inc., 115 NLRB 1751; The Zeller Corporation, 115 NLRB 762; South- wester Co., 111 NLRB 805, 806; Esquire, Inc., 107 NLRB 1238; General Shoe Cor- poration, 77 NLRB 124, 125. Finally, the Petitioner contends that whenever an employer injects itself into a union election campaign its very participation interferes with the employees' freedom of choice. Unquestionably the Employer here published the literature complained of with the object of inducing its employees to reject the Petitioner at the polls. It has been observed that "slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong displeasure." International Association of Machinists v. N. L. R. B., 311 U. S. 72, 87. It may therefore be assumed that the Company's campaign was highly effective. But the degree of success which the Employer experiences is not the rod by which to measure the propriety of its conduct. An employer is no longer required to remain aloof and to pretend indifference to the outcome while a union it opposes attempts to organize its employees. The Board's early employer-neutrality doctrine has been firmly overruled. N. L. R. B. v. Virginia Electric & Power Company, 314 U. S. 469; N. L. R. B. v. American Tube Bending Co., 134 F. 2d 993 (C. A. 2); N. L. R. B. v. J. L. Brandeis & Sons, 145 F. 2d 556, 564 (C. A. 8). It is now well settled that not only may an employer make known its preference between two unions competing for its employees' allegiance 6 See also Silver Knit Hosiery Mills, Inc., 99 NLRB 422, 425. AERONCA MANUFACTURING CORPORATION 473 but may also seek to persuade the employees to make the selection which the employer favors so long as it does not resort to threats of reprisal , promises of benefit, trickery, or other objectionable conduct. The DeVilbiss Company, 115 NLRB 1164; Sylvania Electric Products, Inc., 106 NLRB 1210; Stewart-Warner Corporation, 102 NLRB 1153. 3. Conduct of Employer's president, John Lawler John Lawler, the Employer's president, plainly advertised his opposition to the Petitioner and, by indicating his satisfaction with the relationship between manage- ment and the employees while the Intervenor was acting as their representative, his preference for that union continuing as bargaining agent. Petitioner adverts to letters which were sent all employees by Lawler, a speech he made in the plant, and interviews he had with individual employees during the preelection period as having exceeded the limits of permissible employer campaign activity. a. Lawler's speech On December 29, 1955, the day the Employer received its copy of the Direction of Election, Lawler made a speech to the employees in which he keynoted the Employer's position with regard thereto. He repeated the theme of his address in a series of letters which were later mailed to the employees. These letters have been considered above. Lawler read his speech from a prepared text, a copy of which is attached hereto as Appendix B. He opened the speech by advising the employees that there would be an election "to decide whether you are going to continue to be represented by your local Independent Union or whether you will be represented by the International CIO Union." Following this he reminded the employees that since 1949, when the Company was struggling through a financial crisis, the Employer had increased wage rates an average of 65 cents per hour, "which is greater than any company in this area and which is greater than those settled on an International level," and that while the Company has kept its promises to the employees, "for people on the outside it is easy to make a lot of promises which can never be fulfilled." He concluded his speech by telling the employees, "Your future and the future of the Company rests in your hands. That is the reason knowing the fine people we have had here through the years that I have the utmost faith in the outcome of the election." Petitioner correctly argues that Lawler's expression of "faith" in the outcome of the election considered together with his failure to mention "no union" as a possible choice at the polls indicated to the employees that he favored the Intervenor. How- ever, since an Employer may advertise his preference among competing unions, this is not objectionable. Vita Food Products, Inc. of Maryland, 116 NLRB 1215. The Petitioner further argues that Lawler, in effect, said to the employees that if the Petitioner were to win the election "the Company's policy on wages will cease, and [the employees'] future and the future of the Company will be imperilled." I agree that Lawler suggested to his audience that a victory for the Petitioner might eventuate in economic injury to the employees and the Company. However, I disagree that he indicated that the Company would initiate action to bring about any such unfortunate consequences. By questioning the contestants' unselfishness, their interest in the employees' personal welfare, and their records at other plants, Lawler implied that the Petitioner, if designated as bargaining agent, would serve to advance its own interests to the detriment of the employees ' welfare. Thus, he predicted in his speech that, rather than the Employer, it would be the Petitioner, if victorious, who would be the cause of any economic harm the employees might suffer. I also do not agree with the Petitioner that the implications to be drawn from Lawler's address are the same as were drawn from the speech described in Scripto, Inc., 103 NLRB 713. For the reasons explicated above in regard to the Employer's campaign literature, I find nothing coercive in Lawler's December 29 speech. b. Lawler's interviews with employees The Petitioner called upon five employees to testify concerning conversations they had with Lawler during the preelection period. It is Petitioner's contention that in the course of these interviews Lawler made threats and promises related to the pending election. I have carefully considered this contention and find it without merit. Attached hereto as Appendix C are my findings in regard to each of the five interviews upon which the Petitioner relies. The Petitioner further contends that, independent of any threats or promises, Lawler's suggestions to the employees during these interviews that they should vote against the Petitioner and for the 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intervenor are reasons enough to set aside the election herein under the theory expressed in Economic Machinery Company, 111 NLRB 947. I find no merit to this argument. Absent circumstances such as were present in the Economic Ma- chinery case, an Employer who talks with individual employees and tries to persuade them to vote in a Board election for the choice he favors has not engaged in conduct which per se justifies setting aside the election. Lawler's conversations with 5 employees out of a unit of 1,200 at the places where they normally work, in and of itself, was not objectionable. Mall Tool Company, 112 NLRB 1313. 4. Activities of Foreman John Wise During the times material herein John Wise was foreman of the paint shop, department 9, which had a complement of 64 employees, 40 on the first shift and 24 on the second shift. Wise worked during the first shift. The Employer expected its foremen to hold occasional meetings with the men they supervised for the purpose of discussing departmental problems and other matters of mutual concern. There was evidence that at three such departmental meetings held between December 28, 1955, and January 18, 1956, questions relating to the pending election were discussed. Wise testified that unlike the other foremen, and in violation of the Company's policy, he did not hold any departmental meetings. Instead he followed the practice of speaking with the employees in his department individually. During the critical preelection period, he spoke with 12 or 15 employees. Wise testified that "the origin of each conversation with each employee was just about the same thing, how he liked his employment there and how he liked me as a foreman, and general likes and dislikes." The Petitioner contends that in four of these conversations, as to which evidence was adduced at the hearing, Wise made threats or promises of benefit which con- stituted interference with the election. Although Wise suggested to these four employees that they vote against the Petitioner, I find that Wise did not implement his recommendations with either threats or promises. In Appendix D attached hereto is a summary of the evidence relating to Wise's interviews and my specific findings in regard thereto. The Petitioner further argues that Wise's private interviews during the preelection period "offends the rule in the Economic Machinery line of cases." Among the cases which have applied the principle of the Economic Machinery Company de- cision, the facts in The Gallaher Drug Company, 115 NLRB 1379, present the closest approximation to the situation under consideration here. In the Gallaher case, 393 ballots were cast in an election held among employees who worked in 27 drugstores composing a multiplant appropriate unit. Gahris, the manager of 1 of the stores, conducted individual interviews with 20 out of the 29 employees under his supervision for the purpose of urging them to reject the Petitioner in the election. (In some of the interviews Gahris limited himself to describing the dis- advantages of having a union.) The Board, citing Economic Machinery Company, Ill NLRB 947, held that this conduct "interfered with a free election, regardless of whether or not his remarks contained any threats of reprisal or promises of benefit." In Economic Machinery Company, the Board reaffirmed the principle that it will presume the results of an election do not represent "the employees' own true wishes" 6 where the employer adopts the technique of having a responsible representative of management interview in comparative privacy substantially all employees in the unit individually or in small groups and urge them to vote in the manner favored by the employer. In The Gallaher Drug Company case, the Board expanded this principle by equating substantially all the employees in one plant of a multiplant unit to substantially all the employees in the entire unit. The evidence concerning Wise's interviews cannot be equated with the facts in the Gallaher case. The significant difference between the 2 cases is that Wise urged only-4 employees to vote against the Petitioner,7 or one-tenth of those he supervised, whereas in the Gallaher case, Manager Gahris interviewed more than two-thirds of the employees subject to his direction. A further difference is that in the Gallaher case the employees supervised by Manager Gahris worked in premises 6 General Shoe Corporation, 77 NLRB 124, 127. 7 Although Wise testified he may have interviewed as many as 15 employees during the preelection period, there is no evidence that he urged any employees other than the four named in Appendix D to vote against the Petitioner. AERONCA MANUFACTURING CORPORATION 475 separate from the premises where the other employees in the unit worked and Gahris was the principal representative of management regularly at the store, while here, Wise was foreman of only one of many departments housed in the Employer's plant 1 and at almost all times his superiors in management's hierarchy were present on the premises.8 The Board is of the view that "the results of a secret ballot . . . should not be lightly set aside" 9 and, therefore, it is only "in the rare extreme case" 10 that it will vacate an election upon the basis of employer conduct which would not amount to interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. Because the Economic Machinery case represents an exception to the Board's general policy it should be sparingly applied as precedent only in situations which parallel its facts or the facts in one of the later cases which the Board specifically held was governed by the same rule. Since the evidence relating to Wise's interviews does not show any systematic attempt by Wise to influence the vote of any sub- stantial number of employees under his supervision and presents a considerably less aggravated situation than was present in the Gallaher Drug case, I find, contrary to the Petitioner, that Wise's interviews did not offend the rule in the Economic Machinery case. See The American Envelope Co., 97 NLRB 1541, 1543. 5. Conduct of General Foreman Claus Richter Claus Richter is general foreman for the night shift at Plant 1, the largest of the Company's three Middletown plants. Four employees testified to events involving Richter which Petitioner contends coercively interfered with the employees' oppor- tunity to exercise a free choice in the election. Richter either denied or offered an exculpatory version of the incidents. Upon the basis of his demeanor and the fact that his testimony in part impressed me as having been contrived to provide a facile explanation for his alleged campaign misconduct, in agreement with the Petitioner, I find that Richter was not a reliable witness. William Woolums testified that on the night of January 11, 1956, as he was leaving the plant together with about a dozen other employees, Richter said to him, after referring to the pending election, that "an Army inspector from Wright-Patterson said that half our contracts would probably be taken away if the CIO got in." I credit this testimony despite Richter's denial," but do not find the foregoing remark g This is significant because the theory of the Economic Machinery rule is that the interviews are conducted tinder such circumstances as "creates an atmosphere which pre- vents the employees from expressing themselves as freely and fully as they otherwise might." Radiant Lamp Corporation, 116 NLRB 40. It is likely that employees are more inhibited in expressing themselves to the principal representative of management regu- larly present in the plant than they are to a supervisor who is near the bottom of man- agement's hierarchy. The evidence shows that the employees interviewed by Wise felt no constraint upon their right to express themselves and engaged in free debate with him. U The Liberal Market, Inc., 108 NLRB 1481, 1482. '° General Shoe Corporation, 77 NLRB 124, 127. "The Employer contends that \Voolums was not a credible witness and in support of this contention, among other things, refers to Woolums' evident animus towards Richter and alleged inconsistencies between his testimony at the hearing and statements con- tained in a prior affidavit which he executed for a field examiner of the National Labor Relations Board. At the hearing Woolunis, after referring to certain notes, fixed the time of a particular departmental meeting as having taken place on January 4, 1956. In his affidavit Woolums said, "the meeting was held fairly close to election time or as the election was approaching. I made a note of the date of the meeting at the time and the matters said in the meeting but I no longer have those notes. \Iy best recollection is that it would be approximately a month before the election was held." Since there is no evidence that at the time he gave his affidavit to the field examiner Woolums was aware of the critical significance of the dates on which events relating to the Petitioner's objections occurred, the 2 weeks' discrepancy between the date of the meeting fixed in his oral testimony and the date of the meeting fixed in his affidavit, particularly because the affidavit also states that the "meeting was held fairly close to election time," was an inconsequential variance. In his affidavit Woolums also stated that the conversation with Lawler was the only conversation lie had with a company representative about the Union. The fact that at the time he executed the affidavit Woolums overlooked the re- mark Richter made to him is understandable. According to Woolums' testimony, the remark was casually made to him as a group of employees was leaving the plant. It may well be that he attached no special significance to the remark because, in general character, it was not unlike the many predictions and rumors of possible loss of employ- 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was coercive. This statement is of the same character as other predictions which were being voiced to the employees that certification of the Petitioner might eventuate u n the loss of business for the Employer. The basis for such prognostications, which :the record shows must have been well known by the employees generally because of :its specific iteration by the Employer and also because of the employees' knowledge of the Company's business, was that as a subcontractor the Employer's orders were :subject to cancellation if it should fail to meet delivery schedules for any reason, zincluding strikes. The Employer and the Intervenor in their campaign propaganda emphasized the alleged propensity of the Petitioner to enforce its contract demands by strikes. Woolums testified that during the weeks immediately preceding the election the employees among themselves discussed the possibility of a strike being called if the Petitioner were to win the election. The remark Richter made to Woolums must be evaluated in this background and so considered does not carry any threatening overtones that the Employer would engage in reprisals against the employees if the Petitioner were to be selected as their representative. Floyd Adkins testified that 2 or 3 weeks before the election Richter began a con- versation with him. According to Adkins, Richter said, "'Adkins, what do you think about this union trying to get in here?' At the time I had on a CIO sweater, so naturally I told him I was for it. He said, `well, if they come in here,' he said, `there's going to be an awful lot of trouble. I understand the first thing they are going to do is ask for a 30 cent raise.' He said, `the Company won't stand for that, they will go out on strike, we will lose orders right and left.' He said, `they will pull them so fast we won't know which way they went. . . I understand that they are going to stop the work on the new building here until after the election, to see how the election comes out.' " Richter remembered the conversation with Adkins. According to Richter, Adkins said "that they should have more money, and I believe I asked him how much more, and he said at least 30 cents an hour. And there was something mentioned about the possibility of a strike if they didn't get it. And I said, `well,' as I recall, I said, `if the thing comes to that, the Company may go 10 cents an hour, but I doubt if they would ever pay a general increase of 30 cents an hour.' " Richter denied having said anything to Adkins about the Company losing orders, or that there would be trouble if the CIO came in or that the Company was going to stop work on the new building which was then in the process of construction. Adkins did not impress me as having been a forthright witness. His testimony not ,only bore the tone of aggressive partisanship but the much greater hesitancy with -which he answered questions on cross-examination than on direct examination in- 'dicated a calculated effort to preserve the effectiveness of the evidence he was of- fering on behalf of the Petitioner rather than to recount the facts exactly as he re- :membered them. I do not credit Adkins' testimony that he was told by Richter that the latter under- stood the Company was going to stop work on the new building until after the elec- tion. Not only was this denied by Richter but the undisputed evidence shows that the construction was not suspended at any time during the preelection period. On the other hand, Adkins' version of the balance of their conversation is more plausible than Richter's. According to Adkins' testimony, what Richter said to him was substantially what he was told by Lawler. Lawler for the most part corroborated Adkins' version of their conversation. It is more likely that Richter was acquainted with Lawler's views and repeated them to Adkins rather than that Richter made the extremely cautious statement he testified he made to Adkins. However, for the same reasons that I have found Lawler's remarks to Adkins were not coercive I find that Richter's statements to Adkins were not coercive. The Petitioner speci- fically argues that Richter's question, "what do you think about the Union trying to get in here" was unlawful interrogation. Apart from the fact that the Board does not usually view a supervisor's casual inquiry as to an employee's view upon the progress of union organization as being coercive, it certainly could not have been in the case of Adkins because Adkins openly advertised his support of the Petitioner by wearing UAW-CIO insignia in the plant. Joseph Lower testified that about 2 weeks before the election he asked Richter whether the latter "knew anything about in case the CIO gets in whether the con- tracts would be pulled." Richter replied that was what he had heard. Richter's recol- lection of this conversation differs from Lower's. However, I credit Lower's version. ment should the Petitioner be certified which had been circulating among the employees during the preelection period. Woolums impressed me as having been a completely honest witness. His manner while testifying was direct and unevasive. Despite his unconcealed interest in this proceeding, I find that Woolums was a credible witness. AERONCA MANUFACTURING CORPORATION 477 Lower further testified that whenever he met Richter in the plant they would exchange a few words. Another time, in a conversation with Richter, the latter said: "He hates to see the CIO come in, because it will really change things." Lower did not fix the time of this conversation. Finally, Lower testified that within 10 days before the election Richter said to him "in case the CIO comes in they will ask for a lot of things and the Company will tighten up on a lot of things." Richter did not deny having made this statement to Lower. It is unnecessary to consider the import of Richter's remark that it will really change things if the CIO came in because the evidence does not establish that it was made after the issuance of the Direction of Election. Richter's confirmation of the rumor that a victory for the Petitioner might result in Boeing canceling orders, in the circumstances herein, was not coercive. F. W. Woolworth, 111 NLRB 766,. 768-769. Finally, Richter's opinion as to the course collective-bargaining negotia- tions might take if the Petitioner became the employees' representative, for reasons, explicated in La Pointe Machine Tool Company, 113 NLRB 171, 173, likewise is, not considered by the Board to be coercive. Buster Back testified that sometime after the Direction of Election issued Richter told him to remove a UAW emblem from his toolbox. In a prior affidavit which. Back gave to a field examiner of the National Labor Relations Board, he fixed the time of this event as "sometime before Thanksgiving, 1955." Richter admitted that he told Back to remove the emblem from his toolbox and placed the incident as having occurred in July or August 1955. Richter further testified that after consulting the Company's personnel office he learned that he should not have di- rected employees to take emblems off their personal property and subsequently apologized to Back for his mistake. This is uncontradicted. I find that the Petitioner has failed to establish that the foregoing incident oc- curred after the issuance of the Direction of Election herein. Furthermore, because- Richter's testimony is uncontradicted that he later apologized to Back for his error in directing him to remove the CIO emblem and there is no evidence that Back ever complied with Richter's direction 12 or was even punished or reprimanded for failing. to do so, the incident even if timely was inconsequential. 6. Activities of Personnel Director Paul Moore Employees Floyd Adkins and Hobert Mullins testified to conversations they had with the Employer's personnel director, Paul Moore. Adkins testified that about 2' weeks before the election he began a conversation with Moore after he had noticed that the latter had been "out all over the shop talking to the guys." According to Adkins, "I said, 'Paul, what are you doing, out drumming up votes for the Inde- pendent Union?' He said, 'Hell, yes,' he said, 'Somebody's got to."' Moore denied the incident. For reasons expressed above I find that Adkins was not a reliable wit- ness. I do not credit Adkins' testimony regarding his conversation with Moore despite my reservations concerning Moore's credibility. Hobert Mullins testified that on January 10, 1956, he had a meeting with Moore in the latter's office which was arranged by Charles Cremeans, the assistant fore- man of the department in which Mullins worked. Earlier that day, according to Mullins, "Cremeans came to me at work and told me that I had quite a bit of influ- ence on the people in the department, and he also stated that, he said, 'Mullins, don't you think if you worked as hard for the Independent Union as you are for the CIO, don't you think we could have a strong Union?"' Mullins replied that "things have been going kind of rough" and that he'd like the employees to be repre- sented by a union which would get them additional benefits. About an hour later Cremeans returned and told Mullins that he had made arrangements for Mullins to speak with Paul Moore.13 Mullins went to Moore's office and the two spoke to- gether for longer than an hour. In the course of their conversation Moore described the Company's financial condition and asserted that the Employer absolutely could not afford to give a wage increase of 30 to 35 cents per hour which the Petitioner presumably would ask for if it became bargaining agent, that there would be labor disputes and that as a result probably "the company would not be working within 4 months." Moore also said, "that Lawler, Mr. John Lawler, was worried about the contracts, and that he was on his way at the moment to Boeing Aircraft to find out if Boeing was going to arrange different situations for their contracts. He also said "In his affidavit Back specifically said that he did not remove the sticker. 1' Crenieans' version of the incident differs somewhat from Mullins'. Because I believe Mullins was the more reliable witness, to the extent that there is conflict between the testimony of Mullins and Cremeans, I credit Mullins. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, `Mr. John Lawler was looking mighty worried when he left.' " Upon the conclu- sion of their conversation, as Mullins was leaving Moore's office, the latter said, "Do you know, Hobert, you could do a lot of good for the people if you would." Moore's version of his conversation with Mullins in part corroborates Mullins, in part amplifies Mullins' version, and in some matters contradicts Mullins. As be- tween the two it is my opinion that Mullins was the more reliable witness. Mullins testified with candor and assurance. He had a clear recollection of the events about which he testified and recounted them without any apparent embellishments. His appearance as a witness was of impressive frankness. On the other hand, I am of the opinion that Moore supplemented his memory of events in issue by interpolating what he probably reasoned he should have said to Mullins rather than limiting his testimony to precisely what he remembered himself as having said. I find, in disagreement with the Petitioner, that neither Moore nor Cremeans made any statements to Mullins which fairly may be construed as containing any threat of reprisal or promise of benefit. However, I find that Cremeans, directly, and Moore, more subtly, suggested to Mullins that he would promote the best interests of his fellow employees by campaigning for the Intervenor instead of for the Petitioner. It might be argued that these suggestions are similar in nature to actual solicitation of union membership by supervisors, which the Board usually finds constitutes unlawful assistance. However, there is a substantial difference in the two situations. Where an employer, through its agents, actively seeks to enroll members into a labor organization which it favors, it is engaged in conduct which furnishes material support for that organization. Here, however, Moore and Cremeans in their efforts to induce Mullins to transfer his sympathies and activities from the Petitioner to the Intervenor used only arguments and expressions of opinion and did not, therefore, exceed the freedom of persuasion which the Act accords employers. 7. Activities of Assistant Foreman Charles Cremeans Employee Walter Reynolds testified that on January 9, 1956, he had the following conversation with Charles Cremeans: Mr. Cremeans asked me what I wanted with the CIO in at Aeronca, when we had a good union as it was. He also gave me orders not to speak to his employees, because he knew that I was for the CIO, and he didn't want the CIO people bunching up together.14 This testimony was not further clarified on the record. Cremeans was assistant foreman for department 9, which is the paint shop. At the time of the described incident Reynolds, who was in the inspection department, department 50, was assigned as an inspector in department 9. Reynolds was super- vised by the foremen for department 50 and not by the paint foremen. Reynolds also. testified that many people knew that he was an active supporter of the Peti- tioner. Assuming that Cremeans attempted-to engage Reynolds in a debate about the relative advantages of the two competing unions, there is no evidence that Cremeans used any threats or caused Reynolds to believe that he might be the subject of any reprisals because of his advocacy of the Petitioner. There may have been several reasons for Cremeans' direction to Reynolds that he avoid speaking to the painters. One possible explanation is that the order was given in the interest of ef- ficiency and discipline. Reynolds, however, attributed a discriminatory motive to the order. It does not appear that Reynolds' explanation of Cremeans' order is based upon anything more than speculation. Reynolds' testimony does not support a finding that Cremeans communicated to Reynolds his purported reason for the order. Accordingly, I find nothing objectionable with Cremeans' direction to Reynolds not to speak to the painters. See Larsen-Hogue Electric Co., 97 NLRB 1405, 1407. Reynolds also testified that 9 or 10 days before the election he saw Cremeans pin a badge indicating support for the Intervenor on another employee, Mrs. Hattix. Cremeans denied he had done so and Mrs. Hattix was not called as a witness. Even were I to credit Reynolds' testimony there are too many innocuous explana- tions for the incident to permit any incriminatory inferences to be drawn from it. Joseph Patterson testified that 2 or 3 days before the election Cremeans pulled pencils out of his pocket and tore the tops, which had UAW-CIO printed thereon, off the pencils. Cremeans denied the occurrence. Patterson is a deaf person. At the hearing counsel submitted their questions to him in writing and Patterson answered orally. Patterson could be understood, although with difficulty. For UAlthough Cremeans gave a different account of the conversation, I credit Reynolds. AERONCA MANUFACTURING CORPORATION 479 these reasons his examination both on direct and cross was not extensive and no genuine effort was made to obtain from him any full description of the events about which he testified or otherwise to test his credibility . In the circumstance, I can- not give any greater weight to Patterson's testimony than to Cremeans' denials. Hence, I do no credit the foregoing testimony by Patterson. 8. Activities of Assistant Foreman Seevers Employee Otho Wisman testified that about a week before the election he had the following conversation with William Seevers: I told [Seevers] I didn't see any use of an election, or something like that, and he said, well, the bunch of CIO was just a bunch of commies, to his estimations; he had been there fourteen years and he had got along without them, he didn't see why the people couldn't get along without them now. This was not denied . The Petitioner argues that Seevers' statement was coercive and defamatory. I do not find that the statement was coercive. Although Seevers' reference to the Petitioner was disparaging, vilification of a labor organization does not constitute a ground for setting aside an election. 9. Activities of Foremen Webster and Duke Employee William H. Hood who works on the first shift was temporarily transferred to the second shift for a period of about 2 weeks beginning on January 3, 1956. His foreman on the first shift was William Webster and on the second shift was David Duke. According to Hood, a couple of days before he went on the second shift he had a conversation with Webster during which the latter asked Hood what he thought about the coming election and how he was going to vote and told Hood that "if the CIO did get in, we would lose contracts." Hood further testified that on another occasion before he was transferred to the second shift, Webster came over to him and said he knew only nine people who would vote for the CIO. Hood replied that he himself knew more than nine people.15 On cross- examination Hood testified that the latter incident occurred while he was working on the second shift. When reminded of his testimony on direct examination Hood explained he might have been mistaken and that the conversation might have oc- curred either while he was working on the first or on the second shift . As to his first conversation with Webster, Hood testified on cross-examination that it could have taken place as long as week before the second conversation. When it is re- called that the Board's Decision and the Direction of Election herein was issued on Wednesday, December 28, 1955, and thereafter Hood worked only 2 more days on the first shift before he was transferred to the second shift, it is uncertain from Hood's testimony whether either of the described incidents took place on or after December 28, 1955. In evaluating evidence offered in support of a party's objections to an election, it is the Board's policy to ignore misconduct which occurred before issuance of the decision and direction of the election (F. W. Woolworth Co., 109 NLRB 1446), primarily because such events are deemed to have been "unreasonably remote" from the date of the election . M. W. Breman, 115 NLRB 1581. Unlike a statute of limitations, which must be affirmatively pleaded by the party asserting the same, the timeliness of election misconduct is always in issue in a representation proceeding regardless of whether specifically raised by any of the contesting parties. This is because a hearing on objections to an election is not an adversary proceeding but a means used by the Board of implementing its functions under Section 9 of the Act of determining in the public interest questions of representation. The Woolworth case, therefore, establishes a rule of relevancy, and it is the obliga- tion of the proponent of an objection to establish that the conduct it relies upon was sufficiently proximate to the date of the election as to have had a substantial effect on the results. Because it has not been adequately established that the aforedescribed conversations between Hood and Webster took place on or after December 28, 1955, the date of the Board's Decision and Direction of Election herein, no weight may be given thereto in this proceeding. Hood further testified that after he had been transferred to the second shift Webster "came over one afternoon and said he was betting three to two that the CIO wouldn't get in." Duke, who was present on that occasion , said, "I will give the same bet." Webster did not deny the incident, although Duke did. However, assuming the event as testified to by Hood, I do not spell from it any 151 credit Rood's testimony rather than Webster's circumspect denials. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicium of interference. The record is replete with evidence that the Petitioner's supporters among the employees were not timid about advertising their union sympathies and arguing the merits of their choice with supervisors and other repre- sentatives of management who may have indicated preference for the Intervenor. In the environment of free, uninhibited debate which prevailed during the critical preelection period in this case Webster's offer to wager on the outcome of the election did not bear any coercive implications. Calvine Cotton Mills, Inc., 98 NLRB 843, 846. 10. Activities of Assistant Foreman Rollie Hamilton Arnold Buchanan testified to a conversation with Hamilton. The Petitioner relies upon the incident not because of any asserted impropriety in the remarks made by Hamilton, but because it illustrates "the extent of Hamilton's campaigning efforts." However, I find that even for this limited purpose no weight may be given to the incident because it was not established that the conversation took place within the critical preelection period.16 Employee Eugene Eaton, who impressed me as having an excellent recollection of the events about which he was questioned, credibly testified that about the first week in January 1956 he had the following conversation with Hamilton: Q. And what did he say to you?-A. He said, "There is no use of me asking you how you are going to vote," he said, "You with a CIO shirt on, and two buttons: I guess that speaks very plain." And I said, "Yes, I guess it does." Q. What else did he say to you?-A. He said, "You have got a pretty good car, I would hate to see you lose it." And I said, "Well, I would hate to lose it, but we ain't going on no strike, not for a long while." Q. Did he say anything about the Independent Union?-A. He said, "You ought to be able to see things as I do." He said, "The Independent has been awfully good to us in the last few years we have had it, they have always come up with a raise every year." Q. Did he say anything about contracts?-A. He said that he was told that if the election was won by the CIO that half of the contracts that we had at the time would be pulled. Upon the basis of the cases cited above, I find that the foregoing is not deemed to be objectionable by the Board. Eaton further testified credibly that Hamilton said to him that "the Company would deal with an Independent Union better than they would with the CIO." The coercive effect of this remark must be evaluated by considering its source and its background. Hamilton was 1 of approximately 88 foremen and assistant foremen in the Company's employ. There is no evidence that he enjoyed any special confidence of management or that the employees thought he did. The Employer through the agency of its president, John Lawler, industrial relations manager, Jack Linzie, and personnel manager, Paul Moore, widely published its views on the election, including its forecasts as to what the employees might anticipate if the Petitioner were to win. No statement attributed to Lawler, or even to Linzie or Moore, indicated that the Employer would deal differently with the Petitioner than with the Intervenor. Thus, Hamilton's statement to Eaton in that regard can- not be considered as a reflection of management's attitude, but was rather an expression of Hamilton's personal opinion. The record shows that there was much union discussion during the preelection period among the employees (during non- 16 Buchanan in testifying to an incident involving Foreman Lee first said he did not know when it occurred. When reminded that he fixed January 10, 1950, as the time of the event in an affidavit previously submitted to a Board representative (which affidavit was admitted in evidence for the purpose of impeachment to show inconsistent testimony by the witness with respect to dates) he answered, "If that's the statement, I presume it is more accurate than what I could tell you." Thus, Buchanan's testimony shows he merely adopted the date given in the affidavit and that reference to the affidavit did not refresh his recollection of the event. As to the conversation with Hamilton, Buchanan testified that he was unable to recall how long before the election it took place, but he presumed it was about the same time as the incident involving Lee. However, in the same affidavit where Buchanan stated that the Lee incident occurred on January 10, 1956, he estimated his conversation with Hamilton as having occurred 3 or 4 weeks before the election. Even were Buchanan's testimony credited, it does not establish with acceptable certainty that his conversation with Hamilton followed the issuance of the Decision and Direction of Election herein. AERONCA MANUFACTURING CORPORATION 481 working hours and covertly during working time ) and between employees and supervisors. Likewise, the record demonstrates that in discussions with supervisors and even with Company President Lawler the Petitioner's adherents, in general, were not hesitant about defending their choice and at times were quite aggressive in presenting their views . In these circumstances and considering the vigor with which all parties were campaigning , Hamilton's remark was not significant enough to have had any effect upon the results of the election . Morganton Full Fashioned Hosiery Company, 107 NLRB 1534, 1538. Billy Paul Winebarger testified as follows: Q. Did anybody ever ask you to take off your CIO badge that you were wearing?-A . Well, they didn't exactly tell me to take it off, they just gave it to me in a way that I had better take it off. Q. Who gave that to you?-A. Well, Rollie Hamilton, he came and told me a couple of times, said he couldn't hardly believe his eyes when he saw me with a CIO badge on. Q. He didn't order you to take it off, did he?-A. No. Contrary to the Petitioner, I find no evidence of coercion in this testimony. 11. Activities of Assistant Foreman Dale Lee Employee Roy Hall testified to a conversation with Assistant Foreman Dale Lee. Lee was not called as a witness . Therefore, upon the basis of Hall's uncon- tradicted testimony, I find that the following took place: On January 10 or 11 , 1956, Lee in a conversation with Hall told the latter that if the CIO won the election the Employer would lose some of its contracts, and that it would be better to continue the Independent as bargaining agent in order to avoid loss of employee privileges . Lee also referred to the good record of the Intervenor, namely, that there had not been a strike in 10 years, and to the Petitioner's reputation for calling strikes and suggested the possibility of a strike at Aeronca should the Petitioner win the election . For reasons referred to in other sections of the report (see particularly discussion of conversation between Rollie Hamilton and Eaton ) I find nothing significantly coercive in the foregoing. 12. Activities of General Foreman Elmer Weirauch Ben Heitfield testified that about a week before the election, during a de- partmental meeting, the following occurred: He [another employee] asked the question how Elmer thought about the coming election, and Mr. Weirauch said that he was impartial to it, he had been through these things before, that he said he understood that outside interests were going to ask for a 25 cent raise , and that, he casually opened his notebook at that time, and he said that 25 cents an hour raise, and he multiplied that by the number of people working at Aeronca, times 40 hours a week, times 52 weeks a year, and he came up with something around $750,000, and he said the Company couldn't afford it, they would go broke. By itself, I find nothing objectionable in the foregoing. 13. Activities of Foreman Malcolm Profitt Employee Bertha Cooley testified without contradiction that at a departmental meeting held by Profitt about January 11, 1956, he said that he hoped the employees would vote the right way because in the event of labor unrest it was possible that the Company would lose contracts. Profitt then asked for comments and one of the employees asked him, "Do you mean to say that if-that Boeing will not let their contracts to anyone that has the CIO?" Profitt replied, No, he didn't mean it that way, he meant that if there was labor unrest Boeing would be afraid that Aeronca would be unable to meet its delivery schedules. At this point Cooley with her own specific problem in mind asked whether foremen were being unfair in favoring some employees by promising them raises and whether this was the reason employees wanted a different union. Profitt said that he agreed to some extent. Subsequently, on the day before the election, Cooley stopped Profitt and asked whether he had given any further thought about obtaining a raise for her. Profitt answered, "I don't see any reason why I can't get you a raise. Others are reclassifying their employees , and getting them raises, and I don't see why I can't you. I think that I could get you reclassified to a B-7 assembler and that way 450553-58-vol. 118-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you can make the same money as the rest of them in here." Cooley did not re- ceive a raise. I find, contrary to the Petitioner, nothing objectionable has been proved by Cooley's testimony. As to the raise, she initiated the discussion and, except for the time she herself selected for bringing up the matter, there was no relationship between Profitt's comments about her raise and the pending election. The Liberal Market, Inc., 108 NLRB 1481, 1484-1485. 14. Activities of Foreman Robert Anthony Considerable evidence was offered concerning a departmental meeting held by Foreman Anthony. Upon consideration of all the testimony offered with regard to the event and my opinion as to the relative credibility of the various witnesses who testified upon the subject, I find that the most reliable account of the incident was given by William Woolums. I therefore credit the following testimony by Woolums: Foreman Anthony held a meeting of the second-shift employees of the department which he supervised on January 4, 1956. He opened the meeting with a discussion of departmental problems. Then, referring to the pending election, said that if the CIO became the bargaining representative Boeing Aircraft Company would transfer 40 percent of their orders with the Employer elsewhere in order to insure an alternate source for parts in the event of a strike at Aeronca and that would mean a 40-percent layoff by the Employer. In response to questions asked by employees attending the meeting Anthony said that with the CIO as repre- sentative a small number of employees could authorize a strike and pickets would be paid only $1 per day. Some of Petitioner's adherents in the audience contra- dicted Anthony with respect to several of his assertions. Anthony's comments on the occasion in question fall into the category of prophecy which the Board normally does not find constitutes objectionable employer cam- paigning. The Petitioner argues that the departmental meetings 'held by Anthony, Weirauch, and Profitt during the critical preelection period whereat these foremen, in effect, urged the employees in their respective departments to vote against the Petitioner, constituted interference with the election. Petitioner cites Radiant Lamp Corporation, 116 NLRB 40, in support of its position. In the Radiant Lamp case, the employees in groups of 30 were brought into the recreation room where a company officer described to them the disadvantages which they might anticipate with union representation . In this fashion the company propagandized approxi- mately 180 out of 190 eligible voters.11 The Board held that such interviews "creates an atmosphere which prevents the employees from expressing themselves as freely and fully as they otherwise might, and constitutes conduct calculated to interfere with their free choice in the election regardless of the noncoercive tenor of the Employer's remarks." The circumstances here are altogether different. The three meetings referred to by Petitioner were regular departmental meetings at which only incidentally was the pending election discussed and were not meetings of employees specially called for the sole purpose of presenting the Employer's campaign position. Furthermore, the meetings here were conducted by foremen rather than higher managerial representatives , and unlike the Radiant Lamp case, the rank-and-file employees freely expressed themselves at the meetings. Finally, and most significantly, only about 120 employees in the unit of 1,200 or approxi- mately one-tenth of the eligible voters, attended these meetings, whereas in the Radiant Lamp Corporation case substantially all eligible voters were interviewed. I find, therefore, that the principle expressed in the Radiant Lamp case is not applicable here. 15. The no-solicitation rule For more than 10 years the Employer has had in effect the following no-solicitation rule: No Aeronca employee will be permitted to make any solicitation on Company premises without permission from the Personnel Department. This rule is not per se unlawful. Without disputing this fact the Petitioner, however, urges: It is our contention that the no-solicitation rule of the Company was utilized for the purpose of preventing and impeding the organizational activity of the UAW because: 17 See also Supreme Trailer Company, 115 NLRB 962, where the Board set aside an election because the Company's attorney interviewed all the employees with only 1 ex- ception in groups of less than 24. AERONCA _MANUFACTURING CORPORATION 483 1. The Company permitted supervisors, including group leaders, to solicit employees on Company time and property; 18 2. The Company permitted independent representatives to solicit on Company time and property; 3. The enforcement of the rule was not for the purpose of increasing plant production and efficiency but to discourage the employees from voting for the UAW. The record does not sustain the Petitioner's second and third arguments, quoted above. Considerable evidence was adduced on behalf of the Petitioner as to various violations of the no-solicitation rule by representatives of the Intervenor. However, the record also shows that during the preelection period the Petitioner's adherents likewise engaged in union solicitation on company time. The Petitioner sought to prove that the Employer condoned violations of the no-solicitation rule by the supporters of the Intervenor during the preelection period. I have reviewed all the evidence in this regard and find that the Petitioner has not succeeded in proving such fact. I find that there is insufficient evidence to establish that union solicitation on the part of any rank-and-file employee was done with the approval, express or implied, of the Employer. It may be true that the Intervenor's representatives, who were permitted to process grievances during working hours under the terms of the collective-bargaining agreement with the Employer, had more chances to engage in covert solicitation on company time than had the supporters of the Petitioner and took full advantage of their opportunities, 19 but this is not proof that the Employer knew of and condoned such conduct.20 I find that it has not been estab- lished that the Employer either enforced its no-solicitation rule to interfere with the Petitioner's election campaign or applied the rule in a discriminatory manner in order to assist the Intervenor. On the other hand, there were frequent violations of the no-solicitation rule during the preelection period by various supervisors. The question then is raised whether it is interference with an election for an employer through the agency of its super- visors to ignore a no-solicitation rule which is being enforced against the rank-and- file employees. Is this such a disparate application of an otherwise valid no-solicita- tion rule as will prevent a free choice of representatives? The Petitioner cites The Gruen Watch Company, 108 NLRB 3, 5, where the Board said: It is well established that an employer's discriminatory application of an other- wise valid no-solicitation rule violates the Act where, as here, it is enforced against union solicitation and the employer uses its premises as a forum for solicitation against the union. However, the Petitioner recognizes that the foregoing was subsequently modified in Peerless Plywood Company, 107 NLRB 427. Analogously, the Board in Livingston Shirt Corporation, 107 NLRB 400, held that there was no violation of employee protected rights when in the face of a no-solicitation rule the employer several days before a Board election made an antiunion speech during working hours to as- sembled employees and denied the union an opportunity to reply under similar circumstances. More recently, in Nutone, Incorporated, 112 NLRB 1153, 1154, the Board held that: "Valid plant rules against solicitation and other forms of union activity do not control an employer's actions. Management prerogative certainly 18 In the Petitioner's original objections herein the only reference to any violation of the no-solicitation rule was "that the Employer permitted the free run of the plant for electioneering by the Intervenor but denied the same right to the Petitioner." This ob- jection does not raise any issue with regard to violation of the rule by supervisors. How- ever, in its exceptions to the Regional Director's report on the objections the Petitioner alleged Although the Employer had a rule against electioneering on working time, it per- mitted supervisors to wear the Independent's buttons, and the Employer, itself, electioneered on Company time and property against the Petitioner and for the Independent. Because the Board ordered the instant hearing to resolve the "issues raised by the said objections and exceptions," without indicating any limitations, the hearing officer is of the opinion that pursuant to this order the Petitioner was entitled to litigate matters raised for the first time in its exceptions to the Regional Director's report. Cf. General Electric Company, 115 NLRB 306. lg See Seaboard Terminal and Refrigeration Company, 114 NLRB 754, 755. 211 likewise find that the Intervenor affixed posters to plant fences on the day of the election without permission or advance knowledge or other approval of the Employer. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extends far enough so as to permit an employer to make rules that do not bind himself." There are, of course, factual differences between the instant case and the Peerless Plywood, Livingston, and Nutone cases, but no distinction in principle. The fact that the Employer permitted supervisors to campaign against the Petitioner during working hours while denying similar privileges to rank-and-file employees did not deprive the employees of the opportunity for expression during times when they were not being paid to work by the Employer and did not prevent them. from exercising a free choice in the election. 16. Supervisors wearing campaign buttons The Petitioner adduced evidence that five supervisors during the preelection period for brief intervals wore buttons or badges indicating sympathy for the Intervenor. The credited evidence shows that Richter, Seevers, Lee, Webster, and Hart 21 each wore such buttons only once and for a period of between 5 minutes and 1 hour. Although unquestionably this conduct indicated the wearer's preference for the Intervenor, I do not find that it interfered with the election. By this finding I do not mean to pass upon the question of whether interference might not be spelled out in other circumstances where a greater proportion of supervisors were to wear union badges for more extensive periods of time. Here, a total of 5 supervisors out of more than 88 wore badges for a combined total of time not exceeding 5 hours during a period when the election campaign was being vigorously fought by all participants. In such circumstance, the impact of this conduct was too trivial to have had any significant influence upon the results of the election. Rheern Manufacturing Company, 114 NLRB 404, 406. Conclusion I have found, as did the Regional Director in his report on objections, that no single incident or group of related incidents interfered with the employees' oppor- tunity to register freely their choice at the polls. However, Petitioner in its exceptions to the Regional Director's report contended: Petitioner's Objection to Election is leveled at the total misconduct of the. Employer. The Regional Director has mistakenly considered each numbered allegation of fact or specification as a separate objection. Whether this approach was deliberate or in error, he has employed it for the purpose of treating each allegation of fact as an isolated incident. Thus he was enabled to wholly ignore the accumulated effect of the Employer's misconduct. We claim that he was in error in not considering the accumulated effect of the Employer's misconduct on the results of the election. Had he considered the accumulated effect of the Employer's misconduct he would have found that the atmosphere caused by the Employer was incompatible with the employees' exercising a freedom of choice for bargaining representative. This argument raises the question whether, even absent any specific improprieties„ the Employer's campaign activities considered in their entirety unfairly affected the results of the election. From the perspective of the number of voters reached by its propaganda, the Employer's most important campaign tactics were President Lawler's talk to the employees and the Employer's publications which were disseminated to them. On Thursday, December 29, 1955, the day after the Board issued the Direction of Election, President Lawler, in a speech to the employees, recounted to them the benefits they had received while they were being represented by the Intervenor and predicted economic suffering for them if the incumbent representative were replaced by the Petitioner. Then, on January 3, 1956, following the New Year's holiday,. the attack upon the Petitioner was renewed in a letter from Industrial Relations Manager Jack Linzie which was mailed to all employees in the unit. The following week the Employer accelerated the tempo of its campaign. On Monday, Wednesday, Thursday, and Saturday, January 9, 11, 12, and. 14, 1956, additional letters, all bearing President Lawler's signature, were mailed to the employees. These letters re- emphasized the Employer's thesis that the employees' best interests would be served 211 accept Floyd Buchanan's testimony that George Hart was an assistant foreman only because it was not contradicted at the hearing, although the Employer's compila- tion of supervisors and lea.dmen which was accepted as an exhibit in this case after the close of the hearing shows that Hart was a leadman. There was testimony about George Harsch. However, the witness who testified was uncertain as to whether Harsch was a foreman, and I find that his supervisory status was not established at the hearing, AERONCA MANUFACTURING CORPORATION 485 by preserving the status quo and that all they could anticipate from a change of bargaining representative was strikes and economic suffering. On Friday (January 13) of the same week, in its newsletter distributed to the employees, the Em- ployer advised them that "the election will decide the future of all our jobs and our Company." With the election scheduled for Wednesday, January 18, 1956, the Employer wound up its campaign with a letter from Personnel Manager Paul Moore which was mailed to the employees on Monday, January 16. To add color to its principal propaganda theme that a victory for the Petitioner would probably be followed by an economic setback for the employees, the Employer made frequent disparaging references to the Petitioner and its agents and with not too much subtlety suggested that the Petitioner was concerned with advancing its own selfish interests rather than the employees' welfare. The basis expressed by the Employer for, its many predictions that economic suffer- ing would follow selection of the Petitioner as bargaining representative was that the Petitioner as an aggressive union probably would seek to enforce excessive wage demands with a strike, and the possible consequence of a strike would be loss of business for the Employer with a consequent reduction in its work force. This theme found its substance in the fact that the Employer' s business is largely devoted to the manufacture of airframe parts under subcontracts from Boeing Aircraft Company, and in the event of a strike or other labor difficulties which would affect production Boeing could cancel a substantitial portion of its orders. The Petitioner contends that this propaganda • was deceptive. However, the evidence shows that the Em- ployer's deliveries are geared to Boeing's production schedules and that the contract between Aeronca and Boeing provides that in the event Aeronca is unable to meet its delivery commitments Boeing has the right to cancel the agreement. Thus, a strike at Aeronca which would stop or delay production could result in cancellation by Boeing of its contract. There is no savings clause in the agreement which excuses non-performance in the event of a strike as there is no clause which gives Boeing the right to cancel merely because of the existence of a strike. The employees were well aware of these conditions of the Employer's contractual arrangement with Boeing. I find, therefore, contrary to the Petitioner, that the Employer did not thereby engage in deceptive campaigning. Also, during the critical preelection period, there were three departmental meet- ings and a number of conversations between employees and representatives of man- agement at which directly or indirectly the employees involved were urged to vote against the Petitioner. Unlike the Employer's publications, this conduct does not appear to have been deliberately included as part of the Employer 's planned elec- tioneering campaign. In large part these attempts at personal persuasion were the natural responses of the Employer's agents to opportunities which arose whereby they could engage in electioneering and express their views with respect to the pending election. Less than 200 employees were involved in the 3 departmental meetings and the personal interviews in contrast with the fact that the Employer's campaign literature was disseminated to all 1,200 employees in the voting unit. These casual and informal personal approaches to a relatively small proportion of em- ployees in the unit, particularly because they did not include any threats of reprisal or promises of benefit, I find did not change the essential nature of the Employer's election campaign. The sum of the Employer's activities during the critical preelection period totals to an intensive electioneering campaign. In the landmark General Shoe Corporation case,22 the Board stated: We do not subscribe to the view, apparently held by our two dissenting colleagues, that the criteria applied by the Board in a representation proceeding to determine whether certain alleged misconduct interfered with an election need necessarily be identical to those employed in testing whether an unfair labor practice was committed, although the result will ordinarily be the same. In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to estab- lish those conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again. The Board thus recognizes that it is only a rare extreme case which offers justification for vacating an election in the absence of conduct which in a complaint proceeding 77 NLRB 124, 127. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be found to be an unfair labor practice. Examples of such cases are provided by Peerless Plywood Company, 107 NLRB 427; Economic Machinery Company, 111 NLRB 947; Falmouth Company, 115 NLRB 1533; The Electric Auto-Lite Company, 116 NLRB 788; and Bata Shoe Company, Inc., 116 NLRB 1239. The only basis for including the instant proceeding in the "rare extreme case" category is that the Employer was vigorous in its preelection campaigning . But this cannot be objectionable. It is now clear (contrary to the Board's policy during the early days of its administration of the Act) that an employer has the right to express its preference between competing unions and to supplement his opinion with reasons in order to persuade the employees to vote for the choice he favors. If the Employer may seek to influence the employees in their selection of a bargaining agent, logically,, he may do so in a manner which has the greatest likelihood of success provided only that he does not engage in prohibited conduct. So long as there is no require- ment that an employer maintain an attitude of neutrality during a union election campaign, there can be no legitimate reason why there should be any fetters upon the intensity of his electioneering activities. The record demonstrates that not only the Employer but the Petitioner and the Intervenor also campaigned vigorously during the preelection period. The sup- porters of both unions among the employees engaged in free and uninhibited debate about the merits of their choice. The Employer did not impose any unlawful curbs upon free expression by the employees. Campaign insignia was openly worn in the plant by the Petitioner's adherents as well as by the supporters of the Intervenor. Literature published by the Petitioner was distributed openly at the entrances to. the plants and was brought inside the plants just as freely as the literature distributed by the Intervenor. The rank-and-file employees not only argued the merits of the contesting unions among themselves, but also freely debated the question with their supervisors and even with the Employer's president. Although one witness testified, in effect, that he feared reprisals for his support of the Petitioner, upon consideration of all the testimony adduced before me, I am of the opinion that the Petitioner's supporters among the employees had no genuine fears of reprisal. Certainly the openness, and ofttimes the belligerency, with which they expressed themselves at the plant would belie any contention that they were denied the op- portunity of free expression during the preelection period. If the Employer's campaign was effective, as I assume it was, it was effective not because the Em- ployer created an atmosphere of unreasoning fear in its plants so that the employees' opportunity to exercise a free choice at the polls was impaired, but because the Employer was adroit in advertising its preference and persuading the employees to accept it. I conclude, therefore, that the Employer's total conduct during the critical pre- election period did not interfere with the employees' ability and opportunity to, exercise a free reasoned choice in the election. RECOMMENDATION It is recommended that the Petitioner's objections to conduct affecting the results of election in this case be overruled in their entirety and that an appropriate Certification of Representatives issue. APPENDIX A PETITIONER'S EXHIBIT 2B AERONCA MANUFACTURING CORPORATION Middletown, Ohio Phone: 2-2751 January 3, 1956 To All Aeronca Men and Women: The CIO has started their hocus-pocus to mislead you. They (the CIO) pulled from thin air the idea that the Government caught the Company making Secret Deals with the Independent Union. This is far from the truth. The Labor Board stated in their decision: "We conclude, under all the circumstances of this case, that the July 27 supplement did not meet the clear and explicit requirements of the contract it purported to modify. It -failed, therefore, effectively to suspend the unlawful union security provision of the contract." This twisting of the truth is just a method of the CIO to divert your attention from the real issue. It is somewhat like the magician who in putting on his show makes a lot of motions with one hand so you cannot tell what AERONCA MANUFACTURING CORPORATION 487 is actually happening to the main issue in the other hand. That is the situation here. The CIO is picking on a technicality in the law and using it to divert your attention from the real issues in the forthcoming election. Here are the facts of the case: (a) On March 3 the Independent Union and the Company signed the present contract which contained many clauses such as seniority, sick leave, vacations, and other things affecting wages, hours, and conditions. One clause in the contract which is typical of union contracts, including the CIO, deals with union security. This clause states that if you become a member of the union you must remain a member of the union until the anniversary date of the contract. This is the clause that the CIO is shouting about even though they have it in their contracts. (b) Under the National Labor Relations Law it states if you have a security clause in your contract that the Union must be in compliance on their non- communist affidavits and their financial statements. The Independent Union did not have their certificate of compliance when the March 3 contract was signed. Therefore, under the law the contract signed by the Independent Union and the Company on March 3 would not be a bar to an election. In all other respects it was a legal and binding contract. (c) The fact that a contract is not a bar means that a rival union can petition for an election and in this case the CIO could have asked for an elec- tion any time they were campaigning from last November until the Independent Union came into compliance. (d) On July 27 the agreement which the CIO plays up was merely a statement from the Independent Union saying they would like to suspend the union security clause until the compliance papers were received from Washington. To this the Company agreed. (e) Normally it would have been a matter of a few days until compliance had been received from Washington but due to the forms having to be re- submitted on two occasions to the Government, the final compliance was not received until August 25. The CIO had filed their petition on August 19. Had they filed their petition six or seven days later it would have been disallowed and the contract would have stood as a bar. Their petition was allowed because of the technicality and the time of the filing. In closing I would like to leave these thoughts in mind with you. (1) The coming election is not to decide technicalities of the law-but what kind of conditions and relations will exist here at Aeronca after the election. (2) The contract with the Independent Union is a valid contract and only one clause of that contract was questioned. The contract was not disallowed by the National Labor Relations Board but it only gave the right to the CIO to petition for an election. The brief of the hearing in Cincinnati and of the decision by the Labor Board' are available in the Personnel office. If you have any questions concerning- either the hearing or the order, please drop in and examine the official docu- ments of the Labor Board. Sincerely yours, ( Signed ) Jack Linzie. JACK LINZIE. Petitioner's Argument: The Petitioner refers to the paragraph next to the last in the above letter and argues that it bears the following implication: If employees voted for the Petitioner and the Petitioner won, employees would be bound by provisions of Independent's contract, including the union -security- clause. Thus a vote for the Petitioner would be futile. This is a false and misleading statement of material proportions. Comment: The above-quoted letter purports to answer the Petitioner's accusation that "the- Government caught the Company making Secret Deals with the Independent Union." The author attempts to explain the meaning of the Board 's decision in the represen- tation proceeding . The paragraph referred to by the Petitioner means no more- than that the National Labor Relations Board has not declared the entire contract between the Company and the Intervenor invalid , which is the fact. See N. L. R. B. v. Rockaway News Supply Company, Inc., 345 U. S. 71. Nowhere in the letter is it stated that the employees would continue to be bound by the terms of the contract were the Petitioner to win the election . Therefore, Petitioner's criticism of the letter is not aimed at what was falsely stated , but at what was left unsaid . In essence, 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner's argument is that the author's failure to discuss the effect of certification of the Petitioner upon the continuity of the agreement (see American Seating Company, 106 NLRB 250) was construed by the employees to mean that it would have no effect whatsoever. Why the employees should have obtained such impression from the author's omission (this, of course, assumes without any supporting proof that the employees closely analyzed the letter and noticed it made no reference to the status of the current agreement in the event that the incumbent union were to lose the election ) is not explained by the Petitioner. I find nothing in the language of the letter to support Petitioner's suggested construction. I find, therefore, that the letter does not include any false or misleading statements of material proportions. Unity Manufacturing Company, 107 NLRB 21; Stewart-Warner Corporation, 102 NLRB 1153, 1157-1158. PETITIONER'S EXHIBIT 2c AERONCA MANUFACTURING CORPORATION Middletown, Ohio Phone: 2-2751 January 9, 1956 To All Aeronca Men and Women: Most important date on your calendar-and mine-is January 18, 1956. That was chosen as Election Day by the Labor Board when they met in Cin- cinnati with the Independent Union, the CIO and the Company. The election will be held in each of our three plants . The bulletin board in your plant will announce the exact hour and place where you can cast your vote. You will remember that at our meeting of all Aeronca folks a few weeks ago, I explained how vitally important this coming election is to you, your family and our Company . We have come a long way from the dark days of 1949. As our Company income increased , our wages , too, were increased . We lost no time because of strikes; our jobs were not threatened because of labor trouble within our organization. We worked in peace and harmony; the future of our jobs seemed brighter and more secure as our orders increased. Last year, our Company was able to make a profit ; not large, (3 cents on each dollar of sales) but it looked encouraging . It began to look like 1956 would be a good year for all of us who worked at Aeronca. Now the CIO boys have moved in, anxious to get their hands on a big slice of your paycheck. These men are outsiders-from outside of our or- ganization, outside of our community. To get their hands into your pockets, they promise you the moon, if you would believe them . Since their arrival in town, they have already told enough deliberate untruths to show how eager they must be to get a cut of the wages of Aeronca men and women. What other purpose could these outsiders have, except to line their own pockets with your money? In case you might be led to believe that CIO methods are all sweetness and beauty, take a look at the enclosed booklet. The pictures and words describe a sample of what happened when the CIO outfit decided to muscle in on the employees of the Kohler Company. See what happened to a peaceful town, to peaceful homes. Heaven forbid that these same conditions ever happened to us here at Aeronca! That is why I remind you again of the importance of your vote in the Jan- uary 18 election . That election will decide the future of our jobs and our Com- pany. It will affect the security of every Aeronca family. I shall keep you informed of how the election campaign is going. Mean- while, I seriously suggest you talk over with your family the tragic, but true, story in the enclosed booklet, and consider it most thoughtfully. Sincerely yours, ( Signed ) J. A. Lawler. JOHN A . LAWLER. Petitioner's Argument: The Petitioner argues that the next to the last paragraph of the letter contains a threat of reprisal because it implies that "if the UAW wins, the Company's disposition would be such toward the UAW as to cause loss of employment." Comment: The letter contains no threat that the Employer will use its economic power to cause loss of employment. At most it prophesies that successful organization by the Petitioner might be attended by strikes which ultimately could lead to loss of employment . Such prognostication is not considered by the Board to be coercive. AERONCA MANUFACTURING CORPORATION 489 Lanthier Machine Works, 116 NLRB 1029; Barber Colman Company, 116 NLRB 24, and cases therein cited. Furthermore, enclosed with the letter was the Kohler of Kohler News for April 1955. This booklet accuses the UAW of responsibility for the troubles at the Kohler plant and suggests that the Kohler Company and its employees are the innocent victims of the UAW's struggle for power. Particularly when the letter is considered together with the enclosed Kohler News its predictions. of possible future loss of employment are derived from anticipated action by the Petitioner rather than by the Employer. Accordingly, I find that the letter does not carry the implication suggested by the Petitioner. PETITIONER'S EXHIBIT 2D AERONCA MANUFACTURING CORPORATION Middletown, Ohio Phone 2-2751 January 11, 1956 To All Aeronca Men and Women: This coming election, as far as our Company is concerned, is not a "battle of promises." In the heat of a campaign, when we are -being attacked savagely, we shall not resort to wild promises that we cannot fulfill. We are a responsible business concern, doing a most important job that Uncle Sam wants done at an important time in our nation's history. We have the responsi- bility of making enough money to meet out payroll regularly every payday, and doing business honestly, legally and above-board. We can not, and will not, resort to giving rash promises that we can not carry out when the time comes to make good on them. You may remember when we all met on that Thursday just before New Years. I recalled to you at that time the promises our Company made to you several years. ago, and which I felt had been fulfilled to the best of our ability. You can be sure that we will always strive to improve things at Aeronca, make them better as we are able. We will honestly and faithfully keep our word in the future as we have in the past. On the other hand, during this election campaign, many promises have been made, and more will be made, by the CIO. That is one of their specialties. They hire high-priced, professional organizers and propaganda writers who do nothing else, day after day and year after year, but write and talk about the CIO. They are professional promise-makers. They hold meetings where people hear only one side of the story-the CIO story. In these private meetings, these CIO organizers can be most careless with the truth. They can make really BIG promises to you. They need not be responsible, for none of their. wild promises are put into writing or signed. If you want to try them out, ask them to sign the details of what they are going to do and exactly how they are going to do it. They cannot guarantee anything. Like the blue-sky salesmen who sell swampy land to trusting widows, these CIO salesmen know every slick truck in the book. They also hate the hard, honest facts, the truth. That is why they resent very much, and smear us, if we try to put the spotlight on truth on their background, their purposes, their statements. We here at Aeronca believe in an open and fair discussion of all the issues in the election, and we will continue to give the facts, no matter what the CIO promise-makers say. An old trick of the CIO, to try to convince you they can make good their promises, is to tell you that if THEY are chosen to represent you, the Company MUST agree to their demands. But you should clearly understand that when those demands are outrageous-as they often are-Companies do not have to agree. It is not necessary for a company to "give in" to them, but only to meet and negotiate in good faith. And when a company is not in a position to meet their wild demands, or does not agree, there is only one way for the CIO to go-a strike, with all its hardships, loss of pay days, unrest and general misery and unhappiness for men and women and their families. You can see the sad results of such strikes which developed at the Kohler Company, Perfect Circle Company, Westinghouse, and many others. How dependable are the CIO promises for your security? You can judge from the record of strikes that marks their trail in the past. In comparison, you can judge our own company and its proved ability to carry out its promises in the past. We have enjoyed fine cooperation between employees and management at Aeronca as our business has improved over the years. We have been able 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make good on all our promises by peaceful means. I cannot see how the CIO could do anything but threaten our future and hurt us all. The CIO, with its unclean record of trouble and broken promises, is too much of a gamble on which to risk the future of our jobs and our families' security. Sincerely yours, (Signed) J. A. Lawler. JOHN A. LAWLER. Enclosure Which Was Mailed With Above Letter RECORD PROVES CIO STRIKE-HAPPY Look at this list of CIO strikes in our own part of the country. This is typical of the way the CIO brings "peace" to a plant and a community. Some of their strikes are accompanied by shooting, dynamiting and vicious beating of employees. You will remember the shameful strike at the Perfect Circle Company in Indiana, in which there was shooting and rioting. On the day before last Thanksgiving, the Governor had to send the National Guard in again to protect the workers from the wrath of the CIO bosses. What have you and your family to gain by entrusting your security to a strike-happy outfit like the CIO? What benefits can they bring you except the troubles and misery of lost work? This list is typical of CIO "accomplish- ments." Is this what you want at Aeronca? Standard Thompson and Company (Dayton)-6 weeks strike. Fosdick Machine Tool Co. (Cincinnati)-16 weeks strike. General Motors (Hamilton)-1 week strike. Aluminum Industries (Cincinnati)-10 weeks strike. Ohio Paper Company (Dayton)-4 weeks strike. Hunnefeld Company (Cincinnati)-18 weeks strike. Cincinnati Butchers Supply Co. (Cincinnati)-15 weeks strike. Lockwood Mfg. Co. (Cincinnati)-10 weeks strike. Harris Seybolt Company (Dayton)-3 weeks strike. Powell Valve Co. (Cincinnati)-10 weeks and 8 weeks strike. Huffman Mfg. Co. (Dayton)-2 weeks strike. Lunkenheimer Co. (Cincinnati)-10 weeks strike. United Aircraft Products (Dayton)-5 weeks strike. National Lead Co. (Cincinnati) Magnus Brass-12 weeks strike. American Laundry Machine Co. (Cincinnati)-10 weeks strike. Westinghouse (Columbus)-12 weeks strike and not over yet. Williamson Heater Co. (Cincinnati)-10 weeks strike. Sawbrook Steel Casting Co. (Cincinnati)-10 weeks strike. United Welding Co. (Middletown)-10 weeks strike. Cincinnati Engineering Tool Co. (Cincinnati)-9 weeks strike. Bickford Machine Tool Co. (Cincinnati)-6 months and 13 weeks strike. Barklew Electric (Middletown)-8 weeks strike. Queen City Heat Treating Co. (Cincinnati)-9 weeks strike. Goldsmith Metal Lathe Co. (Cincinnati)-8 weeks strike. G. A. Gray Co. (Cincinnati)-12 weeks strike. Heekin Can Co. (Cincinnati)-7 weeks strike. Edwards Mfg. Co. (Cincinnati)-10 weeks strike. (And many others.) Petitioner's Argument: The Petitioner contends that the letter contained both threats of reprisal and promises of benefits . The bases for its contentions are as follows: . . we shall not resort to wild promises that we cannot fulfill. . . . We cannot , and will not , resort to giving rash promises that we cannot carry out when the time comes to make good on them. . . You can be sure that we will always strive to improve things at Aeronca, make them better as we are able . We will honestly and faithfully keep our word in the future as we have in the past." And: the UAW "cannot guarantee anything." IMPLICATION : The Petitioner can guarantee you nothing ; the Company guarantees that it will "improve things" and make "them better" without strikes if you vote against the Petitioner. This is a promise of a benefit. AERONCA MANUFACTURING CORPORATION 491 "We have been able to make good on all our promises by peaceful means. I cannot see how the CIO could do anything but threaten our future and hurt us all." IMPLICATION: Vote against the Petitioner and for the Independent, and, we promise you no strikes. Vote for the Petitioner, and the Company will use its economic power to force strikes. We will see that you are- not hurt if you vote against the Petitioner. This is both a promise of a benefit and a threat of reprisal. "But you should clearly understand that when those demands are outrageous (CIO demands)-as they often are-companies do not have to agree. It is not necessary for a company to `give in' to them, but only to meet and negotiate in good faith." IMPLICATION: It is futile for an employee to vote for the CIO since the Company will not "give in" to its demands but will use its economic power to force it to go on strike. This is anticipatory refusal to bargain. This is a threat of reprisal. Comment: Lawler's reference to the fact that the Petitioner cannot guarantee anything in the context of his thesis that the Petitioner makes wild promises without genuine hope of fulfillment merely suggested that the employees exercise caution before placing reliance upon promises made by the Petitioner. The writer's statement to the employees that the Company "will always strive to improve things at Aeronca, make them better as we are able" was an expression of policy. The letter does not indicate that continuation of this policy depended upon rejection of the Petitioner in the election. The Zeller Corporation, 115 NLRB 762; Robberson Steel Company, 114 NLRB 344; Esquire, Inc., 107 NLRB 1238, 1240. Likewise, the fact that the author reminded the employees that in the past they enjoyed improvements in their conditions of employment "by peaceful means" was not a promise conditioned upon the outcome of the election. Lawler's further statement that he cannot see how the Petitioner "could do anything but threaten our future and hurt us all" is merely speculation when read together with his references to the Petitioner's strike record and "wild" promises. There is no suggestion in the letter that the Company would take action to precipitate a strike or other economic injury to the employees. On the other hand it does suggest that the Petitioner by aggressive action following the presentation of "outrageous" demands would itself precipitate a strike. Similarly, the statement in the letter that it is not necessary for a company to "give in" to "outrageous" demands, but only to meet and negotiate in good faith is not considered by the Board to be a concealed threat that it will not bargain with the Petitioner in good faith should that union become certified. Troy Engine & Machine Co., 115 NLRB 883; The Lux Clock Manufacturing Company, Inc., 113 NLRB 1194, 1199, and 1201. La Pointe Machine Tool Company, 113 NLRB 171, 173. The entire letter, which unequivocally suggests to the employees that they vote against the Petitioner in the election by reminding them of past benefits and improvements obtained during the period of time when the employees were represented by the Intervenor and predicting that designation of the Petitioner as bargaining repre- sentative might eventuate in a strike or other labor trouble, is within the legitimate scope of an employer's preelection campaigning. There is nothing in the letter which specifically conditions future employee benefits upon rejection of the Peti- tioner at the polls or threatens employees with reprisals if they should designate the Petitioner at the election. The author's prophecy that the employees would be worse off were the Petitioner designated as collective-bargaining representative is not improper campaign propaganda. Accordingly, I find no merit to the Petitioner's specific objections to this letter. PETITIONER'S EXHIBIT 2E AERONCA MANUFACTURING CORPORATION Middletown, Ohio Phone : 2-2751 January 12, 1956 To All Aeronca Men and Women: If we lose our customers , we lose our jobs. We who have jobs at Aeronca know that, but the CIO organizers who came from outside to cause us trouble don't seem to know it-or else they are not interested in whether we have steady jobs or not . The CIO troublemakers don't have to depend upon our customers 492 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD for their bread and butter. Their salaries go on just the same, whether- Aeronca men and women have jobs or not. You know we are making important parts for several big customers. You. know the names of these customers . I believe you also know how important it is to Uncle Sam and our national security that certain parts get through our plant and into the plants of our customers . If there is any delay on our part or any chance that we would have any interruption in our production, we could lose those orders quick as a flash. Do you think our customers and our Government are going to stand around and wait for vital plane parts , if a bunch of CIO toughs tie up our plant with a reign of terror so they can collect dues. from Aeronca men and women? This could be a very real threat to our job security . If the CIO muscle men move in on us, and if trouble happens as it has in so many . many other places, we stand a good chance of losing some of these orders . If we lose orders, we lose jobs. It's that simple. Some of you can remember those days a few years ago when several big. truckloads of material rolled into our plant to be made up into airplane parts. If we have a work interruption at Aeronca, history could repeat itself. A few big trucks could drive up to our plant and haul away our jobs, too, just as they brought jobs to us a few years ago. Aeronca men and women have earned the reputation of being good work- ers-dependable, reliable, able to get material out on time. You built that reputation without the help of CIO Headquarters at Detroit or their pro- fessional organizers who recently dropped in on us to pick up some easy dues money. Whether the CIO likes it or not, we want to keep the orders. we have, and the jobs that go with those orders . Whether we have full pay- checks , steady work , and jobs, depends not one bit on the CIO, but on our- customers. The security of every Aeronca family depends upon that election, next Wednesday! Sincerely yours, ( Signed ) J. A. Lawler. JOHN A. LAWLER. Petitioner's Argument: The Petitioner contends that this letter contained a threat of reprisal , that if the. employees vote for the Petitioner, the employees would lose their jobs and the- trucks which brought jobs into the plant would haul those jobs away. Comment: The implication from this letter, particularly when considered with the letter writ-- ten by Mr. Lawler to the employees on the previous day, is that designation of the Petitioner as bargaining agent might result in a strike and if that were to happen the Company might lose orders . This, too, is merely a prediction of possible events- to come should the Petitioner win the election . It is not a threat by the Company that it will itself take steps to abrogate its contracts and orders should the Petitioner win the election . A threat is an expression of intent to cause an event to happen. The letter quoted above does not indicate any intent on the part of the Company to, do anything itself which will cause a loss of employment . The writer's speculation as to the possible consequences of the selection of the Petitioner as bargaining: representative falls into the category of prophecy or prediction . Such predictions. are considered by the Board as legitimate employer campaign activity. The Zeller Corporation, 115 NLRB 762; Chicopee Manufacturing Corporation, 107 NLRB 106; Morganton Full Fashioned Hosiery Company , 107 NLRB 1534, 1537; Sylvania Electric Products, Inc., 106 NLRB 1210. PETITIONER' S EXHIBIT 2F AERONCA MANUFACTURING CORPORATION Middletown, Ohio Phone: 2-2751 January 14, 1956 To all Aeronca Men and Women: Never before have I been with a company where I felt as close to all the employees as I have been with the men and women of Aeronca . You did me a great honor in 1949, when I had the difficult job of trying to bring back to life an almost dead Aeronca . At that time the men and women of Aeronca were willing to risk going without pay so that our company and our jobs would AERONCA MANUFACTURING CORPORATION 493 be secure. That story of Aeronca and its people became known nation wide; it's a story of which we can all be proud. And it was one of the finest tributes to me that any man could possibly have. I have told you on many occasions how much I appreciated that wonderful spirit of yours, which brought us through those rough days. It is one of my brightest memories of the past. We have enjoyed together a lot of benefits that many other plants in our indus- try would like to enjoy, but can't. We have had the kind of friendly atmosphere between us that allows us to discuss your problems and our company problems without suspicion and bitterness. You and I are both Aeronca people; we work together because we want our company and our jobs to bring security to all of us. We can discuss our mutual problems freely, because we are not strangers. We know one another as individuals; we see one another at work and on the streets. We are all members of the same family-the Aeronca family. There has been more than friendship to hold us together during the years. Aeronca has always tried, and successfully I believe, to pay wages that were fair, to provide good working conditions, and to treat all Aeronca people fairly and on the level. Among our own group we have had the intelligence and the ability to conduct our affairs for ourselves. And today, we can hold our heads high, because we have as good an average of high wages and as good working conditions as any other plant like ours in the industry. That was accomplished without having to go through the hate and harm and loss of income that result from strikes. During these years when we were building up our company, the CIO made almost a dozen attempts to try to sell itself to the men and women of Aeronca. Only once before did the CIO get as far as facing a free election and they lost heavily that time. On every try they made, you defeated them. Over the years, you. have been able to keep your independence and handle your own affairs, peacefully. You must have had good reasons to choose against the CIO and its labor troubles for so long a time. You have an opportunity to do it again next Wednesday. I shall always be grateful for the faith you people of Aeronca placed in me. And I, in return, have faith that you will make a fair decision when you vote at the election next Wednesday. I would like to be able to continue to work with you, as friends, for an even bigger and better future for all of us at Aeronca! Sincerely yours, (Signed) John Lawler. Jolt A. LAWLER. Petitioner's Argument: Petitioner contends that the implication to be derived from the last paragraph of the above-quoted letter is "a vote for the Petitioner and against the Independent will be viewed as an unfriendly act for which the Company will invoke reprisals, reprisals which will deny a `bigger and better' future." Comment: Construed in the light most favorable to the Petitioner's position, the author of the letter merely suggested that the friendly atmosphere which presently prevails in the plant might be lost if the Petitioner were selected as bargaining representative. This too merely is a prediction of the possible consequences of a victory by the Petitioner. It is not a threat of reprisal. The Zeller Corporation, 115 NLRB 762. PETITIONER'S EXHIBIT 2G AERONCA MANUFACTURING CORPORATION To All Aeronca Men and Women: Middletown, Ohio Phone: 2-751 January 16, 1956 I have been disturbed by false rumors that have been circulated by the CIO organizers saying that Aeronca wages were lower than the wages being paid at other plants where the CIO was doing the bargaining. If you were to believe these wild tales you might think Aeronca wages were out of line and on the low side. This is not true and I should like to set the record straight. It is a part of my duty as Personnel Director to know the wage scale for ,every Aeronca job. We must keep in touch with other companies to learn 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their wage scales. In my office I have a printed list of our wages, and along side it the wages of other plants-including plants where the CIO is the bargaining agent. In some cases the wages are the same on both lists. In many, cases Aeronca wages are higher than in the CIO plants. This information is not secret-you are welcome to come into my office any time .and look at the list. It is subject, also, to any checking-up you might like to do to assure yourself the figures are genuine. Our company has nothing to hide. In previous negotiations, the North American Aviation, Inc., of Columbus,. Ohio, had a strike called by the CIO. For fifty-four days the men and women of that plant were off from work. There was rioting on the picket line. There was suffering among families of employees who had no payday for fifty-four days during the CIO strike. When the men finally returned to work they received the same wages they had been offered by their company before they went on strike. These new wages were in line with the wages we have now at our Aeronca plants, and Aeronca men and women have not had to suffer from the CIO strike method of bargaining. I hope I have answered some of the untrue rumors about wages which the- CIO has been spreading among Aeronca men and women. I would welcome- your inspection of the wage list in my office at your convenience. Sincerely yours, (Signed) Paul Moore. PAUL MOORE. Petitioner's Argument: Petitioner argues that the statements contained in the letter with reference to the developments following the strike against North American Aviation, Inc., was a.. deliberate untruth. Comment: At the hearing the Petitioner sought to prove Moore was incorrect in his state- ment that "when the men finally returned to work they received the same wages. they had been offered by their company before they went on strike." The testimony adduced through Petitioner's witness, Ray Ross, was that upon the conclusion of the strike at North American Aviation, Inc.,. the employees were given the same general across-the-board wage increase which had been offered to, them immediately before the beginning of the strike, but that some adjustments to correct wage rate inequities for particular job classifications were made so that the final wage settle- ment, in toto, was higher than the increase which the company had offered prior to the strike. This testimony, 'at most, indicates a minor inaccuracy but does not establish' that the author of the letter had engaged in "a deliberate untruth." I find the letter was not sufficiently misleading to have affected adversely the results of the election in this proceeding. The DeVilbiss Company, 115 NLRB 1164; Unity Manufacturing Company, 107 NLRB 21; Verson Manufacturing Co., 114 NLRB' 1297. APPENDIX B SPEECH DELIVERED BY JOHN LAWLER TO AN ASSEMBLED GROUP OF EMPLOYEES ON DECEMBER 29, 1955 As most of you know, we have been waiting for a decision from the National'. Labor Relations Board as to whether or not an election would be held here at Aeronca to decide a bargaining agent, the Independent Union wanted an election for some time. This afternoon we' received word from the National Labor Relations Board that an election will be held to decide whether you are going to continue to be represented by your local Independent Union or whether you will be represented by the International CIO Union. The choice is one which you as an American citizen and as an Aeronca employee are free to make. Before reaching your decision, however, we believe you will seriously consider both sides of the question. Naturally we have a very under standable desire to give you the Company's position as the union organizers have given you theirs. For the past 7 years I have had the real privilege and pleasure of coming out and talking with you with the utmost frankness on vital information about your company and mine. In these speeches we have been able to cover a lot of territory, we have had some tough times together, and we have had some good times. It has been one of my greatest pleasures to come out and discuss problems with you as they arise. I recall that when the company was going through perhaps its most AERONCA MANUFACTURING CORPORATION 495 difficult time in 1949 with the financial hardships that we held such a meeting. At that time the statement was made, and one which I firmly believe in, that as Aeronca came out of the financial crisis that it was in, that we would take care of the people concerned with Aeronca in the following manner: First, we had to produce for our customer. For if we were unable to produce for our customer, it would mean that none of us would have jobs, there would be no money to meet payrolls, and we would be out of business. The second statement we made was after we manu- factured the product, the monies we would receive would first be used to compen- sate the people here at Aeronca. That promise was fulfilled in two ways-first, there were those employees during that period who had gone without pay, and they were reimbursed for that money as soon as it was available. The second part of that was that Aeronca would bring their rates up as rapidly as possible to the point where they were paying as high rate as possible in our type of business. If we compare since that period our rate increases, Aeronca's average rates have gone up 65 cents on the hour which is greater than any company in this area and which is greater than those settled on an International level. There has been no reason to change this policy and we see absolutely no reason to change this policy in the future. We also promised our creditors those people to whom we owed money. That promise has now been fulfilled. Then and only then we take care of the stock- holders. However, the common stockholders which by far are the greatest number of the people who have invested money in Aeronca have not yet received any payments to date. Dividends have been paid on some of those prior issues which were issued on monies invested in Aeronca at a time the Company looked like it was practically bankrupt. We have had many other occasions for these talks since that one back in 1949- such as our talks when we have been able to meet very tight production schedules, where we have been able to compliment the fine group of employees we have today. There have been others too where we have had such problems as the one we had not too long ago on quality where we discussed it with you and your reaction was to roll up your sleeves and do a good job improving our quality. I have pointed out these promises that were made by the Company several years ago and ones which I feel that have been fulfilled to the best of our ability. The reason I bring out promises is that in any type of election campaign such as will ensue in the coming weeks a lot of promises and statements will be made. I think you should look into these statements very carefully because it is very easy for anyone who has not had the responsibility of making decisions to sit back and say this is true and that is true. It is a little bit like the drugstore quarterbacks on Monday afternoon who decides how the game should have been played the preceding Saturday. They weren't in there on the firing line. So for the people on the outside it is easy to make a lot of promises which can never be fulfilled. Therefore, in arriving at your decision as to how you will vote I think very careful consideration should be given to the fact of eliminating any wild promises that anyone might make. One more thing I would like to suggest, this is an important election and for many of you it is the most important one you have ever voted in. It bears directly on your welfare and that of those dependent on you. To what kind of leadership are you going to entrust your future with the Company. Is it unselfish or is it not? Is it interested in your personal individual welfare or merely a self " seeking organization? On the basis of its past and present record in other places and right here in Ohio is it open and above board and dependable or don't you know? These are the questions you should think about and talk over at home. Your future and 'the future of the Company rests in your hands. That is the. reason knowing the fine people we have had here through the years that I have the utmost faith in the outcome of the election. APPENDIX C LAWLER'S INTERVIEWS WITH EMPLOYEES Floyd Adkins: This witness testified that about 2 weeks before the election he met Lawler in the plant and the latter began a brief conversation with the remark, "I see you have got a new sweater, Floyd," referring to the sweater Adkins was wearing which bore markings indicating he supported the Petitioner. After the witness asked Lawler, "How do you like it," the Company's president replied, "Well, I haven't got too much agin it, but I guess you know if this outfit [Petitioner] gets in here we will lose an awful lot of our orders." Lawler amplified this remark 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the explanation that "if they [Petitioner] got in there they would have trouble, probably strikes, and if there was trouble that, I [Adkins] believe he said , Boeing would pull the orders, because they wouldn 't stand for trouble, their work would be held up." 1 Lawler concluded the conversation by saying with reference to the pending election, "Well, I can't change you over, and for damn sure you can't convert me." Lawler did not contradict Adkins in any substantial respect.2 Petitioner argues that Lawler 's statement about possible loss of the Boeing con- tract was "calculated to influence the vote of Adkins" and was "a most effective instrument of employer coercion." I do not agree that this remark was coercive. It was nothing more than mere speculation by Lawler as to possible future events which might follow an election victory by the Petitioner . It may be true that Lawler intended to influence Adkins' vote but that is not objectionable . Mall Tool Company, 112 NLRB 1313. Virgil Suitt: Virgil Suitt testified about a lengthy conversation he had with John Lawler 3 to 4 days before the election . Toward the end of the employees' lunch hour as Lawler was walking through the plant , Suitt, who was with a small group of employees , asked Lawler whether he was checking up on production "to see how far behind we are before the CIO comes in." 3 This began a conversation in which Lawler said the only objection he had to the Petitioner was "work stoppage." When the lunch period ended the other employees returned to their work but Suitt continued his discussion with Lawler. The two talked for about 11/2 hours. Lawler explained the reasons for his opposition to the Petitioner while Suitt , who volunteered the information that he supported the Petitioner, argued in its defense . According to Suitt, among other things Lawler said to him was that if the Petitioner became the bargaining representative it would ask for a wage increase larger than the Company could afford to pay and that based upon the Petitioner's past performance it would call a strike regardless of the employees' wishes. Lawler attempted by citing "figures" to prove to Suitt that the Company was financially unable to give the employees a substantial wage increase . Also, Lawler said "that he had been to Boeing and that they wanted to know day -by-day progress of the CIO and Independent Union, and that if the CIO got in they would pull half of our contracts and give them to someone else so that they would have another source of parts in case we should have labor trouble ." Lawler indicated to Suitt his satisfaction with the Intervenor by telling Suitt that "one thing that he liked about the Independent Union , and that if the CIO got in that we couldn't have what he liked , to be one big, happy family, and he could come through the plant and talk to the people and be a member of them as one big, happy family, and if the CIO got in he couldn't do that." Finally, Lawler said that it was his intention to leave the Company if the Petitioner were to win the election. Lawler concluded the conversation with the remark that Suitt "was an intelligent man, that he was going to watch my progress , and that I was going places with the Company, and he would like to see me just five years from today." Lawler also testified about his conversation with Suitt . The Petitioner contends that resolving the differences in their testimony presents "an important question of credibility." With this I disagree. Both witnesses impressed me favorably with their apparent truthfulness . Suitt, a man of personable appearance , testified in a straight- forward and frank manner without any indication that he was coloring or em- bellishing his testimony to further his partisan interests . John Lawler likewise was a sincere witness. There was no attempt on his part to be evasive or to withhold information. He was no less cooperative when cross-examined than when questioned by the Employer's attorney. The discrepancies between Suitt's and Lawler's testi- mony are minor. Principally they are differences in the employment and use of language rather than in meaning. Thus, although Lawler did not recall saying that the only thing he had against the CIO was work stoppages, he testified that he said there was a likelihood of strikes 1 A substantial portion of the Company 's business is based upon subcontracts from Boeing Aircraft Corporation. 2 The principal difference in their testimony is that Lawler did not recall having said anything about Boeing canceling any contracts with the Company . But he testified it was possible that he said to Adkins "because of work stoppages or anything that would delay the production schedules , that Boeing would have to protect itself, and if necessary they mould have to take such action." ( The action referred to was "that Boeing was going to take the contracts out in the event we had a strike.") a According to Suitt, the reason for this remark was that a rumor had been circulating in the plant "that the CIO was so bad that if we got in we would go away behind schedule and lose all our contracts." AERONCA MANUFACTURING CORPORATION 497 or work stoppages if the CIO were to win the election. Lawler denied that he. said the CIO would demand a wage increase which the Company could not afford to pay. He testified that the two "discussed how it would affect the Company and what it would cost if a demand was made on us for a substantial rate increase" and that he invited Suitt to his office where he could more adequately show what Alle. Company's problems would be in trying to meet a demand for a large wage in- crease. Even assuming that Lawler's recollection was the more accurate, never- theless, this portion of the discussion would leave Suitt with the impression that Lawler had said, in effect, that the Company could not afford to make any sub- stantial upward adjustment of its wage scales. Similarly, Lawler denied that he made a statement to Suitt that "Boeing would pull its contract if the CIO got in," but testified that he told Suitt he had been to the Boeing plant and "they were con- cerned about our production schedules and our labor relationship, and they wanted to know very much in detail how that was going to affect their schedules, and if I could give them any substantial information, and any accurate information, so that if they had to do anything to readjust their schedules they could do so." Certainly, when considered together with the fact there had been propaganda about the plant that Boeing might cancel some of its contracts with the Employer should the Peti- tioner win the election, which Lawler admitted he might have confirmed to Adkins and other employees,4 it is understandable that Suitt's specific recollection of Lawler's statement in that regard was to the effect that Boeing would transfer half their con- tracts to other companies in order to insure an alternate source for parts if the Employer were to have labor troubles. The Petitioner argues that the above-described conversation reflects threats of reprisal and promises of benefit. I do not agree. Lawler's prediction that the Petitioner, if certified, would demand a larger wage increase than the Company would be able to pay and that the Petitioner would seek to enforce its demands by a strike is permissible campaigning. It does not connote, as the' Petitioner contends, that it would be futile for the employees to select the Petitioner, while with the In- tervenor as bargaining agent "they would have every chance to gain." Lawler's reference to possible loss of part of the Boeing orders also falls into the category of prophecy because the statement did not in any way indicate that the Employer would cause or aid such eventuality. Lawler's expression of satisfaction with the Inter- venor and his further statement that if the Petitioner were elected representative he might be denied the privilege of walking through the plant and visiting with the men is of no different character than a similar statement which the Board in Zeller Corporation, 115 NLRB 762, found unobjectionable. Also, unobjectionable was Lawler's intimation that he might leave the Company if the Petitioner won the election. The Falmouth Company, 115 NLRB 1533.5 Lastly, unlike the Peti- tioner, I do not interpret Lawler's compliment to Suitt as "a promise of future benefit as an inducement to vote against the CIO." Joseph Lower: Lower testified that the week before the election he had a brief exchange of words with Lawler during which the latter asked who was going to 4 Lawler testified as follows : TRIAL EXAMINER : During the period December 28 to January 18, 1956, did you make a statement to one or more employees, to the effect that if there was a strike stoppage at Aeronca, Boeing might pull some of its contracts it had with Aeronca Manufacturing Corporation? The WITNESS : If I may state in the words I made it? Q. (By Mr. Silberman.) Certainly.-A. Each time I made a statement like that, I made it in relation to work stoppages, because anything that would affect our delivery schedule, for example, if we could not get technical information to produce a part on time, that would affect our delivery schedule. If we could not get outside materials delivered to us on time, that would affect the delivery schedules. So it was important to tell the employees if we had a strike that would affect schedules. Boeing would cancel the contract, not because of the CIO, but because we did not meet our delivery schedules. s Rempel Manufacturing, Inc., 116 NLRB 1220, is distinguishable because in that case the company's president "made it clear to the employees that the future success of his Company was dependent solely on his active and personal promotion of the new product" so that his threat to leave the company if the employees voted for the union was equiva- lent to a threat that the employees would suffer a reduction in their earnings and even possible loss of their jobs. 450553-58-vol. 118-33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD win the election. Such casual inquiry, contrary to Petitioner's argument, I find is not coercive interrogation. The Liberal Market, Inc., 108 NLRB 1481, 1485. William Woolums: About January 10, 1956, Lawler initiated a conversation with William Woolums about the reason for the latter's complaint that he had been mistreated. Woolums, who had been a group leader, was downgraded the preceding month. According to Woolums, after he told his story to Lawler, the latter sug- gested that Woolums could file a grievance through the Intervenor, which then represented the employees, but Woolums explained that he chose not to do so. Lawler's reply which concluded the conversation was, "well, after the election is over, you stop in and talk to me." Lawler testified that it has been his practice to walk through the plant and converse with the employees. Sometimes the con- versations are initiated by himself and on other occasions by employees and the subjects vary from discussions of personal affairs to business problems. On the day in question, he spoke to Woolums and to another employee, Arnold Buchanan, because it had been reported to him that both employees had complaints about their treatment. The Company then had been having difficulty in meeting their schedules in the fabrication department and Lawler explained that his specific reason for ap- proaching Woolums and Buchanan was: "Usually if you are not getting out pro- duction you talk to the people and find ways to correct the problems." According to Lawler, Woolums complained that he had not been treated fairly when he was downgraded. Lawler testified that he referred Woolums' grievance to the personnel department and also told Woolums to take up the matter with the personnel de- partment. Lawler further testified that the conversation with Woolums drifted to the subject of the latter's background, education, and objectives in life. Lawler suggested that Woolums might promote his ambitions by taking a blueprint reading course offered to the employees by the Company or going to night school.6 The conversation concluded, according to Lawler, by his saying to Woolums, "If you are interested in talking to me about night school, I would be interested in the first place in trying to help you out, Bill." The divergence between the testimony of Lawler and Woolums reflects not so much any contradictions as it does the fact that each remembered different parts of their conversation more clearly. The Petitioner adverts to Woolums' testimony that the conversation concluded immediately after the discussion of Woolums' griev- ance with Lawler's statement, "Well, after the election is over, you stop in and talk to me." The Petitioner argues that the implication from this remark is that there would be no point in Woolums talking to Lawler after the election if the Petitioner won. However, Woolums' testimony refutes such construction of this remark, even if made,7 because Woolums testified that Lawler made it clear "he meant . . . to talk about the mistreatment I had and not about the election coming up." Furthermore, I credit Lawler's testimony that the invitation to Woolums for further conversation was related to their discussion about Woolums' career rather than his grievance.8 Accordingly, I find that Lawler's invitation to Woolums that they have a further conversation did not imply a promise of benefit conditioned upon the Petitioner's defeat in the pending election. The Petitioner's counsel further argues that the fact that Lawler initiated the conversation with Woolums about the latter's grievance "as well as his promise to help Woolums in the future to obtain a higher rate or by offering him an oppor- tunity to go to `blueprint' school or by talking to him privately about his assisting him in matriculating him in the night school, was calculated to influence Woolums' vote in the election by promise of benefit." Whether Lawler had such subtle purpose is a matter of conjecture. Lawler made no direct or indirect promise of benefit to Woolums and certainly nothing Lawler said was conditioned upon the outcome 6 Woolums offered no testimony either in affirmance or denial of Lawler's testimony that the conversation also included a discussion about the latter's background, education, and ambitions. 7 Lawler admitted that the conversation concluded with an invitation for Woolums to speak to him again. However, he did not testify that he suggested that any further dis- cussion be deferred until after the election. 8 It should be noted that the Petitioner does not suggest discrediting Lawler with regard to his testimony that the conversation dealt with Woolums' career and that he told Woolums to take up his grievance with the personnel department. In fact, the Petitioner relies on this testimony, in part, to support its further argument, discussed below. AERONCA MANUFACTURING CORPORATION 499 of the election or Woolums abandoning pro-Petitioner sentiments or activities. Ac- cordingly, the usual rule in appraising preelection conduct is to evaluate the specific language used and not to spell out a threat or objectionable promise by relating the words used to matters unexpressed or facts which do not appear to have im- mediate, specific, and cogent application so that it must be considered as modifying the verbiage. I find, contrary to the Petitioner's argument, that it has not been established that Lawler made any promises of benefit to Woolums in order to in- fluence the latter's vote in the election. Arnold Buchanan: Lawler spoke to Arnold Buchanan the same night and for about the same reason that impelled him to speak with Woolums. Apart from the variance in language used there was only small difference between the substance of the testimony of each about their conversation. Lawler testified: I approached Arnold, if my memory is correct, and I said, "Arnold, what ig the trouble with us here?" I believe he had a CIO shirt or some badge or some identification on him. I said, "I sort of feel I haven't got the right thing here, if you feel this way about us." He said, "No, John, you are not the fellow that is causing this difficulty. It is the foremen in this department. They are: not handling us right." I talked to him a little bit about that, and I said, "Well, I guess you know how difficult it is to get good men and good supervision,, and we are trying to do our best." I don't know, I think Arnold and I talked just generally ten or fifteen minutes. According to Buchanan, Lawler also said to him: Well, he says when he got in places that he found that he didn't like, that he usually went somewhere else; and he continued on and says that if the CIO got in there that he didn't figure he could get along with those fellows. . He says, "you know, I won't be around here if those fellows gets in." And I told him that was his privilege, and he said, "Well, if things go on, stop by my office sometime, if things go on as they are stop by my office sometime." Lawler was unable to remember having made these remarks, although he did not specifically deny them and did testify that if he had said anything about leaving, "I gave him the same answer I gave to the others." (See discussion of Suitt's testimony, supra.) The Petitioner argues, upon the basis of the foregoing, that Lawler was seeking to find out how he could "placate" Buchanan so that he would take off the CIO insignia and, when he learned that Buchanan's complaint was against poor super- vision, made a promise of benefit in that Lawler said the Company was going to do its best to improve its supervision. However, if a promise may be implied from this portion of their conversation it was unrelated to the outcome of the election. Lawler was apparently in agreement with Buchanan that supervision could be better and his acknowledgment of this fact together with his statement that the Employer was doing its best to improve the situation can hardly be interpreted as a proposed change in a condition of employment for the purpose of influencing the employees' vote in the election. The Petitioner also argues that Lawler's statement, "if things go as they are, stop by my office sometime," was a promise of benefit. I cannot read into this ambiguous remark a promise to Buchanan that "if Independent won, Buchanan could expect special consideration from Lawler." Finally, the Petitioner argues that Lawler's remark to the effect that he might leave the employ of the Company if the Petitioner won the election was a threat of discharge. The Petitioner's reasoning is: Since Lawler's speech of December 29 and his letters indicate that he was responsible for the present sound financial condition of the Company and that he had brought the Company from the edge of bankruptcy to solvency, the suggestion that he would leave if the CIO won carried with it a connotation that the plant could not survive if the CIO won the election. He was saying to the employees-now the Company has Lawler and prosperity, if the em- ployees choose the CIO, the Company will have no Lawler but ruin. This indeed is coercion of a sneaky sort. This reasoning is overly subtle and does not have realistic application in the arena of union elections. I do not find Lawler's remark was coercive. The Falmouth Company, 115 NLRB 1533.9 9 See footnote 5, supra. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX D INTERVIEWS WITH FOREMAN JOHN WISE Hobert Mullins: Mullins testified to a private conversation he had about Janu- ary 5, 1956, with John Wise. During the discussion, Mullins complained that he had not received a wage increase which the personnel office, at the time he was hired, promised he would be given upon the completion of his probationary period of employment. Wise said he would investigate the matter and the following week Mullins received the promised increase. The Petitioner argues that "the wage raise obtained by Wise constituted interference." There is no evidence of any connection between Mullins' raise and the election. The evidence indicates only that Wise saw to it that an oversight was corrected and Mullins obtained the benefit of an automatic wage progression which he had been promised and to which he had become entitled at the completion of his probationary period of employment some 2 or 3 weeks earlier. This incident, therefore, is not evidence of employer interference with the election. Mullins also testified that during his conversation with Wise the latter expressed his satisfaction with labor relations at Aeronca and voiced his complaints against the Petitioner. In sum, Wise suggested to Mullins that he support the Intervenor. The Petitioner does not allege, and I do not find, that Wise made any coercive remarks to Mullins. Walter Reynolds: Reynolds testified to a conversation he had with Wise about January 12, 1956. Wise's testimony with regard thereto conflicted in several respects with Reynolds'. Although I do not believe Reynolds was an insincere witness, Wise impressed me as being the more reliable witness. Accordingly, I credit Wise's version of their conversation. As in the case of Mullins, Wise in effect urged Reynolds to vote for the Intervenor and against the Petitioner. During their conversation, Reynolds said that "should the CIO not get in, he might as well look for another job." Wise made no reply to this. I cannot attribute any coercive implications to Wise's silence at this juncture in the discussion, particularly since Reynolds was an inspector and was not subject to Paint Foreman Wise's supervision. I find no evidence of coercion in the conversation between the two. Joseph Patterson: Patterson testified to a conversation with Wise which took place about 2 weeks before the election. Even if I were to credit Patterson' s entire account it comes to no more than that Wise by alluding to the possible dis- advantages of representation by the Petitioner was suggesting that Patterson support the Intervenor. However, for reasons discussed elsewhere in this report, I do not credit Patterson where his testimony conflicts with Wise's. I find nothing coercive in this incident. Vernon Walters: I credit Wise's denial that he interrogated Walters as to the latter's voting intentions. Wise did not deny Walters' testimony that about 8 or 10 days before the election he said to Walters, "If the CIO got in that they might have a strike and we would be laid off." Although this suggested to Walters that he vote against the Petitioner, for reasons already considered above, I find this remark was not coercive. APPENDIX E REJECTED TESTIMONY A. Because of failure to establish agency relationship An issue raised at the hearing was whether responsibility for alleged pre- election misconduct of six men may be attributed to the Employer. One of these men concededly was never in the Company's direct employ. Testimony was offered that twice on the night of the election William Ratchford, who is the chief Air Force inspector at the Company's plants, made statements to the effect that if the Petitioner wins the election he has orders to "pull contracts." 1 The testimony indicates that these remarks were heard by only four employees. The statement was first made by Ratchford in a conversation with Floyd Buchanan which was overheard by Buchanan's working partner, Ella Gilley. Both Buchanan and Gilley testified that they voted soon thereafter and there is no evidence that either repeated Ratchford's statement to any other employee before the polls closed. Laura Demerecz testified that she overheard Ratchford make such statement to an unnamed employee with whom she was returning to work after having cast her ballot and 1 These remarks signified that the Company would suffer a loss of business and would therefore be compelled to reduce its work force. AERONCA MANUFACTURING CORPORATION 501 did not tell of the incident to anyone before the polls closed. Although the Petitioner does not contend that the Employer was in any way responsible for Ratchford's conduct, or had an opportunity to disavow it, or even acquired any timely knowledge of it, the Petitioner argues that Ratchford's alleged threat, as in The Falmouth Company case, 114 NLRB 896, "so permeated the atmosphere surrounding the election as to render impossible the rational, uncoerced selection of a bargaining representative." I do not agree that the Falmouth case is apposite. In that case "the employees were, in fact, on all fronts barraged by verbal and written warnings" (The DeVilbiss Company, 115 NLRB 1164) so that "the election was held in the face of widespread fear that the Employer would close up the plant and move should the AFL win the election." In the instant case, the pur- ported threat was made to only 4 employees on the night shift (2 of whom had already voted) just prior to the closing of the polls and there is no evidence that the threat was communicated to any other employees. Thus, Ratchford's remarks, which had such limited currency, did not have any significant effect upon the results of the election. Morganton Full Fashioned Hosiery Company, 107 NLRB 1534, 1538; The Liberal Market, Inc., 108 NLRB 1481, 1485. Furthermore, as there is no evidence that Ratchford was acting in behalf of the Employer, the latter cannot be held accountable for Ratchford's utterances. The Petitioner asserts that certain remarks made by Richard Mather to Virgil Suitt constituted interference with the election. Although I do not agree that Mather's statements were objectionable, it is not necessary to consider them specifi- cally because any misconduct on his part cannot be attributed to the Employer. Mather is a clerk in the Company's personnel office. The Petitioner does not dis- pute this but argues that because it is necessary to pass through Mather's office to enter the office of Jack Linzie, who heads the Company's industrial relations department, that "is enough to bind the Company with statements he made on labor relations." Perhaps there would be some merit to this argument were Mather the sole occupant of an anteroom to Linzie's oice. However, the evidence shows that Mather occupies a general office with 3 or 4 female employees. In the circumstances, it is unlikely that an impression would be created in employees' minds merely from the location of Mather's desk that any special relationship existed between him and Linzie so that he was in a position to reflect management's views. I find no more significance, as it affected the results of the election, in Mather's remarks to Suitt than if they had been made by any other rank-and-file employee. The remaining agency issue, which was exhaustively litigated, concerns the status of leadmen. The Petitioner contends that Bynum Bruce, Gene Flint, Joe Heller, and Charles Heilman (sometimes spelled "Hillman" in the record), all of whom are leadmen,2 are supervisors so that their conduct may be attributed to the Employer. In its petition which initiated this proceeding, the Petitioner requested the inclusion of leadmen in the appropriate unit although at the same time it requested the exclusion of all supervisors. At the initial representation hearing in this matter, the parties, including the Petitioner, stipulated that leadmen should be included in the appropriate unit, but that all supervisors should be excluded. The Board accepted the parties' stipulation and included leadmen in the appropriate unit described in its Decision and Direction of Election herein. Now, inconsistent with the position it adopted at the inception of this representation case, the Petitioner contends that leadmen are supervisors. In effect, the Petitioner seeks to litigate in this hearing on the objections to the election a unit problem which should have been raised at the initial representation hearing. Despite the hearing officer's doubts as to the propriety of contesting in this supplementary proceeding a question already the sabject of the Board's decision in the same case, the parties, nevertheless, were afforded full opportunity to offer evidence at the instant hearing bearing upon the supervisory status of leadmen. The evidence shows that leadmen are included on the seniority list with other rank-and-file employees and spend 90 to 95 percent of their time doing the same kind of work as the other men in their respective groups. Because the leadmen are the top mechanics in each group, they are available to assist the other men with their work problems. In addition, leadmen make routine assignments of work. At the start of each shift, the foreman for each department distributes work orders to the leadmen who, in turn, reassign the work among the members of their respective groups. Leadmen also have authority to sign passes permitting employees to leave their departments temporarily.3 On the other hand, 2 Leadmen are sometimes referred to as group leaders or as section leaders. 3 There was evidence of 3 or 4 instances of the exercise of other purportedly super- visory functions by various leadmen. However, I am satisfied that these instances repre- sented mere sporadic deviations from the leadmen's normally limited authority. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leadmen have no authority to hire or fire employees, to transfer employees from department to department, or to issue reprimands, or to make effective recommen- dations in these matters. Leadmen are subject to the immediate supervision of the foreman and assistant foreman for their respective departments. Upon the basis of the foregoing, I find that leadmen, or group leaders, are not supervisors. N. L. R. B. V. Newton Company, 236 F. 2d 438 (C. A. 5); New York Shipping Association, Inc., 116 NLRB 1183; Nutone, Incorporated, 112 NLRB 1153, 1164; The Clinton Construction Company, 107 NLRB 946, 948; Hodgdon Brothers-Goudy & Stevens, 106 NLRB No. 211 (not reported in printed volumes of Board Decisions and Orders). Absent any other basis for attributing to the Employer responsibility for alleged misconduct by leadmen, their activities may not be considered in support of the objections to the election herein. Parenthetically, it may be observed that even were leadmen supervisors by reason of the technical definition in the Act they occupy so insignificant a position in the Company's supervisory hierarchy that it is improb- able that they are identified in the minds of the employees as spokesmen for man- agement. See Rheem Manufacturing Company, 114 NLRB 404, 405-406. B. Because of lack of credibility John Frank Robison: Employee John Frank Robison testified about events involving his foreman, Charles Barker. Barker was not called as a witness and therefore Robison's testimony is unrefuted. Shortly before the instant hearing Robison was downgraded, an action which he resented. Robison went to the Petitioner's office in Middletown seeking their assistance in his endeavor to obtain restoration of his previous grade. Then, for the first time, he revealed to the Petitioner the facts about which he testified at the hearing. On cross-examination, when Robison was questioned about the circumstances which prompted him to disclose the information within his possession to the Petitioner he was evasive. On direct examination, Robison testified that 4 or 5 days before the election Foreman Barker began a conversation with him. According to Robison, Barker specifically asked him how he intended to vote and his response was, "Well, I just come around and told him that was my business, I would vote to suit myself." However, on cross-examination Robison testified that the foregoing conversation occurred about 2 weeks before the election and possibly earlier. Later he testified that he remembered the election took place on the 18th but was unable to recall of which month. Then, in further contradiction of his testimony on direct examina- tion, he testified, that Barker asked, " `Who are you going to vote for? It looks like you have got a CIO badge on.' And I said, `Yes, I have,' and I told him I was aiming to vote for the CIO, the way I told him." Robison also gave a confused account of an incident wherein Barker assisted several employees in placing the Intervenor's insignia on T shirts. Despite the fact that no evidence was offered to contradict Robison, because he was evasive, confused, and self-contradictory and because I find his motive for making himself available as a witness in this hearing was vengeful, I place no reliance upon his testimony and therefore do not credit any of it. Billy Paul Winebarger: Employee Billy Paul Winebarger testified about a conver- sation he had with Employment Manager Wilbur Fisher. All significant facets of Winebarger's testimony were contradicted by Fisher. It is my opinion, upon con- sideration of all the testimony of both witnesses and their demeanor on the witness stand, that Fisher's testimony was the more reliable. Accordingly, I credit Fisher's denials of Winebarger's testimony. "M" System, Inc., Mobile Nome Division , Mid-States Corp. and Lodge 1243, International Association of Machinists, AFL-CIO. Case No. 16-CA-906.1 July 5,1957 DECISION AND ORDER On March 20, 1957, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that 1 The instant case was consolidated for the purpose of hearing with Case No. 16-RC- 1773 because substantially similar issues involving the Respondent's alleged interference 118 NLRB No. 61.