Surprenant Mfg. Co.

SURPRENANT MEG. CO. 507 All our employees are free to become or remain, or to refrain from becoming or remaining, members of Boot and Shoe Workers' Union, AFL-CIO, or any other labor organization. CUMBERLAND SHOE CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Seventh Floor, Falls Building. 22 North Front Street, Memphis, Tennessee , Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Surprenant Mfg. Co. and United Steelworkers of America, AFL- CIO. Case No. 1-CA-3978. September 11, 1963 DECISION AND ORDER On June 20, 1963, Trial Examiner William J. Brown issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of the complaint as to them. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown.] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.2 1 The Respondent's request for oral argument is denied as the record , exceptions, and briefs adequately present the issues and positions of the parties -In adopting the Trial Examiner ' s finding that the Respondent violated Section 8(a) (1) by interrogating its employees concerning the contents of statements furnished by them to Board agents , we also rely upon Winn-Dixie Stores, Inc, and Winn -Dixie Louisville, Inc . 143 NLRB, 848 Contrary to the Trial Examiner, Member Leedom would not find that Respondent vio- lated Section 8(a) (1) when it informed its employees that Respondent would "bargain from scratch" if the Union became their bargaining representative In his opinion, such statements did not contemplate withdrawal of any existing benefits pending the outcome of bargaining negotiations. Member Leedom agrees with his colleagues that the Respondent violated 8(a) (1) by stating that unionization would result in serious harm to the employees and by the re- marks relating to the closing of the plant , only because each statement occuried in a context of other unfair labor practices. 144 NLRB No. 51. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter sometimes called the Act, was heard before Trial Examiner William J. Brown at Worcester, Massachusetts, on February 19 to 21 and March 19 and 20, 1963. The charge was filed on November 7, 1962, by United Steelworkers of America, AFL-CIO, hereinafter sometimes called the Union; the complaint was duly issued by the General Counsel of the National Labor Relations Board through the Regional Director for the First Region on December 20, 1962 As originally issued, the complaint alleged that the above-indicated Respondent Employer, here- inafter sometimes called Surprenant, engaged in unfair labor practices defined in Section 8(a)(1) of the Act in the nature of interference, restraint, and coercion as to employees' statutory rights. The unfair labor practices were allegedly com- mitted in a series of speeches by Surprenant's director of employee relations, Paul Gordon, and by a notice posted October 15, 1962, on the employees' bulletin board. Respondent's duly filed answer denied the complaint's allegation of unfair labor practice. At the hearing all parties appeared and participated, being accorded full opportunity to present evidence and argument on the issues. At the outset of the hearing, Respondent moved for a continuance to await a tally of ballots and certification of results of an election held November 9, 1962 (further factual detail in this regard being set forth below), so as to allow consolida- tion of proceedings on objections to the conduct of the election with the instant case. The Trial Examiner denied this motion, accepting the contentions of the General Counsel that (1) there was no certainty as to whether or when objections would ever be filed in the representation proceeding, and (2) consolidation is, in the first instance, a prerogative of the General Counsel Respondent then moved to strike paragraphs 8(a)(2) and (3) and section 8(b) of the complaint on the grounds that they were insufficient to state causes of action i The Trial Examiner rejected Respondent's motion in all particulars on the grounds that (1) it was not timely since it came following the filing of an answer and after the opening of the hearing and (2) even if considered timely, it was lacking in merit and the allegations were sufficient to state causes of action. Before witnesses were called, the General Counsel moved to amend the com- plaint by adding the allegation that on or about February 15, 1963, by its attorney, Respondent interrogated employees concerning their affidavits and testimony to be given at the forthcoming Board hearing, thereby interfering with the processes of the Board and the rights of employees under the Act. Over the opposition of Re- spondent and after considering authority cited by the General Counsel, the Trial Examiner allowed the complaint to be amended in this particular and permitted the amendment of Respondent's answer to deny the factual allegations and the legal consequences material to this amendment of the complaint. After the Gen- eral Counsel completed the presentation of his case-in-chief, the Trial Examiner granted Respondent's motion to dismiss the complaint insofar as the allegations of paragraph 8(a)(3) of the complaint, discussed above, were concerned and denied Respondent's motion in other particulars. On resuming the hearing after a recess following the General Counsel's resting, the General Counsel moved to amend the complaint in two respects to specifically allege two types of conduct constituting unfair labor practices defined in Section 8(a)(1) of the Act and which, according to the General Counsel, were proven by evidence theretofore presented The Trial Examiner denied the General Coun- sel's motion to amend in these particulars At the close of all the evidence, Re- spondent moved again to dismiss the complaint and the Trial Examiner reserved I These paragraphs alleged interference within Section 8(a) (1) of the Act by telling em- ployees that those who were for the Union could "get the hell out," paragraph 8(a) (2), by warning employees that once the Union got in those who opposed it would meet with violence, paragraph 8(a) (3), and by a printed notice, warning employees that the coming of the Union would work to their serious harm, paragraph 8(b) SURPRENANT AUG. CO. 509 ruling on the motion . It is disposed of in accordance with the findmgs and recom- mendations contained below. Following the hearing, briefs were received from the parties. They have been fully considered. Upon consideration of the entire record herein, and on the basis of my observa- tion of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER As appears from the pleadings and evidence herein, Surprenant, a subsidiary of International Telephone and Telegraph Corporation, maintains its principal office and place of business in Clinton , Massachusetts , where it is engaged in the manu- facture, processing, sale, and distribution of insulated wire and cable. Respondent annually ships finished products valued in excess of $50,000, from its Clinton plant directly to points outside the Commonwealth of Massachusetts; it annually receives raw materials and supplies at its Clinton plant in amounts valued in excess of $50,000, directly from points outside Massachusetts . Respondent is, and has been at all material times, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED As appears from the complaint and answer and the evidence herein, the Union is, and has been at all material times, a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction to the issues Surprenant is, as mentioned above, engaged in the manufacture of insulated wire cable at its Clinton, Massachusetts , facility. It employs a work force of approxi- mately 1,200 nonsupervisory employees , fairly evenly divided between men and women employees . On August 2, 1961, an election was held at the plant, then owned and operated by an individual named Surprenant , in which the Communica- tions Workers of America and the Molders and Foundry Workers Union of North America competed. The election was not conclusive and while postelection proce- dures were pending, on August 10, 1961, International Telephone and Telegraph Corporation 2 acquired the Surprenant plant. On January 23, 1962, the results of the August 1961 election were finally certified, indicating a rejection of representa- tion by either union. In April 1962, the Steelworkers commenced a new organiza- tional campaign which culminated in the filing of a representation petition on Octo- ber 5, 1962. In the interim, following shortly upon the acquisition of Surprenant by I.T. & T., Paul Gordon was appointed director of employee relations on September 1. 1961. His principal assistants are Richard Kearney and Adriel Lemere , each bearing the title "Personnel Administrator." On October 15, 1962, a notice to all employees appeared on the bulletin board which discussed the pending organizational campaign and which included the state- ment that management believed that union representation would not work to em- ployees' benefit but to their serious harm , this latter statement being alleged in sec- tion 8 (b) of the complaint to constitute an unfair labor practice. On October 23, 1962, the Regional Director approved a stipulation for a consent election entered into among the three participating labor unions and Surprenant and providing for an election to be conducted on November 9, 1962. During the period October 31 through November 6, 1962, Paul Gordon made a series of 21 speeches to employees . In fact, the speeches consisted essentially of a single speech delivered 21 times to employee groups who were assembled in the auditorium of the plant according to a schedule designed to release employees in number sufficient to be accommodated in the hearing room and to present minimum interference with production . On November 7, the charge in the instant proceeding was filed by the Steelworkers. On November 8, 1962, Surprenant posted on its bulletin boards a "Notice to All Employees" referring to a charge by one of the campaigning unions to the effect that the Company had threatened to close the plant if the Union won and stating 2 Hereinafter sometimes referred to as "I.T. & T." 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positively that the Company denied the making of any such statement and asserting that if it had been made by a managerial employee it was without Surprenant's knowledge and was unauthorized. The Regional Director, notwithstanding the filing of the charge, proceeded with the balloting in the November 9 election and at its conclusion impounded the ballots. On December 14, Surprenant filed a complaint in the United States District Court for the District of Massachusetts seeking an order requiring the counting of the ballots. This complaint was dismissed by the district court for want of jurisdiction on January 31, 1963. Surprenant Mfg. Co. v. Bernard L. Alpert, Regional Director, 52 LRRM 2697 (D.C. Mass.) This decision was on June 4, 1963, affirmed by the U.S. Court of Appeals for the First Circuit. Shortly before the hearing in the instant case, Respondent's local counsel, Judge Richard Comerford, appears to have interviewed a number of employees concern- ing statements given to Board agents and their testimony to be presented at the Board hearing. B. The October 15 notice As indicated above Surprenant posted a notice on plant bulletin boards on October 15, 1962. It is in evidence in this proceeding as General Counsel's Exhibit No. 2. In addition to its caption and introductory and postliminary matters, the notice con- tains six paragraphs. The concluding sentence of the first paragraph reads, "Our sincere belief is that if a union were to represent you in our plant, it would not work to your benefit but to your serious harm." The General Counsel's brief, in support of the position that the publication of the matter outlined above constituted interference, restraint , and coercion , cites as authority Morris & Associates, Inc., 138 NLRB 1160; White Oak Acres, Inc., 134 NLRB 1145; and Cleveland Woolens, a Division of Burlington Industries, Inc, 140 NLRB 87.3 Respondent's brief asserts that the single sentence asserting its sincere belief that a union would work to employees' serious harm cannot be considered a threat when considered in the light of the bulletin board notice as a whole. Re- spondent asserts that the "sincere belief" is the clearest expression of an opinion to be found in the entire record. Justice and commonsense require that I accept Respondent's contention that the notice must be considered as a whole and that it would be improper to twist out of context and contort a part of the notice which might be intimidatory if it stood alone but which is so surrounded with other material as to make the statement in context entirely inoffensive. But it does clearly appear that the balance of the statement by no means allays whatever minatory significance attaches to the sentence in question. In the first place, the notice is utterly devoid of assurances that no reprisal would be exercised if the employees selected a union as their representative. There are no assurances that employees have the right to form, join, or assist labor organizations or that they may engage in self-organizational efforts apart from working time. The notice commences by stating that the Union's campaign is a matter of concern to the Company. Then, following the expression of the sincere belief that representation would work to employees serious harm, proclaims the Company's intent to use every proper means to prevent a union from becoming established. It makes it clear that union membership is not necessary for employment; it omits, however, assurance that union membership would not result in dismissal or other reprisal. It states that union members will not receive advantages or preferred treatment over nonmembers; it fails to assert that nonmembers will receive no ad- vantage over members. It requests that the Company be informed if anyone is put under pressure to join a union and assures employees that such would be stopped; it fails to mention that employees should report and the Company would stop pressure applied to employees at work to refrain from joining a union. I must, therefore, reject the contention of Respondent that the balance of the notice immunizes the reference to serious harm and requires the conclusion that the last sentence of para- graph 1 is harmless, inoffensive, and noncoercive. The question essentially is whether the labeling of a statement as a "sincere belief" suffices to constitute the matter in auestion an expression of "views, argument or opinion . (which) contains no threat of reprisal or force or promise of benefit." (Section 8(c).) But it cannot be that the Congress intended that an employer's 3 General Counsel 's brief refers to paragraph 6 of the October 15 bulletin as containing an improper no-solicitation no-distribution rule This was not alleged as an independent act of interference , restraint , and coercion in the complaint, however , nor was the promul- gation of such alleged rule in any way litigated at the hearing SURPRENANT MFG. CO. 511 statement "a union in our plant would not work to your benefit but to your serious harm" is basically any different from "our sincere belief is that a union in this plant would not work to your benefit but to your serious harm" except in those situations where it appears from all the circumstances attendant upon the statement that in truth and in fact the Company was expressing its "sincere belief" as an opinion rather than a statement of its position. In White Oak Acres, a printed notice purporting to state the Company's "position" contained paragraphs virtually identical with those complained of here. The notice in that case, after introductory matter quite similar to that involved in the case-at-bar in that it referred to the union's organizational campaign and a desire to state "the Company's position," continued by stating: (1) This matter is, of course, one of concern to the company. It is also, however, a matter of serious concern to you and our sincere belief is that if this union were to get into this operation, it would not work to your benefit but to your serious harm. (2) It is our positive intention to oppose this Union and by every proper means to prevent it from coming here. The Board approved the Trial Examiner's finding of interference in the clearly implied threat in the posted notice that if the Union came in "serious harm" would be suffered by employees as a matter of "company policy." In Morris & Associates, Inc., 138 NLRB 1160, where the posted notice informed employees that it was the company's "definite view that if the Union were to come in at the plant it would work to the serious harm of the employees," the Board, find- ing that such an expression of the employer's "definite view" was in no essential way different from that considered in the White Oak Acres case, found the posting of the notice to constitute a violation of Section 8(a) (1). Finally, in Cleveland Woolens, a Division of Burlington Industries, Inc, 140 NLRB 87, the reference in the plant manager's speech to "our definite view that if the Union were to come in here it would not help you and it could even work to your serious harm" was significant in finding a violation of the Act in that case. It is not to be concluded that the particular words "serious harm" in themselves constitute the sole criterion, no more than the words "sincere belief" constitute a guarantee of immunity for statements to follow. Appraising the October 15 notice in its totality and on the authority referred to above, it clearly appears to me and I find that the posting of the October 15 notice constituted interference, restraint, and coercion within the scope of Section 8(a) (1). C. The Paul Gordon speeches The complaint alleges that in the series of speeches to employees delivered by Paul Gordon in the period October 31 to November 6, 1962, Respondent interfered with, restrained, and coerced employees in their self-organizational rights by (1) threatening employees with loss of regular and overtime work opportunities if the Union won the election; (2) telling employees that those who were for the Union could "get the hell out"; (3) threatening that if the Union won the election the Company would discontinue existing benefits, and (4) threatening to close the plant if the Union succeeded. 1. The general format of the speeches The evidence reveals, and indeed there is no contest as to this matter, that Paul Gordon, Surprenant's director of employee relations, delivered a series of 21 ad- dresses to employee groups ranging in size from 37 to 73. These speeches were given in the plant conference room and employees were directed by their respec- tive supervisors to attend. Gordon addressed the groups giving essentially the same speech 21 times. He stood, most of the time, behind a lectern on which he had a prepared outline of topics to be discussed. He also used as "props" at some of the meetings pamphlets distributed by two of the competing unions in the then pending campaign; it also appears that in at least some of the speeches he used a blackboard on which he charted and explained the form of the ballot in the pending election. In delivering his series of talks, Gordon had before him, as noted above, an outline of topics. The subjects there listed were quite plainly basically designed to induce employees to refrain from supporting the labor organizations in the pend- ing campaign. It appears that Gordon in at least most of his talks covered all or almost all of the subject matters referred to in the outline. The outline had been prepared about October 22, 1962, by Gordon, local counsel, and labor rela- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions experts from Surprenant's parent corporation, I.T. & T. Gordon's assistant, Kearney, also contributed suggestions . Gordon's talk does not appear to have been memorized and different methods of expressing recurring ideas appear to have been employed at different meetings. There appear to have been a few questions asked by employees, Gordon's recollection being that there were one or two at most of the meetings, although he designed his outline to cover virtually all possible questions. The bulk of the testimony taken in this case concerned the contents of Gordon's talks. Respondent's brief asserts that noteworthy significance should attach to the fact that the General Counsel could produce only 13 witnesses out of a bargaining unit totaling 1,000. I do not attach such significance, nor do I make the alternative inference that the series of speeches were sufficiently effective to deter and intimidate prospective witnesses among the many hundred others who heard the speeches. Rather I find it necessary to appraise the testimony of those witnesses who did appear, making due note of the connection of some of them with the Union's campaign and of others with management affiliations. The question here is what was said by Paul Gordon in those speeches concerning which we have testimony. This matter was fully litigated, but litigated in the light of the complaint. Obviously a witness, whether called by the General Counsel or the Respondent, did not simply and boldly assert or deny that Gordon, e.g., "told Employees that those who were for the Union could get the Hell out." Rather, as is natural in litigation, they put flesh on the bones of their message and amplified their remarks so as to give the setting and context and thereby make more plausible the essential core of ,their contribution to the evidence. Appraisal of the testimony requires extended discussion, but discussion confined to the issues framed by the complaint. In other words the basic question is not whether Gordon delivered a series of unfair labor practice speeches but whether in the course of his speeches he made the specific threats and warnings alleged in the complaint. To that issue we now turn. 2. Threats to employees to deprive them of regular and overtime work if the Union won the election The evidence indicates that for some time prior to the series of speeches in the fall of 1962, the Company had maintained the practice of spreading employment among departments to the extent possible by temporary transfers of employees to departments where work was available when work slowed down or ceased in their own regular departments. There is no doubt upon the evidence herein but what Gordon in his speeches commented on this practice in the series of meetings in question. His speech outline contains as a topic to be discussed the steady employ- ment at Surprenant without permanent layoffs and the fact that no one has been sent home for lack of work except in the case of a few temporary layoffs. Donald R. McGuirk, leadoff witness for the General Counsel, attended the No- vember 2, 3:05 p.m., meeting. According to McGuirk, Gordon referred to the custom of transferring men from slack to busy departments to enable employees to get their regularly assigned 40 hours and said that if the Union became the bar- gaining representative, this could no longer be done. Harvey Peete, who attended the November 2, 2:05 p.m., meeting, testified that Gordon, referring to the existing practice of transfer between departments to en- able employees to get a full week's pay where work was slack in their assigned departments, said that if the Union got in he would not be able to continue that practice. Robert Timledge, who attended the 1:05 p.m. meeting on November 1, testified that Gordon referred to the existing practice of interdepartmental transfers and said that this could not be done if the Union were to get in. David Warren, who, with McGuirk, attended the 3.05 p.m meeting on Novem- ber 2, attributed to Gordon the statement that there were people who were getting 40 hours' work in even though 40 hours were not actually required and that if the Union got in an employee would be sent home regardless of whether or not he had completed his 40 hours. Paul Bliss also attended the 3:05 p.m. meeting on November 2. He said that Gordon told the assembled employees that if work gets slow in their departments, they are transferred around until things picked up, then returned to their regular departments. His recollection refreshed by being shown his pretrial statement, he recalled that Gordon said that if the Union got in the employee in such circum- stances would be sent home. Jack Berry, who attended the same meeting as Harvey Peete, attributed to Gordon the statement that if the Union got in, the existing practice of transfer between SURPRENANT MFG. CO. 513 departments to enable people to fill out their workweek would be discontinued and the people would be sent home. It appears however, that Berry also understood Gordon to say that the reason for this change would be because that is the way union contracts require operations to be conducted. For the Respondent, Richard Fancy, who attended the November 1, 1:05 p in., meeting, the same as that attended by Timledge, said that Gordon mentioned the existing practice of transferring employees between departments to enable them to get their 40 hours' work and stated that under a certain union contract this might not be possible. David Scobie, who attended the 3:05 p.m. meeting on November 2, testified as Respondent's witness. Scobie attributed to Gordon the statement that if the Union got in he might not have authority to transfer between departments. Elmore Slauenwhite, also in attendance at the November 2, 3:05 p.m., meeting, testified and attributed to Gordon the statement that the existing practice was that men work 40 to 46 hours a week and if there was no work in their departments, management tried to move them around so that they might get their hours in. Gordon, according to him, said that if the Union gets in here this might have to be discontinued because of job classifications. Vernie Robinson attended the meeting at 1 p.m. on November 1. He said that Gordon covered the subject of transfers from one department to another when work was slow in the employees' assigned department, and said that the existing practice was to transfer, but if the Union were to get in there would probably be departmental seniority and management would no longer be able to transfer them and they would be laid off. Respondent's witness, Paul Robert Gill, attended the 3.05 p.m. meeting on Novem- ber 2 He attributed to Gordon the statement that the past and existing practice was to transfer between departments but if there was a union in the shop, employees would be classified and could not be transferred from one department to another with the result that they would be sent home if their department ran out of work. Henry Schlegel, who attended the 2:05 p.m. meeting on November 2, testified that Gordon in discussing job classifications referred to the existing practice to place employees in different departments if their work happened to be slow to enable them to get their full week's work in whereas if the Union got in that might not be possible. Richard Kearney, who, as personnel administrator under Gordon's supervision, assisted in the preparation of the outline used in Gordon's talks, attended several of the meetings. He attended part of the November 1, 9:15 a.m , meeting and all of the meetings held on November 1 at 10:15 a.m., November 2 at 3:05 p.m. and November 6 at 1: 15 a.m. Concerning the question of transfers between depart- ments, he said that Gordon referred to the flexibility the Company had enjoyed whereby when work became slow on a job or a department, management was able to move people to other departments which were busy. He said that Gordon said it would be possible if a contract were negotiated that it would contain clauses which would restrict the Company from doing this, specifically mentioning such clauses as departmental seniority and job classifications. On cross-examination, the General Counsel's attorney referred to Kearney's pretrial statement in which he denied that Gordon said that there would be no transfers if the Union got in and people would be sent home. In fact Kearney's pretrial statement read into the record, contained a positive denial that there was any reference to the existing practice of transfers between departments. Adriel Lemere, Gordon's assistant in personnel administra- tion, attended part of the 8:15 a.m. meeting on Thursday, November 1, all of the 9:15 a.m. meeting on that day, and all of the 3:05 p.m. meeting on Friday, Novem- ber 2. He testified that at the Friday, November 2, 3:05 p.m., meeting Gordon said that if the Union got in because of the restrictions in their contract, management would not be able to transfer people from one department to another if work ran slow. According to Paul Gordon's testimony, it was in connection with the subject of job security and the history of steady, full-time employment at Surprenant that he discussed the existing practice under which management had the right and the flexibility to move people between departments so that if work was slow in an em- ployee's department he could be moved to another department where there was sufficient work. Gordon added in this connection that if the Union got in and the Company negotiated a contract with restrictive clauses such as departmental senior- ity, work assignment, or job classification clauses, this flexibility of transfer might not be possible with the result that employees would have to be sent home. He emphasized that this was not the Company's intention but it might be a result of negotiation with the Union. Gordon denied categorically that he flatly threatened that if the Union got in, these interdepartmental transfers would cease. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing constitutes the total of the testimony bearing on the subject of whether in the course of these speeches Gordon warned its employees that Surprenant would deprive them of regular work opportunities if the Union won the election. I cannot believe that Gordon's speech was actually circumscribed with all the nice safeguards contained in his testimony. The net effect of the testimony of the General Counsel's witnesses 4 however, is that Gordon delivered the message that the existing practice regarding departmental transfers would be jeopardized if the Union got in. But the evidence fails to preponderate in favor of the view that Gordon threatened discontinuance of the transfer practice as a reprisal; rather the evidence indicates that he used the argument that departmental seniority, a creature of union agreement, might prevent continuance of the existing practice. The cases cited in General Counsel's brief are inapposite. In both California Lingerie Inc., 129 NLRB 912, and Winchester Electronics, Incorporated, 128 NLRB 1292, there was no indication that the discontinuance of transfers was linked to a union agreement. I find on the evidence here that it was clearly stated as a possi- ble disadvantage arising from union agreements. This is no more than forceful argumentation. I find the evidence insufficient to support a finding that Gordon threatened discontinuance of transfers or deprivation of regular work opportunities. With respect to the alleged threats of loss of overtime work opportunities if the Union won the election, this subject was also listed among those set forth in Re- spondent's Exhibit No. 2, the outline of the talks, for discussion. The outline refers to certain problems in connection with the maldistribution of available overtime and it appears that Gordon discussed this subject, conceding that there had been some inequities but assuring his audiences that this was a matter in the process of correction. In addition to the foregoing, the outline refers to overtime as dependent on the Company's volume of business and not a matter which union organization can bring to a plant. With respect to the complaint's allegations as to threats of loss of overtime oppor- tunities, the General Counsel's brief points to the testimony of a single witness, McGuirk, who testified that Gordon said that his hearers should not think that the Union could necessarily get them more money because most of the men who are now working 46 hours a week would, if the Union gets in, most likely be working only 40 hours. Respondent witness Fancy testified that Gordon referred to the present daily over- time basis and said that if the Union got in this would be up for negotiation. Slauen- white attributed to Gordon the statement that the Union would see to it that available overtime would go to the shop steward for the department, irrespective of seniority of other employees. Gordon, himself, asserted that he raised the rhetorical question: "Do Unions create overtime9" or "Will Unions keep the overtime we now have?" and answered it merely by pointing out that overtime was completely depend- ent on the volume of business. Here again I cannot believe that Gordon was quite as restrained in his speeches as his testimony would tend to indicate. I believe it shows rather that Gordon after raising the rhetorical question as to whether they would keep the overtime they then had, answered it by saying that men would be sent home after 40 hours' work to avoid the 50 percent premium on top of the union wage scale (which Gordon ad- mittedly referred to in his speeches as higher than Surprenant's but lacking Surpre- nant's security). In reaching this conclusion I am influenced by the testimony of Respondent's witness, Vernie Robinson, who referred to Gordon as mentioning that the employees had been enjoying overtime practically all the time since I.T. & T. took over the Surprenant operation. He was unable, however, to recall how Gordon "followed through" on that subject. It appears from the cross-examination of Robinson that Gordon's discussion of the subject of overtime quite plainly was in some way related to the fact that whereas it had been enjoyed in the past, with respect to the possibility of the Union coming in as the witness put it "there must have been some comparison . . . ," the exact comparison however he was unable to recall.5 4 Only Warren and Bliss appear to charge that Gordon flatly said that if the Union got in employees would be sent home within 40 hours Although they were impressive wit- nesses, I think the weight of the evidence is that Gordon referred to union contracts in this regard. 5Kearney and Lemere testified that Gordon merely explained that the advent of the Union would not in itself create or insure continuation of overtime but that overtime would be dependent upon business conditions . I cannot believe their accounts that the discussion was so innocuous. SURPRENANT MFG. CO. 515 In accordance with the analysis of the evidence set forth above, I find and con- clude that Gordon threatened the loss of overtime if the Union came in. Thereby he transcended legitimate persuasive efforts and engaged in interference as defined in Section 8 (a) (1). 3. Statements to employees that those who were for the Union could "get the hell out" The General Counsel's brief asserts that witnesses called by the General Counsel established that in the course of these speeches, Gordon said that employees who were unhappy with Surprenant's management and wanted a union so badly should "get the hell out." The brief asserts that the evidence warrants application of the doctrine set forth in Lee-Roivan Manufacturing Company, 129 NLRB 980.6 Re- spondent's brief asserts that even if sustained by evidence, the allegation in the complaint in this regard is not sufficient to state a violation of Section 8(a)(1). Respondent further asserts that McGuirk was the only witness who attributed to Gordon the statement that union adherents could "get the hell out." The evidence of witnesses called by both parties establishes that as a part of his preliminary remarks Gordon explained that the Company had the right to present its views on the issue of organization by the unions then competing. He apparently referred to the fact that if any employees felt he was invading their privacy they were free to leave. This would indeed have been a natural occasion for him to use the phrase "get the hell out" and, if used merely as a method of emphasizing the com- plete freedom of employees to remain and listen to his remarks or to depart, con- ceivably could amount to no interference with employees' concerted activities in any way. McGuirk testified that at the outset Gordon said he was there lo, discuss the union activities and if he was invading anybody's privacy they were free to leave. Ul- timately however, according to McGuirk, Gordon banged on the lectern and said, "Those who want a union so bad why don't you get the hell out and leave us alone and go somewhere else where they have a union." McGuirk candidly conceded, however, that he was unable to clearly recall whether Gordon informed employees that they should "get the hell out of the room" if they did not want to hear his remarks or whether they should "get the hell out of" Surprenant's employment and go elsewhere where there was a union that would suit them. Warren said that Gordon referred to some people as being supporters of the union and that if they were so unhappy at Surprenant he raised the question as to why they did not leave. Rouleau testified to similar effect as Warren, that in the course of his speech Gordon said that if Surprenant employees did not like it with- out a union they should go some place else where there was a union. Gordon testified that he commenced each meeting by explaining the purpose of the assemblage saying that he had no intent to invade the privacy of employees and that if anyone wished to leave, they were perfectly free to do so and go back to their work. Kearney and Lemere corroborated Gordon on this point also Gill also testified that Gordon opened the speech with a casual remark that if he was invading anybody's privacy they could leave and this essentially was the testimony of employer witnesses Schlegel, Slauenwhite, and Fancy. The question here of course is whether the evidence preponderates in favor of a finding of fact that in one or more of the speeches delivered by Paul Gordon, he told employees that those who were for the union could "get the hell out of" Surprenant's employment. It seems quite improbable to me that in a series of speeches as carefully prepared and carefully delivered as these undoubtedly were, Gordon would have made such a blunt statement to any of his audiences. He un- doubtedly knew that there were a substantial number of union adherents (at least 30 percent of the work force), sprinkled among his audiences and that he would be accountable for his words. Even the witnesses for the General Counsel when their testimony is considered in its entirety, compels-me to the view that Gordon quite plainly did not say that union supporters could "get the hell out" of employment with Surprenant. A closer question on the evidence is whether he told his audience that those who were union supporters could, if they wished, "get the hell out" of the meeting at which he proposed to discuss the company side of the organizational program. I find that the evidence preponderates in favor of the conclusion that what Gordon said on this occasion was that*if anyone in his audience did not want to hear what 6 There company officials unlawfully interrogated an employee in the plant office and offered to help him find employment elsewhere if he were dissatisfied The case is not in point on the record here. 72T-083-64--vol. 144-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had to say, namely, management 's side of the picture, they were free to leave the room. I find unnecessary to decide whether he used the work "hell" in con- nection with this invitation . The evidence plainly does not sustain these allega- tions of the complaint. 4. Warnings to employees that if the Union won the election the Company would discontinue benefits and "bargain from scratch" There is no doubt on the evidence herein but what Gordon made reference to existing employee benefits with emphasis on the improvements instituted since I.T. & T. took over from the original Surprenant owners. The outline of his talks contains as a topic for discussion his anticipation that union propaganda would in- clude the argument that existing benefits were substandard and the way to correct this condition would be to vote in favor of umon representation in the forthcom- ing election . His outline also indicates that his speech was designed to include reference to the fact that such promises were by no means assurances of delivery and that if the Union succeeds in securing representation rights, there is a question as to whether "everything we have" will be kept in view of the fact that every- thing becomes negotiable. Gordon's testimony is that he detailed the benefits I.T. & T. installed subsequent to its purchase of the properties with specific reference to the pension plan , the sick- ness and accident program, the 3-week vacation plan, pay for jury duty and military leave, and the numerous recreational programs instituted by the Company. He said that he asserted that if a umon got in , all of the programs he mentioned would be subject to negotiation and that union representation did not necessarily mean an improvement in benefits , but that whatever happened after representation was se- cured would be the result of negotiation . This testimony of Gordon is generally confirmed by the testimony of Robinson who said that Gordon named the benefits instituted since IT. & T . took over from Surprenant and said that they would all be open for negotiations if the Union succeeded in the election. For the General Counsel , McGuirk said that after reviewing the benefits which were given employees at little or no cost , Gordon said that if the Union should win and represent the employees , the benefits voluntarily given by I.T. & T. would cease. McGuirk denied that this was stated by Gordon to be a possible conse- quence of negotiation of a collective-bargaining agreement. Harvey Peete testified that if the Union secured representative status, the existing benefits would be dis- continued and the employees would have to start from "scratch"; on cross- examination be persisted in his account that Gordon said that existing benefits would be dropped . Timledge's account of Gordon 's remarks in this regard were that after referring to the benefit improvements established by I.T. & T., Gordon said that if the Union were elected , they would have to start negotiation from the beginning. Iris Wright said that Gordon asked the question rhetorically as to whether existing benefits would be kept and answered it in the negative , saying that there would be negotiations between the Union and the Company for other benefits. Witnesses for the Respondent had varying accounts of Gordon 's remarks on the subject of the status of existing benefits. Richard Fancy confirmed that Gordon listed some of the existing benefits and said that future benefits would have to be negotiated but according to Fancy, Gordon said nothing about losing existing bene- fits. He did concede, however , that Gordon said that in any bargaining Surprenant would put up a stiff battle . According to witness Scobie, Gordon said that all ex- isting benefits would continue and that any additional benefits would be negotiated through the Union. Robinson recalled that Gordon adverted to the benefit improvements since I.T & T. had come to the location and said that if the Union got in, the existing benefits would probably be all up for negotiations. Irene Doran testified that Gordon referred to existing benefits and the improve- ments instituted by I.T . & T., and said that as time went on the benefits would probably get better. Gill recalled Gordon referring to the improvement in the benefit program since I.T. & T.'s advent to the plant and testified that nothing was said by Gordon about benefits being taken away if the Union won the election. Schlegel attributed to Gordon the statement that the benefits that had been given employees had been given by the Company and nobody else could give them. Fur- ther, that they would be negotiated through him and that, according to Schlegel, "the bargaining could be hard." This latter point about the bargaining being hard was also attributed to Gordon by General Counsel's witness Kuniewich , who said that Gordon said that IT. & T. were hard people to bargain with , that strikes did not bother them , and that the Surprenant facility was a matter of relatively small moment to I.T. & T. SURPRENANT MFG. CO. 517 The evidence in my judgment quite clearly preponderates in favor of the con- clusion that at least at some of these meetings Gordon plainly conveyed the mes- sage that a consequence of selection of the Union would be the discontinuance of existing benefits and a "start from scratch." The coercive effect of this utterance is plain. See Marsh Supermarkets, Inc., 140 NLRB 899. In concluding that Gordon threatened "bargaining from scratch," i.e., discontinuance of existing benefits, I place reliance on his own testimony that all benefits would be up for negotiation and the credited testimony of witnesses McGuirk, Peete, Timledge, and Iris Wright. I am also influenced by the testimony of Kuniewich for the General Counsel and Schlegel for Respondent that Gordon said I.T. & T. would be "hard" to bargain with. 5. Threats to close the plant if the Union got in It plainly appears on the evidence herein that in the course of his addresses, Gordon referred to the possibility of the plant moving or closing. Respondent's brief concedes this reference and asserts that Gordon discussed the subject in detail. His own testimony is that toward the latter part of his discourse he reviewed the financial picture of the Surprenant operation with particular reference to I.T. & T.'s investment in the property and some of the factors that tended to make the invest- ment of somewhat questionable value, pointing to delays in the delivery schedule and a relatively high scrap rate in the plant. He pointed out to his listeners that if the delivery schedule did not improve, their employment would be imperiled be- cause the Company's competitive position would be jeopardized. He called their attention to the fact that whereas Surprenant had previously enjoyed 90 percent of the Teflon market, at the present time there were several competitors bidding against Surprenant for the available business. However, he denied saying that if the Union got in the plant would be closed or moved. On cross-examination Gordon conceded that he expressed to employees his opinion that union representation would not help the competitive situation. In discussing the possibility of excessive demands from the Union, Gordon, according to his testimony, said that if the Company could not afford to meet them or did not choose for economic reasons to meet excessive union demands, it would be very possible that the plant could close or move for economic reasons. Gordon testified that he used substantially the same language on this point at each of the 21 meetings. Respondent witness Fancy testified that Gordon referred to various rumors in- cluding the rumor of the possibility of the plant closing if the Union won the election. He asserted that Gordon said in regard to this rumor that the plant would not shut down if the Union got in and that the plant would not be moved if the Union got in. Scobie recalled Gordon mentioned the closing of the plant as an event that could occur if a sufficient amount of orders did not come in so that the Company could not operate on a profit. Robinson gave his recollection of Gordon's words as "He didn't specifically say this plant would close" but he did recall that Gordon referred to the substantial investment by I.T. & T. in the plant and the fact that if the Union came in and the costs of running the Company became prohibitive, the stockholders would want to put their money elsewhere. Irene Doran, Respondent's witness, gave as the substance of Gordon's speech that "Things could change . if the pressure got too great, that they couldn't meet the competition of the market, things could happen." On cross-examination she testified that Gordon said that if the pressure got too great the Company could move as other plants in the area had, the only qualification being, according to her, that Gordon made this on the basis of inability to compete on the market. Gill at first denied that Gordon threatened to close the plant if the Union got in, but on cross-examination said he could not recall Gordon discussing rumors that the plant would move. He later said that Gordon stated that if because of management's rejection of excessive demands a strike resulted, then Surprenant might be forced to close. Respondent witness Schlegel recalled Gordon discussing other plants in the Clinton area that had been unionized and subsequently moved out of town because they could not profitably operate due to excessive union demands. According to him, Gordon said that any plant that could not operate on a profit would have to close its door. Lemere denied that Gordon stated the Company could move out of the Clinton area if demands from the Union were excessive. For the General Counsel, Paul Bliss testified that Gordon referred to the difficulties of running a business profitably and said that if the business dropped, Surprenant could pick up and move out. Similarly Alice Dupree said that Gordon referred to a neighboring employer where union rates were relatively high, but that company had been forced to close and followed by saying that if it became economically impos- sible for Surprenant to operate they would think nothing of picking the plant up and 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moving it elsewhere. According to her, he referred to a plant some 40 miles away engaged in a similar type of operation as the Surprenant plant. Alice Neault also attributed to Gordon the statement that if the Union put the plant under pressure it could be moved. She also recalled Gordon referring to a neighboring plant in Connecticut or Rhode Island and to the fact that some men from Surprenant's vinyl extrusion department had already visited the other plant. Iris Wright attributed to Gordon the statement that if negotiations failed, the Company could close down and management could afford to keep it closed longer than employees could afford to stay out of work. Finally Charles Kuniewich said that if I.T. & T. could not see its way to grant the Union's demands, they would either be forced to shut the plant down or let the people go out on strike. There is little real conflict in the evidence herein nor can there be any doubt but that Gordon intended to and did convey to his audiences the message that if the employees selected a union in the forthcoming election, the road of bargaining would not be a smooth one and that if the Company did not see its way to acceding to the Union's demands it could regard them as excessive, a consequence of which would be a decision to move the operation elsewhere or to shut down Surprenant. To me it is abundantly clear from testimony of numerous witnesses on both sides that Gordon's conjoining the possibility of closing with the certainty of "hard bargaining" and the numerous instances of other unionized plant closings in the area, was designed to and probably did deliver a death blow to organization. It amounted to a serious interference with employees' rights to self-organization, and constituted a violation of Section 8(a)(i). The mild and indefinite notice posted November 8 is not ade- quate to dissipate the effect of Gordon's series of various hard-hitting statements, suggestions, and insinuations of plant closing. D. The interviewing of General Counsel's witnesses The complaint was amended with leave of the Trial Examiner, at the hearing to include the allegation that Respondent interfered with the Board's processes and the rights of employees under the Act by interrogating employees on or about February 15, 1963, concerning their union sympathies, their affidavits furnished to Board agents, and testimony to be given at the forthcoming hearing in the instant case. Respondent's brief takes the position that it would not dignify these allegations by an extensive analysis of testimony on the subject. General Counsel's brief, some- what less cavalier, refers to the testimony of three witnesses and the authority of five cases. Robert Timledge, according to his testimony, was called to the plant office on February 15, 1963, and introduced to Judge Comerford, Respondent's counsel. Judge Comerford made it quite plain to Timledge that Timledge did not have to speak to him and if he elected to speak he could refuse to answer any particular questions. In addition to interviewing Timledge as to his recollection of Gordon's speech, Judge Comerford asked him if he had spoken to Board agents and whether he had made a statement. When Timledge said that he had sworn to and signed the statement, Judge Comerford asked him if he would be willing to tell him what was in it. Judge Comerford also asked Timledge whether he had been served with a subpena. David Warren was called to the personnel office on the same day and introduced to Judge Comerford who, after assuring him of his freedom to refuse to answer, asked him if he had talked with the Board's investigator and whether he had signed a statement. Judge Comerford then asked him if the would be willing to tell him what was in the statement. Warren again asked Judge Comerford whether he was free to speak or not and was told that he was, whereupon Warren told him some of the matters related in his testimony. Marie Kobus was called to the front office at the Surprenant plant on February 15 to talk to Judge Comerford. He told her that she was free to answer or refuse to answer questions and asked her whether she was under subpena. Judge Comerford asked her whether she had given an affidavit to the Board agent. According to her, Judge Comerford said that she did not have to tell him what was in the statement if she did not want to but she volunteered to tell him. Respondent presented no evidence in contradiction of the testimony referred to above. In accordance with the uncontradicted evidence I find that on February 15, Respondent, by its counsel, Judge Comerford, did in fact interrogate employees concerning the contents of statements furnished to Board agents. Decisions of the Board establish this as an unfair labor practice within the scope of 8(a)(1). See particularly Hilton Credit Corporation, 137 NLRB 56, and Texas Industries, Inc.; et al., 139 NLRB 365. SURPRENANT MFG. CO. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 519 The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above, that Respondent has engaged in unfair labor practices defined in Section 8 (a) (1) of the Act, I shall recommend that Re- spondent be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By posting a bulletin board notice stating its position to include a sincere belief that the coming of a union would work to employees serious harm and by the series of speeches in which Respondent warned employees that it would deprive them of overtime work opportunities, discontinue existing benefits, and close down or move its Clinton plant if the Union secured representation rights, Respondent engaged in unfair labor practices constituting interference, restraint, and coercion as defined in Section 8 (a) (1) of the Act. 4. By interrogating employees as to the contents of affidavits furnished Board agents, Respondent engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent, Surprenant Mfg. Co., its officers, agents, successors, and kassigns, shall: 1. Cease and desist from: (a) Warning or threatening employees it would deprive them of overtime work opportunities, close or move the plant, or discontinue existing benefits if the Union succeeds in securing representation rights. (b) By bulletin board notice or otherwise stating to employees that the coming of a union would work to their serious harm. (c) Interrogating employees as to contents of their affidavits furnished to Board agents. (d) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their rights under the Act. 2. Take the following affirmative action which is found to be necessary and ap- propriate to effectuate the policies of the Act: (a) Post at its Clinton plant copies of the attached notice marked "Appendix." 'i Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being signed by an authorized representative of Respondent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. 7In the event that this Recommended Order is adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director, in writing, within 20 days from date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith .8 8In the event this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT by speeches or publications of any kind threaten to close or move the plant, eliminate existing employee benefits, deprive employees of overtime work as consequences of United Steelworkers of America, AFL-CIO, or any other union securing rights of representation at this plant. WE WILL NOT post or distribute company notices referring to serious harm as a consequence of union representation. WE WILL NOT interrogate employees concerning statements given to agents of the National Labor Relations Board. WE WILL NOT in any like manner interfere with employees' rights under the National Labor Relations Act, as amended. SURPRENANT MFG. CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Standard Oil Company of California, Western Operations, Inc. and International Union of Petroleum Workers, AFL-CIO. Case No. 21-CA-5045-1. September 11, 1963 DECISION AND ORDER On May 17, 1963, Trial Examiner Martin S. Bennett issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 144 NLRB No. 61.