Jervis Corp.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record and bearing in mind particularly (1) the sharing of control of certain aspects of the working conditions of the licensee's employees as provided in the license agreement and the rules and regulations; (2) the evidence of actual control of wage rates as detailed above; and (3) the provision in the rules and regulations prohibiting the continuance of labor disputes involving the licensees- we find that K-Mart is a joint employer of the employees in each of the licensed departments.8 We find, in accordance with the stipulation of the parties,° and our findings above, that the following employees of K-Mart and its licensees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and part-time employees, including employees of K-Mart and those of its licensees, employed at K-Mart's San Fernando, California, store, including selling, nonselling, and office clerical employees, but excluding professional employees and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.]" 8 Esgro Anaheim, Inc., 150 NLRB 401, and cases cited supra, footnote 6, relied upon by R-Mart and the licensees , are, in our opinion, inapposite. 8 The parties stipulated that a single -store unit was appropriate and that the inclusions and exclusions listed in the petition herein were also correct. iu An election eligibility list, containing the names and addresses of all the eligible voters, must , be filed by the Joint Employers with the Regional Director for Region 31 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circum- stances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. Jervis Corporation, Bolivar Division and John David Craft Jervis Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO Jervis Corporation and International Union , United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO, Petitioner. Cases 26-CA-2019, 2065, and 26- RC-2317. June 13,1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On December 20, 1965, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, 159 NLRB No. 8. JERVIS CORPORATION 263 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Deci- sion. He further found that certain conduct of the Respondent had interfered with an election held on March 17 and 18, 1965, and recommended that it be set aside and a second election held. There- after, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Union filed cross-exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 Trial Examiner's Decision, the exceptions and, briefs, and-the entire record in these cases, and hereby adopts the findings,' conclusions, and rec- ommendations 2 of the Trial Examiner with,the following additions, modifications, and exceptions. . , , 1. The Trial Examiner concluded, and we agree, that the Respond- ent violated Section 8(a) (1) of the Act by unlawfully interrogating and threatening employees, by promising benefits, and by creating the impression' of surveillance of union, activities. In adopting' this con- clusion of the Trial Examiner, we do not necessarily endorse all of his extensive commentary, and, observations,,but rely :specifically on the following conduct : , , • • . ' ' „ . 1. (a) As to interrogation, Supervisors Derryberry, Searles, Sledge, and Farrell, from December 1964 to March 1965, questioned a num- ber of employees, not only about their union, affiliation' or allegiance, but also about their knowledge of '.the union "affiliation of other employees: , . (b) As to threats, the Respondent warned the employees that there would be a -reduction in jobs and a•,possibility that- it 'would move its operations from Tennessee to Mississippi if the Union won the elec- tion. ' This was conveyed, by the Respondent's president,in a speech i No specific exceptions were filed to any of the Trial Examiner's findings relating,to the Union's objections to the election . We adopt pro forma his findings that there was no merit in the Union's objections as to the campaigning by supervisors during the preelec- tion period , the antiunion parades throughout the plant Immediately preceding the elec- tion, the wearing of antiunion electioneering signs in and around the voting area during the election , the location of the voting area in the plant which enabled unauthorized per- sons to observe those voting, and the display in the plant of antiunion banners and signs. However, we do not adopt the Trial Examiner 's disposition of objections which are in- consistent with our findings that the conduct In question was violative of the Act 2 We find no merit in contentions by'the"Respondent and the General Counsel that var- ious credibility findings of the Trial Examiner are erroneous as-the clear preponderance of all the relevant evidence does not demonstrate that the credibility findings are Incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3). 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD put on phonograph records which were distributed to all the employ- ees, played over the local radio station twice a day on the day of the election and the two preceding days, and broadcast on the plant's loudspeaker system. In addition, Supervisor Farrell cautioned employees that, if union activity continued, "All of us would be look- ing for a job," and stated that the Respondent would not bargain with the Union even if it won the election.3 Supervisor Baker, in distributing to a group of employees "Vote No" signs, told employee Burgess, whose union affiliation was known, "You could be made to change your mind." (c) As to promises of benefit, Supervisors Derryberry and Sledge separately advised employee Littlejohn, an active recruiter for the Union, that his future would be bright if he abstained from union activity, Derryberry specifically predicting that he would be pro- moted to foreman in a year. (d) As to creating the impression of surveillance of union activi- ties, Supervisor Searles, in trying to elicit from employee Catherine Mae Ross information about the activities of other employees, warned her, "We've got ways of knowing. We know everybody that's signed cards." 2. We find merit in the General Counsel's exceptions to the follow- ing determinations made by the Trail Examiner : (a) The Trial Examiner found that Supervisor Cranes told employee Kiestler, in response to a question concerning the closing of the plant if the Union won the election, ". . . if we lose our con- tracts, there would be no other alternative but to move." The Trial Examiner concluded, however, that this statement was not "a threat to move but a speculation on the possibility that, if the company lost its contracts, it would move." In light of the threats to move in the event of a union victory, made by the president and various super- visors of the Respondent, we find that this reply of Cranes, which interjected for the first time the question of losing contracts, was a similar threat and, therefore, a further violation of Section 8(a) (1) of the Act. (b) As the Trial Examiner found, employee Whitten testified that he overheard Supervisor Baker tell an employee that the Respondent would move if the Union came in, that "We left Memphis, didn't we, to keep from being organized and we'll leave Bolivar." Although the Trial Examiner does not discredit this or other testimony by Whitten, he stated that he disregarded it on the grounds that the employee to whom the statement was made was unidentified, and 8 Although the Trial Examiner found Farrell's last statement to be an unlawful threat, he failed , apparently inadvertently , to include this in his ultimate findings of violations of the Act. JERVIS CORPORATION 265 that "Whitten did not participate in this conversation and there is no way to assess or weigh the conditions under which or the context in which the alleged remark, if made, was made." The identity of employee Tranum, to whom the remark was made, is in fact clearly established in the record, in part through questioning by the Trial Examiner. Since testimony concerning the remark was uno'bj ected to, is clearly admissible, and is undenied, it cannot be disregarded. In view of the fact that an employee overheard the remark, that the meaning and intent of the remark is clear, and that it is the same type of remark that various supervisors were making to employees, we find that it constituted a further threat violative of Section 8 (a) (1) of the Act. (c) The Trial Examiner found that the Respondent, in a speech delivered in the plant on February 15, 1965, copies of which were thereafter mailed to each employee, announced its intention to build a new cafeteria and to institute a job evaluation program on March 1, 1965 which would result in a number of wage increases. The Trial Examiner concluded that these announcements could not have influenced employees because they were "only casual observa- tions of continuing progress being made and confirmation of informa- tion already in the possession of the employees," and, therefore, that they did not constitute unlawful promises of benefit. The General Counsel contends that any information employees may have had about such plans was the product only of vague rumors; that the Respondent's official release of such information, accompanied by antiunion statements, was made at the height of the Union's organi- zational campaign; and that the Respondent failed to explain why the first official announcement of these plans occurred at the time it did. Accordingly, the General Counsel urges that the Respondent's announcement constituted an unlawful promise of benefit. The Trial Examiner found that the Respondent first considered the construction of a new cafeteria in January 1964, just 4 months after the opening of the plant here involved. The Respondent asserted that it was exploring the possibilities of such construction at least 8 months before it was annuonced, but we note that the announcement, made at the height of the Union's campaign, was also made prior to the letting of bids and even before the financing was arranged. Moreover, the announcement was made in a context of threats, conveyed in speeches and supervisors' remarks to employ- ees, that the progress the new plant was making, and the resulting employee benefits which the Respondent was planning, might be forfeited in the event of a union victory. It is apparent, from the foregoing and the entire record, that the announcement was made in a way and at a time designed to discourage employees from suppor' ing the Union. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, the announcement of the job evaluation scheme was made under the same circumstances. It provided that not every employee was guaranteed a wage increase under the plan, but that each employee was to be interviewed, and one of the three criteria to be used in determining his appropriate pay rate would be the employ- ees "attitude." The evidence shows that the classification of the various jobs was completed in October 1964, but was not followed by an announcement of the plan or its projected implementation date until February 15, 1965. The Respondent claims that this delay was due to a trial application of the plan in the die casting depart- ment in December 1964, but the employees involved were not told that they were a pilot group. In fact, the Respondent did not claim that it had even considered the results of this "experiment" prior to deciding to implement the program. We are convinced, upon the entire record, that this plan, like the construction of a new cafeteria, was precipitately announced during the critical preelection period in an effort to persuade the employees to vote against the Union, and was couched in terms that would convey the idea that support of the Union could jeopardize the possible increase in wages. We find, therefore, that the announcement both of the cafeteria construction and of the job evaluation scheme was timed and worded in such a manner as to be violative of Section 8(a) (1) of the Act. 3. We find merit in the Respondent's exception to the Trial Exam- iner's inclusion of Cox as one of the supervisors found to have made threats, as the Trial Examiner had discredited the testimony of employee Foster with respect to the alleged threats made by Cox, and there was no other testimony in this regard. 4. In view of the numerous and repeated violations of the National Labor Relations Act found herein, we find merit in the General Counsel's exception to the Trial Examiner's recommendation of a narrow remedial order, and shall, therefore, modify the Trial Exam- iner's Order accordingly. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete paragraph 1(e) of the Trial Examiner's Recommended Order and add the following paragraphs : [" (e) Threatening employees that it will not bargain with the Union in the event the Union wins the election." [" (f) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist International Union, United Automobile, Aerospace R Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, to bargain collectively JERVIS CORPORATION 267 through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities." - ' [2. Delete the fifth paragraph of the Appendix to the Trial Ex- aminer's Decision and add the following paragraphs : [WE WILL NOT threaten employees that we will not bargain with the Union in the event it wins the election. [WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities.] IT IS FURTHER ORDERED that the election held on March 17 and 18, 1965, among the Respondent's employees at its Bolivar, Tennessee, plant, be, and it hereby is, set aside, and that Case 26-RC-2317 be severed and remanded to the Regional Director for Region 26 for the purpose of conducting a new election in the appropriate unit at such time as he deems that circumstances permit the free choice of a bargaining representative. [Text of Direction of Second Election omitted from publication.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding came before the Trial Examiner Herman Tocker after service by the General Counsel, on May 14, 1965, of a consolidated complaint following charges filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO (hereafter referred to as the Union ), and John David Craft. The Respondent served its answer on May 18, 1965. The consolidated complaint alleged numerous violations of Sections 8(a) and 2 (6) and (7) of the Labor Management Relations Act, 1947, as amended. The alleged violations involved various acts of interrogation, threats, reprisal, surveillance, and granting of or promises of benefits, all allegedly for the purpose of interfering with organizing activities engaged in by Respondent's employees and to persuade them not to select the Union as their collective-bargaining representa- tive. The Respondent, in its answer, admitted various formal allegations of the complaint, the supervisory status of persons named therein , the announcement and implementation of a job evaluation plan and the happening of an event (the dis- tribution of a phonograph record ) but, to the extent that any violations of law had been alleged, such violations were denied. Prior to the service of the consolidated complaint , the Union, on March 24, 1965, had filed objections to conduct of the Respondent which allegedly affected the result of an election held on March 17 and 18, 1965, for the purpose of determining whether it would be selected as bargaining agent for Respondent's 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. The Regional Director, on June 15, 1965, issued a decision set- ting aside the election and directing that a second election be held. The Respondent, by its attorneys, on June 23, 1965, filed exceptions to the decision and direction by the Regional Director. The hearing on the consolidated complaint, which had been ordered to be held on July 7, 1965, was duly convened on that day. In the meantime, the National Labor Relations Board had granted the Respondent's request for review of the Regional Director's decision, order, and direction of a second election and had ordered that a hearing on 26 of the objections made by the Union be held. It directed that the representation case be consolidated with the complaint cases and that all cases so consolidated be heard together. Promptly on receipt of the Board's order the Regional Director issued his order providing for such consolida- tion. The Board's order was in telegraphic form and was received first by all trial counsel and me on July 7, 1965, when the hearing on the consolidated complaint cases was convened. I, by consent of counsel representing Respondent and the Union but over the objection of the General Counsel, directed that the hearing on the objections to the election be heard on an adjourned date. The hearing on the complaint phase went forward July 7, 1965, continued on July 8 and 9, and would have been concluded on that day had the Board not granted another appeal by Respondent for an opportunity to present the testimony of a witness who, it was claimed, had been unable to be present at the July 7, 8, and 9 sessions. The adjourned date for the hearing on the representation phase of the cases thus consolidated was set for August 11, 1965. By reason of the Board's action directing that Respondent's additional witness be heard, additional testimony on the complaint phase was taken at the August 11, 1965, session and, after an additional session on August 12, the hearing in all the cases so consolidated was concluded on August 13, 1965. The General Counsel, by oral argument, summed up his position on the com- plaint portion of the case on July 9, 1965, and, following the closing of the taking of testimony, counsel for the Union and counsel for the Respondent submitted briefs. The briefs submitted and the General Counsel's oral argument have been read with care. The Pleadings The substance of the complaint and answer have been set forth generally in the preceding portion called, "Statement of the Case." It is unnecessary at this point to particularize the allegations in greater detail. These will become apparent in my discussion of the evidence. As will appear, many of the allegations set forth in the complaint are intertwined with and are cited by the Union in support of its objections to the election. In addition, the main thrust of the objections to the election is directed at the fears allegedly engendered among the employees by publicity, radio broadcasts, and actions of civic leaders and prominent persons in the community, all of which are claimed to have made it impossible for the employees to make a free, considered, and independent decision as to whether or not they wanted to be represented by the Union as their bargaining agent, plus acts, demonstrations, and conditions existing in and around the polling place where the election was held, plus the timing and manner of an announcement by Respond- ent of its institution of a job evaluation plan and its intention to build a new employees' cafeteria and, finally, the alleged implied threats and promises con- tained in speeches made by Respondent's president and its executive vice-president. The details of these objections also will become apparent in the discussion below. The Issues Again in substance, the issues are as stated in both the "Statement of the Case" and the section entitled "The Pleadings ." In capsule form they are : ( 1) Did the Respondent engage in such surveillance, interrogation , threats, promises, reprisals and . . . granting of benefits as would constitute an interference with the rights guaranteed to employees in Section 7 of the Act-"to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ," and (2 ) were those actions of the Respondent and the other conditions to which I have referred in my summary of the objections of a nature which would require an order setting aside the election and directing a second election. JERVIS CORPORATION 269 Basic Legal and Policy Considerations Controlling the Determination as to Whether an Election Should Be Set Aside Because, as this proceeding developed, the overriding consideration has become whether or not the election should be set aside and a second election ordered, I deem it appropriate here to set forth some references to basic principles or policy. (1) Section 8(a)(1) violations: We [the Board] find no logic or sound reason for this disparity of treatment depending on the nature of the proceeding in which the issue is raised before the Board. Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion which violates Section 8(a)(1). (Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786, 1787.) See also Leas & McVitty Incorporated, 155 NLRB 389. (2) Campaign tactics and actions of the employer and the Union or Unions involved: We [the Board] believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepre- sentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. However, the mere fact that a message is inartistically or vaguely worded and subject to different interpretations will not suffice to establish such misrepresentation as would lead us to set the election aside. Such ambiguities, like extravagant promises, derogatory state- ments about the other party, and minor distortions of some facts, frequently occur in communication between persons. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the state- ment would not be likely to have had a real impact on the election. For example, the misrepresentation might have occurred in connection with an unimportant matter so that it could only have had a de minimus effect.- Or, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circumstances so that they could not reasonably have relied on the assertion. Or, the Board may find that the employees pos- sessed independent knowledge with which to evaluate the statements. (Hollywood Ceramics Company, Inc., 140 NLRB 221, 224.) (3) Newspaper and radio or television broadcasting and activities undertaken by influential or leading persons, officials, and groups in the area where a factory or business is located: In a recent speech, "A Freshman Looks At The NLRB" (Twelfth annual Insti- tute on Labor Law, The Southwestern Legal Foundation, Dallas, Texas, October 28, 1965) Board Member Sam Zagoria made the following remarks: There is another difficult problem for the Board-how to assure a free choice by employees in a representation election despite strong community feelings.. . . The Board is expected to make this choice possible... . There are communities . . . in which local officials, with an economic stake in keeping the union out, shed any pretense of neutrality, detachment or objec- tivity. Taxpayers' dollars are tied up in the factory buildings erected to attract industry; tax exemption has been granted in some cases. From the organizer's viewpoint it is easy to understand his feeling that `the whole town is ganging up', and if it is, do the employees really have a free choice? How much disavowing of community partisanship is an employer expected to make? How much of such assistance can he accept with impunity? And apart from his responsibility, what can the Board do to insure a laboratory-clean election in such situations? Whether any particular community conduct makes such a free choice impossible will, of course, depend on the circumstances of each case, and perhaps on the extent of the activities. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An early case in which the Board was confronted with mass community action opposed to organization of an employer, is P.D. Gwaltney, Jr., and Company, Inc., 74 NLRB 371. There it was charged that a Board election had been "conducted in the midst of a campaign of terror, intimidation and coercion, which prevented the Employer's employees from freely exercising their voting privilege." Two local newspapers actively opposed the Union. A leader in the community, who described himself as an unofficial advisor to colored and white working people, advised against the Union. A committee of local citizens, opposed to the Union, took it upon itself to circulate and advertise numerous written exhortations and state- ments opposing the Union and it organized a mass meeting at which emotional antiunion speeches were made. There were injected into the campaign dire pre- dictions of clashes between Klu Klux Klan and supporters of the Union plus var- ious intimidations and threats by local citizens. After reviewing in much greater detail than related here the events and happenings prior to the election, the Board said, at 379: This is not an unfair labor practice proceeding , but an investigation to ascer- tain employees' desires concerning their choice of a bargaining representative. Therefore, in appraising the facts and determining the Board's duty in the premises, more is involved than the mere determination of whether or not the Employer was itself responsible for the anti-union conduct which immediately preceded the election. As already indicated, there is no convincing evidence that would support a finding that the [objectionable acts of members of the community] were the (acts of this Employer, within the meaning of the statute. But that does not dispose of the case which relates to the validity of a Board election, any more than would the fact that a hurricane or other Act of God could not be attributed to an Employer necessarily lead to the conclusion that an election conducted in the atmosphere created by such a natural phenom- enon must be upheld as a true expression of the employees' desires. The issue before us here is whether, under all the circumstances, this election was held in an atmosphere conducive to the sort of free, unintimidated choice of representatives which the Act contemplates. We find that it was not. A much more recent case in which the Board was concerned with activities of outsiders, which included, among other things, radio broadcasts, visits by union opponents to homes of employees , advertisements in newspapers, and antiunion activity on the part of the mayor of the city, is Utica-Herbrand Tool Division of Kelsey-Hayes Company, 145 NLRB 1717. There the Board said at 1719: The massive campaign conducted by third parties in the community re-echoed and embellished [the employer's statement to the effect that a strike was inevitable and that economic development would be stifled if there was collec- tive bargaining]. We note further the coercive elements present in the home visits of local police officers and the mayor of the city, and in the distribution of antiunion propaganda at all banks in the community . Such pressures, although not emanating from the Employer, exerted a coercive effort upon the employees' free choice and, in conjunction with other conduct discussed above, form a basis for setting aside the election. In making the statement just quoted the hoard reaffirmed the position it had taken in Gwaltney above and referred also to The Falmouth Company, 114 NLRB 896, and James Lees and Sons Company, 130 NLRB 290. In Falmouth there had been activities of individual citizens , activities of a businessmen's committee, a local newspaper's editorial opposed to one of the unions involved and a four- column antiunion newspaper article published in the Louisville and Courier-Journal, with a Falmouth dateline, which repeated rumors that the plant would close if the AFL won the election. The Board held that there was no need to make a deter- mination whether the employer participated in or activated these extraneous influ- ences. It is said at 901: [W]e find it unnecessary to, and do not, determine whether the Employer and the businessmen acted in concert to defeat the Petitioner ... . Such determination is not material. The important fact is that conditions existed which prevented a free election. In accordance with our findings herein, we shall set aside the election and direct that a new election be held. In James Lees and Sons Company (above) the Board said: [W]e agree with the Regional Director that the numerous statements and conduct by various responsible groups and individuals in the community JERVIS CORPORATION 271 reasonably conveyed the view to employees that in the event of union- ization the Employer would shut down its plant and other employers would not locate in the community. Accordingly we find that such conduct created a general atmosphere of fear and confusion which precluded the holding of a free election. We shall, therefore, set the election aside and order a new election. The foregoing are only general principles or statements. There are numerous Board decisions which distinguish or justify a departure from them. The timing of events and the opportunity for discussion, refutation and explanation all have a bearing on whether the free choice to which employees are entitled has been impaired. Another time element is that found in Peerless Plywood Company, 107 NLRB 427. There the Board established the rule that neither employer nor unions would be permitted to make election speeches on company time to massed assem- blies of employees within twenty-four hours before the scheduled time for conduct- ing an election and that violation would justify setting aside the election. Still another time factor which has to do with Section 8(a)(1) violations and their per se effect on the integrity of an election, is that announced in Ideal Electrical and Manufacturing Company, 134 NLRB 1275, 1278: ... [T]he date of filing of the petition [for election] rather than the issu- ance of decision and direction [as had been the rule under F. W. Woolworth Co;, 109 NLRB 1446] or of notice of hearing, should be the cutoff time-in considering alleged objectionable conduct in contested cases . . . . [W]e believe that conduct thereafter which tends to prevent a free election should appropriately be considered as a postelection objection. The lessons to be learned from all the foregoing are that although Section 8(a)(1) violations approach a per se status for setting aside an election and that policy statements and principles are powerful guide lines, each case must be decided on its own facts. This leads us to consideration of the facts in this case. In the resolution of all issues with respect to which credibility of oral testimony became a factor I have considered the demeanor and conduct of the witnesses, their candor or lack of it, their objectivity, bias or prejudice, their understanding of the matters concerning which they testified, whether their testimony has been contra- dicted or sufficiently impeached, whether parts of testimony should be accepted when other parts are rejected, consistency, plausibility and probability, and the effect which leading questions might have had on the answers elicited thereby. I have given careful consideration also to oral argument presented by the General Counsel on the record and to the briefs submitted by counsel for the Respondent and the Union. Now, on the basis of the entire record, I hereby make the following: FINDINGS OF -FACT 1. THE BUSINESS OF RESPONDENT AND JURISDICTION, Jervis Corporation (Respondent) is now, and at all times material herein has been, a corporation organized and existing under the laws of the State of New York and it is engaged in the manufacture of automobile accessories in a plant located at Bolivar, Tennessee. The Respondent having admitted the volume and interestate nature of its busi- ness as alleged in the complaint and also that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, I so-find. U. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO (the Union ), is now, and at all times mate- rial herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED VIOLATIONS OF SECTION 8 (a) (1) OF THE ACT This portion of the proceeding is sought to be established by the testimony of a large number of witnesses, by references to an extract from a phonograph record of a speech by Respondent's president, and by another speech by Respondent's executive vice president. 272 DECISIONS OF NATIONAI LABOR RELATIONS BOARD For a better understanding of my references to the oral testimony, I note briefly here that the president's speech had referred to the fact that Respondent formerly had had a plant in Memphis, Tennessee, which it closed a year after it had been organized by the Union and that the executive vice president, in his speech, referred to plans to build a modern cafeteria and made formal announcement of the insti- tution and implementation of a job evaluation plan coupled with an employee rating plan which would govern the job content and the wages paid for all opera- tions in the plant. The phonograph record of the president's speech was distrib- uted to all employees on March 9, 1965, less than two weeks before the election. The executive vice president's speech was delivered on February 15, 1965, about three days after Respondent had mailed to its employees a letter and booklet refer- ring to and describing the job evaluation plan and just one month after the petition for the election had been filed. For better understanding of the oral testimony, I set forth a chronology. The Bolivar plant was opened in July 1963. There seems to be general agreement that some organizational activities started not very long after-that. C. E. Strickland, an International representative of the Union, was assigned to Bolivar in April 1964. The first organization meeting was held April 26. The first handbills were distrib- uted May 29. The Union filed its petition for an election on January 15, 1965. The Regional Director, on February 17, 1965, directed that the election be held. The election was held on March 17 and 18, 1965. - - A. Interrogation and surveillance Norman Littlejohn, a former employee of Respondent, testified that in February 1965, Supervisor Derryberry asked him how many union cards had been signed. Derryberry was not called to testify. Another employee, Catherine Mae Ross, testified that Supervisor Robert Searles had spoken to her six or eight times at 2-week intervals about the Union. She says that he asked her why the girls were for the Union, that he said he knew 90 percent were for it and that he said, "We've got ways of knowing. We know every- body that's signed cards." Although Miss Ross testified on direct that the remarks quoted had been made in about January 1965, it developed that she had stated pre- viously, in an affidavit for the Board, that her conversations with Searles started in August 1965. Since her testimony is to the effect that they were at two-week inter- vals, her reference in her affidavit to August as a starting date does not derogate from her fixing of the specific questions as having been from conversations in January 1965. Searles was not called to testify. She testified also that entrance to her home was obtained under a pretext, in early February 1965, by a man later described by her as being the personnel direc- tor from Respondent's plant in Michigan. She said that he had asked her whether she was in favor of the Union and that he had made observations suggesting that the plant would be moved if the Union prevailed in the election. (In view of the finding I shall make with respect to this fantastic recital, I shall not repeat below, in the "Threats" and "Reprisal" sections, the reference to plant moving.) She testified also to Respondent's Personnel Manager Vann Pettigrew's periodic and systematic interviews of employees as to their feelings about the Company, their jobs and whether they had any complaints or suggestions. William H. Cooper, another employee, testified that Mac Farrell, a supervisor, had asked him sometime in December how he thought the Union was going to come out in the election. Farrell was not called to testify. Joe Foster was a most unsatisfactory and incoherent witness and for that reason I shall not go into the details of his testimony. Farris Kiestler, another employee, told of a conversation with Floyd Sledge, a supervisor, in the middle or latter part of February 1965. Sledge, Kiestler says, either asked him in the form of an accusation whether he was for the Union or, by the accusation, ascertained that he was. He says also that a week rafter this conver- sation, Sledge accused him of talking Union on company time. Sledge was not called to testify. Another employee, John Thomas Johnson, testified to a conversation in mid- January 1965 with Mac Farrell. He says that Farrell asked him how he felt about the Union, whether he thought the Union would come into the plant and about the number of employees who had signed cards for the Union. As noted before, Farrell did not testify. JERVIS CORPORATION 273 With respect to the foregoing testimony, I make the following conclusory findings: In view of the fact that Supervisors Derryberry, Searles, Sledge, and Farrell were not called to deny or explain the alleged conduct attributed to them and the further fact that the testimony is not clearly unbelievable, since it stands uncontradicted on the record the Respondent thereby interrogated employees as to their Union activ- ities and engaged in surveillance of such activities not only before the filing of the petition for the election on January 15, 1965, but also in that part of January fol- lowing and in February as well. I reject all the allegations and charges to the extent that they may be related to Pettigrew's interviewing of employees at periodic intervals. I credit his testimony as to the time elements involved in these interviews and their nature and content and that they were conducted according to what I agree was an appropriate and pre- established method for improving employee relations in the plant. (See also my references to this infra.) The General Counsel's witnesses, by their testimony, show that suggestions made by them during such interviews were given consideration and were put into effect. As to the strange visit alleged to have been made to Miss Ross's home, it could be suggested that the Respondent ought to have called the two girls who had engaged in the conversation whereby she concluded that the man who had obtained entrance was the personnel director from Respondent's Michigan plant. I do not regard Respondent's failure to call these girls or the Michigan personnel director as being of any significance because I was not at all convinced or impressed by the bizarre testimony with respect to this visit and the alleged event on the basi3 of which she made her subsequent conclusion as to his identity. Moreover, the favor- able impression made upon me by Respondent's high echelon officers leads me to conclude that no such scurvy antic would have been tolerated or perpetrated. I reject her testimony as to this visit. B. Threats Melrose Hamilton, an employee, testified to conversations had with Supervisor Gene Hanks and with Supervisor Chuck O'Connor. After hearing and considering her testimony and that by Hanks, which had to do with whether he had promised that she would not be discharged if she quit working for the Union and whether, some three months later, he had said if the Union came into the plant, the Com- pany would move to Mississippi, I have concluded that Hanks should be credited and that Miss Hamilton should be discredited. In any event, the sum and substance of all their conversations seems to have been friendly small talk not of a threaten- ing nature on the part of Hanks. She testified also that when she was oalled to be informed about the job evaluation plan, Supervisor Chuck O'Connor made a remark to the effect that there were too many good people around and that they were going to beat the union organizer, Strickland, so bad that he would never show his face around again. When referring to the O'Connor remarks, Miss Hamilton stated that he had refused to answer a-question as to the Company's future intentions on the ground that if he did there would be a case against him in Memphis (meaning the Regional Office of the Board). I do not believe that a supervisor who was reluctant to answer such a question would, in the next breath, go on to make any coercive remarks or threats, assuming the remark quoted can be so regarded. Regardless of what meaning is attributed to the remark, I reject the testimony and the inference sought to be drawn therefrom and find that there was no threat here. Employee Cooper testified that in about February 1965, Supervisor Charlie Jack- son told him "You boys better watch it. You know what happened in Memphis." This was amplified by later remarks credited to Jackson "You know they moved from Memphis, you know, on account of the Union." Jackson was not called to testify. Joe Foster's testimony, as noted before, was most unsatisfactory. For that reason I disregard the effort to prove by him an alleged remark by Foreman Cox suggest- ing that the plant would move if the Union won the election. I do not regard as a threat Kiestler's version of an alleged remark by Supervisor Cranes suggesting that if the Company lost its contracts it might have no alterna- tive but to move. I interpret this remark not as a threat to move but a speculation on the possibility that, if the Company lost its contracts it would move. Kiestler testi- fied also to certain remarks having been made during a Pettigrew interview relating to the possibility of future expansion of the plant and the appointment of a local 243-084-67-vol 159-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager, both of which might not eventuate if the Company were harassed by a union. This alleged conversation, it is claimed, was had in the latter part of Febru- ary 1965. Having observed both Pettigrew and Kiestler on the stand, I am unwilling to interpret Kiestler's version of this conversation, assuming that it did occur, as being anything else but an innocent expression of opinion during the couse of a con- versation which was part of a moral building program. Employee Johnson testified also that Supervisor Mac Farrell had remarked to him that if the Union won the election it would never get a contract with the Company. It was brought out on cross that the conversation did not include any statement or suggestion that the Company would not negotiate with the Union. Nevertheless, language such as this may be regarded as a warning that the Company would not, regardless of negotiations, ever make a contract with the Union. Additional testi- mony by Johnson was that, at the time he was laid off, Supervisor Farrell told him that if union activity continued, "All of us would be looking for a job." Such a remark is tantamount to a threat that the plant would be shut down. Farrell was not called to testify. Employee Jones testified that three months before February 1965, at the time of his discharge, he had a discussion with Supervisor Charles Jackson. He said Jack- son told him that the plant would move again if the Union came in. He testified also that Farrell had remarked that if the Union "got" or won the election, the Com- pany would move to a spot in DeSoto County, Mississippi which it had acquired. Testimony touching on the alleged threat to move was given also by Annie Edna Burgess, but the remark attributed to O'Connor was merely a disclaimer of knowl- edge as to whether the plant would move if the Union came in. I do not regard this as a threat. She testified, however, that Supervisor Grady Baker, on the Mon- day before the election, distributed "Vote No" signs and with apparent knowledge of her position on the Union had told her, "You could be made to change your mind." This was a threat and Baker did not testify. Another employee, William Carl Whitten, told of a series of conversations with Supervisor Claude Turner starting in mid-January 1965 and continuing until just a few days before the election. The theme always was the same, that the plant would move if the Union came in, that the Company already had a building in Mississippi, that the people there would pay for moving the equipment, and that he hoped the Union would be voted in because he preferred to work in Mississippi. Turner was not called to deny these threats. I disregard Whitten's additional testimony that he overheard a conversation between Supervisor Grady Baker and another employee, unidentified, to the effect that the Company had left Memphis to keep from being organized and would leave Bolivar for the same reason. Whitten did not participate in this conversation and there is no way to assess or weigh the conditions under which or the context in which the alleged remark, if made, was made. Supervisors Charlie Jackson, Glenn Cox, Mac Farrell, Grady Baker, and Claude Turner were not called to deny the remarks attributed to them. Such testimony remains uncontradicted and is not beyond belief. I conclude, therefore, that the Respondent did make the various threats recited and that such threats were made both prior to and following the filing of the petition for the election, January 15, 1965. This conclusion, of course, is not based on any of the rejected testimony. This division having to do with threats is not complete without a consideration of a portion of the speech recorded by Respondent's president on a phonograph record concededly distributed to all employees on or about March 9, 1965. It was broad- cast as well over the local radio station and on the plant's loud-speaker system. The portion of the speech on which the General Counsel relies to support the charge that employees were threatened with loss of jobs if they selected the Union as their bargaining representative for the most part gives what I assume is a true, fac- tual recital of the Respondent's experiences with the charging Union in other areas and asserts that, for economic reasons and because of inability to compete, these plants had to be closed. The later remarks directly connected with the closing of the Memphis plant, less than ninety miles away, and the loss of nine hundred jobs in the Grandville, Michigan, plant where the charging Union represents the employees, were: We know that we had to shut the Memphis plant and we knew that we were free to do so .... The result was that we did shut the plant as we knew we must and as we knew we could and the people that the Union presumably rep- resented, lost the termination pay which the Company had volunteered (but which the Union rejected ). In our plant in Grandville, Michigan, this same JERVIS CORPORATION 275 union has been with us for many years . It is no coincidence , as I see it, that employment in that plant has dropped from a peak of 1200 people to approx- imately 300 people while the UAW has been representing our employees. It is axiomatic that the employer is a contestant for the votes of its employees and has the absolute right to present any arguments or facts, even embellishments and exaggerations, for the purpose of endeavoring to convince employees that their inter- ests can best be served without a union, but such arguments must be free from "threat of reprisal or force or promise of benefit." This limitation must be construed real- istically and naked words may not be subjected to fine distinctions for the purpose of obfuscating the message sought to be conveyed. The message here was clear and its effect-even though 'the message was inconsistent and at odds with the Com- pany's true intention, was to tell the employees (a) that if they voted the Union in, the Bolivar plant would be closed as was the Memphis plant or (b) that in any event there would be fewer jobs with the Union in than without the Union. So that my questions would not appear distorted I refrain from underlining the words, "As we knew we must and as we knew we could" and the words, "It is no coincidence, as I see it, that employment in that ( Grandville ) plant has dropped from a peak of 1200 people to approximately 300 people while the UAW has been representing our employees." This must have been a carefully constructed speech and the words must have been carefully chosen. They are subject to alternative interpretations. Employees who have an understandable concern for their jobs do not and will not give such expressions analytical and critical thought. They do and will interpret such words as their feelings and concerns are affected thereby. Respondent was well aware of this human trait and sought by these carefully couched remarks (fol- lowing as they did prior remarks about other Jervis plant closings ), to convey the message-vote the Union in and we'll close the Bolivar plant just as we did the Memphis plant and the other plants or take the risk of our cutting down employ- ment at Bolivar in which event many of you are going to lose your jobs. The employer must accept the responsibility not only for the precise words he uttered but also for the meaning which those words would be given by the persons to whom they are addressed. I find that by distributing the record and broadcasting it in the manner shown the Respondent did threaten its employees with loss of jobs if they voted to make the Union their bargaining representative and did thereby interfere with their right to select their own collective -bargaining agent and their right to act in concerted activities for the purpose of collective bargaining. On the other hand, I do not regard the portion of the speech referring to the Grandville plant, where was made the remark, "-[T]he union gets nothing that management cannot afford to give and the union gets nothing that management will not give," as saying that in that event there would be a strike . Brunswick Corporation, 147 NLRB 428, pointed out on pages 431 and 433 that the employer had told the employees that if the union wanted more it would have to "call a strike!" The quoted words from the speech were not followed by this prediction and so Bruns- wick is not applicable. (The General Counsel made clear that he relied only on the quotation from the record, General Counsel 2(b), and not on the entire record.) C. Reprisal The record discloses only one incident claimed to be a reprisal by the Company because of an employee's union activity. The employee involved is Norman Littlejohn who testified on several matters. He was an active worker for the Union , having engaged, during the period from November 1963 to March 1965, in the distribution of handbills and the procuring of signatures on authorization cards. His activities must have been known to the Com- pany because they included handbilling at the plant gate. He claims that he was unjustly disciplined because of these activities , the discipline being in the form of a warning issued January 14, 1965 . He was an audit inspector, charged with the responsibility of spot-checking accessories as they were pushed by his station on a rolling skid. On the day before the warning he had audited a skid or skids carrying mirror brackets. When those brackets had passed auditing by him it was learned that the set screws had been inserted "upside down." His position is that he was not required to check the screws in the brackets and that the line inspector should have checked them but did not. A statement to this effect, endorsed by Littlejohn on the record of the warning, establishes that the set screws actually were "upside down." The issue was not as to this but as to whether Littlejohn had the duty to catch the defect. He claims he was given no instructions when assigned to the job 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but admits that he did have blueprints of the accessories audited by him and, as testified on behalf of the Respondent and observed by me when I visited the plant premises, samples of the various accessories were on display everywhere . I do not credit Littlejohn's testimony that he was not instructed in the duties of his position. Further, if he was not required to make certain that there were no defects in the accessories passing before him at least by spot -check auditing , there would appear to be no reason at all for his having that job. My initial reaction had been that, since his job was only to audit, it was conceiv- able that he performed his job properly, but that a few of the defective mirrors upon which he did not happen in the course of his spot -check, might have gotten by. I am unable, however, ultimately so to conclude . In addition to accepting his department head's testimony (Lichte ) that Littlejohn was instructed as to his duties when he was assigned to the job, I accept also the testimony ("but it was enough to be rejected") as establishing that there were so many defective mirrors on the skid as to make it unlikely for an audit inspector, even if engaged only in spot-checking, to fail to detect the defects. Consequently, it is my finding and conclusion that the Respondent did not improp- erly or unjustly make the record of warning to Littlejohn and that he was not so warned with the object or purpose of interfering with his union activities. Para- graph 19 of the complaint should be dismissed. D. Promises of benefits Littlejohn testified also that both Supervisors Derryberry and Sledge had made promises of rewards which , it is claimed, interfered with his union activities . Super- visor Derryberry is alleged to have suggested to him that if he left the Union alone he would be a foreman in a year. This was in about the middle of January 1965. Supervisor Sledge is quoted as telling him in March 1965, while he was handbilling, that the future looked bright for him if he left the Union alone. Employee Whitten said that, after the Kissinger February 15 speech , Supervisor Gomicke called him and several other employees to his office for the purpose of explaining the job evaluation plan under which he had obtained a 10 cent increase. During the course of the conversation it is claimed he said that Respondent "was a new company and, if given a chance, they would do this , that, and t'other, you know, if the Union didn't come in." With some straining, this type of testimony might be interpreted as a promise of benefit for the purpose of influencing votes before the election which was about to be held soon after that time. I believe, how- ever, that it is too indefinite and uncertain upon which to make a finding of violation. The uncontradicted remarks to Littlejohn attributed to Derryberry and Sledge, who gave no testimony in denial thereof, clearly were of a nature which tended to inter- fere with the efforts to assist or promote the organization of Respondent 's employees. The construction of a new cafeteria (and the job evaluation plan to be discussed below ) it is contended strongly, were broadside benefits aimed at all the employees for the purpose of influencing their vote against the Union in the election In the complaint it is alleged that the building of a new cafeteria was promised by Per- sonnel Director Pettigrew on February 11, 1965, and by Kissinger in his speech on February 15, 1965. I find it difficult to reconcile the strong language used in the complaint for the purpose of setting forth this charge involving the cafeteria. The complaint alleges that the Respondent "promised its employees certain benefits if they refrained from becoming or remaining members of the Union or giving assist- ance or support to it (in that Personnel Manager ) Vann Pettigrew (on) Feb- ruary 11 , 1965-promised its employees that it would build a new cafeteria" and that "Walter Kissinger (on) February 15, 1965, promised its employees that it would build a new cafeteria." The evidence in support of this charge hardly justifies the conclusion . There was dragged out of employee Farris Kiestler that somehow or other, he did not remember the words now, Pettigrew and he "got off on the Com- pany expanding the cafeteria ," and then Kiestler summarized the conversation, "Well we was supposed to get a new modern air -conditioned cafeteria . that the plan had been made." But Kiestler promptly agreed that there had been rumors about the cafeteria prior to that time and that during the interview Pettigrew had spoken of other plans for expansion of the plant This was "in the latter part of February" 1965. The allegation as to the alleged announcement by Kissinger is even more tenuously proven. Here, reference is made to the Kissineer speech of Feb- ruary 15, 1965. This was a speech , seven letter-sized pages of double spaced type- writing, concerned mainly with a brief review of the progress of the Company since JERVIS CORPORATION 277 the establishment of the Bolivar plant, a brief review of various improvements, all introductory to a discussion, description, and explanation of the job evaluation plan, which I shall discuss more fully below. In this speech among the introduc- tory remarks about progress and improvements, there appears this single casual sentence, "We have plans to build a modern cafeteria for you." The remark is so casual and so wrapped up with other similar remarks that it hardly can be digni- fied as an announcement and only a careful listener to the speech or a careful reader would have been likely to take much, if any, notice of it. The issue is: Was this "announcement" of the intended construction of the new cafeteria so timed as to influence "no votes" against the Union? Although Melrose Hamilton testified on direct that she did not know about the new cafeteria before the Kissinger speech, she admitted on cross that it had been a matter of discussion among employees before the speech. Littlejohn testified that he had never heard about a new cafeteria before the Kis- singer speech and Cooper and Whitten testified that they had no "official notice" of the new cafeteria prior to the Kissinger speech. This type of testimony, from only four employees in a plant of more than seven hundred is hardly sufficient to estab- lish lack of knowledge on the part of the employees of the Company's intention to build a new cafeteria. It is a familiar principle that the mere fact that some people do not know about some things, or are not deceived by 'some statements or, for that matter, were not interrogated or coerced by supervisors, is not relevant testimony of probative value to establish the negative. The matter of the cafeteria, I am satisfied, was one of the projects planned by the Company and known by the employees months before the filing of the petition. I have no reason to disregard Pettigrew's testimony that the construction of the cafeteria first was considered by the Company in January or February 1964, and that, by the middle of 1964 (as corroborated by an independent businessman from Jackson, Tennessee), the Company started a search for a person qualified to run a cafeteria. Although there is some fogginess about the date, it appears also that the Respondent investigated construction costs before the fall of 1964 and actually obtained an estimate from a local contractor. The fact that it might have had to look to the county for cooperation, approval, or financing of the cafeteria does not mitigate against the fact of its independent effort to ascertain what the construction might cost because, whether the Company or someone else were to pay for it, pos- sible costs had to be considered. Pettigrew's testimony, credited as it is by me, is supported not only by other testimony in the record but by documentary evidence as well. Before adverting to this I should observe that it was common knowledge in the plant that there would be a new cafeteria prior to these "announcements" and that witnesses in support of the complaint admitted that there had been rumors to that effect. Vice President Kissinger presented a graphic and understandable picture of the growing pains of a newly established plant confronted with manpower difficulties, difficulties about filling orders and meeting contract deadlines, installation of improved machinery and equipment, and a rapidly expanding work force. The broad range of problems and the difficulties encountered are understandable and must be considered in connection with the manner in which company progress and improvements was made known to the employees. Along with this must be con- sidered as well the fact that almost from the establishment of the plant at Bolivar, union activities came underway and within a short time thereafter an active pro- fessional organization campaign was undertaken. If the thesis of the General Coun- sel and of the Union were accepted, no new plant could expand or improve work- ing conditions until after it was organized or an effort to organize was terminated adversely. All that the Company did must be considered not in the nature of forays or skirmishes with the Union, but according to what a company ordinarily would do to build up a plant and get it into a competitive, profitable, and har- monious working organization, regardless of whether this was being done during the course of efforts to organize its employees or in the absence of such efforts. With that background we find from Kissinger's testimony that although he was first employed by Respondent in May 1964, he became concerned with the cafeteria in June or July of that year He instructed the plant's then general manager to conduct exploratory conversations with the county officials looking to the erection of a new cafeteria. On August 5, 1964, there was a meeting of several supervisory officers, attended by Kissinger, Pettigrew, Chuck O'Connor, and others. At this meeting various matters involving personnel relations and plans for improving them were discussed, including, among other things, not only the cafeteria but also the 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD very visitation reports which were the results of the Pettigrew interviews discussed elsewhere. In addition to the cafeteria, restrooms, parking facilities , air-conditioning, and fans were discussed . The minutes of this meeting corroborate Kissinger's testimony that he gave instructions that the matter of a new cafeteria, possibly air conditioned and serving hot meals, was to be discussed with the county officials. The cafeteria was only one of a number of major projects and , although impor- tant, could not be pushed as rapidly as some of the other projects which involved the improvement of or the installation of new production facilities . The desirability of a cafeteria and the need for it for a plant having hundreds of employees with only limited restaurant facilities in its geographic area, which facilities were not easily accessible to the employees , ought to be obvious. We do not need Kissinger's testimony about his concept of good employee relations as justifying the plans for and the ultimate construction of a cafeteria. Taking into consideration the variety and the complexity of the problems with which management was confronted, the very early steps taken toward the construction of the cafeteria , the fact that before the dates of the so-called "announcements" by Pettigrew and Kissinger, the employ- ees were aware of the fact that there would be a new cafeteria , the jurisdictional problems as to approval of funds for the cafeteria (the county government vis-a-vis the Company ) and the production problems which had to be met and overcome, and finally the fact that at the time of the hearing in August construction of the cafeteria was well under way, I am unable to conclude that the remarks attributed to Pettigrew and to Kissinger were promises of benefits to the employees if they refrained from becoming or remaining members of the Union or giving assistance or support to it, and I find that at best the " lannouncements" were only casual observations of continuing progress being made and confirmation of information already in the possession of the employees. Whatever has been said with respect to the general conditions and problems with which Respondent was confronted in connection with the cafeteria applies with even greater force to the job evaluation program . It is true that the Kissinger speech explaining the job evaluation program was made on February 15, 1965, and that this followed within a few days a communication from the Company to all its employees to the effect that the job evaluation plan was about to be put into effect, which communication was accompanied by a booklet explaining the operation of the plan. It is true also that on January 15, 1965, the Union had filed its petition for an election. It happens also that on February 17, 1965, 2 days after the speech, the Regional Director ordered the election to be held . The question is, were the written communications to the employees and the February 15 speech so timed and conceived as to persuade the employees not to become or remain mem- bers of the Union or not to give assistance or support to it . Here again we must review the manner in which the job evaluation program was developed in the Respondent's plant. Before coming to the details of this, I note once more that the employees were aware long before the wiitten communication and the Kissinger speech of the fact that a job evaluation plan was being developed . The facts show that they could not have helped having had this awareness apart from the admis- sions by witnesses called in support of the charges and the affirmative testimony by witnesses called by the Respondent. Again, needless to say, we do not require Kissinger's testimony to tell us that in a plant with hundreds of employees and possibly dozens or more of different operational job functions , some job evaluation program is absolutely necessary for the running of the business. This was one of Kissinger's first concerns and cer- tainly he would have been derelict in his responsibilities if he did not give earnest and prime consideration to the setting up of job classifications and job functions. Only one month after being hired by the Company (in June 1965) he communi- cated with a prominent consulting firm having to do with job evaluations and plant management. Its representative visited the Bolivar plant in the middle of August 1964, but because of its high charges , its own time commitments and because management of the Bolivar plant was being changed with the hiring of McGuire, the new plant manager, that firm was not retained . Kissinger, by reason of his prior business association , under-took arrangements with a management association which had within it a division capable of setting up job evaluation plans. A formal proposal from this association was made on October 19, 1964, and, within a few days the association was authorized to start a survey for the purpose of setting up a job evaluation program. Now commenced an activity with respect to the job evaluation program which was of a nature that the employees at Bolivar if they did not become aware of the JERVIS CORPORATION 279 fact that a job evaluation program was going to be introduced at the plant would have had to be so ignorant to defy one's imagination. One of the association's consultants spent 6 days at the plant, October 26, 27, 28 , 29, 30, and 31, accom- panied by a member of the plant's "methods and time studies" division . Together they wrote up job descriptions , conferred with foremen and superintendents, and the jobs and job functions of from 750 to 800 employees were observed and studied, resulting in the setting up of some seventy-seven classifications . All this was done right in the plant and among the employees during their working hours. On December 15, 1964 , three copies of the job rating survey, together with an explana- tory letter, were sent to Bolivar's manager, McGuire. On December 15, 1964, and under separate cover at the same time, as an aid, the association's Industrial Rela- tions Monograph on Job Rating was sent . Less than a week after McGuire would have received it, Kissinger had a conference with the association 's vice president in charge of engineering services and additional data with respect to grade structure, costs, and administration of the program were sent to him in a letter dated Decem- ber 24, 1964. The entire job rating survey covering all the jobs and the grades within the jobs, comprising a bound volume approximately three-fourths of an inch in thickness, was delivered in December 1964. Automatic adoption of the recom- mendations was not to be expected . It had to be determined, first, whether the program would work and, second, whether the board of directors of the Respond- ent would accept it and have it control all the operations of the Bolivar plant. To do this it was necessary to have a pilot installation . The pilot experience was obtained from the implementation of the program in the die cast department in about the middle of December 1964 . The employees of that department were called in and informed about the program and how it would work and affect them. Some of the employees , but not all, received increases in pay by reason of it. It did not happen suddenly in the die cast department for as Clifford, the die cast and trim shop superintendent , testified , he had been familiar with it, knew a week or 10 days before it became effective that studies had been made for it and in mid- December, he had been notified that it was going to be effective. Any employees around the plant, not in the die cast department, surely could have and presumably did know what was happening there with respect to job evaluation once the employ- ees there became affected by it. Obviously it was no secret and the information about it was not being hidden from the employees to be sprung on them at some critical date in the future. The Company had a plant newspaper which had been distributed at monthly intervals from time to time. This newspaper, which had disclosed in its August issue the fact of Pettigrew 's personnel interviews and the solicitation of suggestions, high level communications of company progress and the appointment of McGuire as manager, did, in its December 1964, issue, make specific announcement pointing out that, as had been within the knowledge of the employees, a job evaluation sur- vey was being conducted . It was mailed to the employees on December 23, 1964, and said, "All the data is now being compiled and all jobs will be rated on a fair and equitable basis. As portions of the program are completed we will move ahead as we have done in the die cast department." (Incidentally in this same issue the Company announced an additional paid holi- day and the fact that a full-time registered nurse had been employed and that an assistant personnel manager drawn from the local population had been employed.) Following the pilot program in the die cast department the overall program was given additional consideration and within the 30 or 40 days following , the entire plant became subject to it. The transmittal of the notification and the additional explanatory speech by Kissinger were consistent with what appears to have been the Company's established practice of keeping the employees informed as to what was happening at the plant and it is not unreasonable to say, as the Respondent says, that the manner in which it came to make the formal announcement of the actual implementation was a normal step in the growth of the plant. On the matter of timing, I am unable to find that the timing was in any way geared to the fact that a petition for an election had been filed or the future fact that the election was directed two days later. As a matter of fact, bearing in mind that the job studies had been in progress for months, that the pilot installation had been made in the die cast department in December, and that the company plant journal had confirmed to the employees that the job evaluation program was being planned, there is a grave question as to how long the Company could have delayed imple- menting the program and making it effective for the entire plant without risking 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serious employee dissatisfaction and questioning about the sincerity of its promises with respect thereto. Moreover, if it had delayed the implementation until after the election, it certainly might have been confronted with the charge that it was awaiting the outcome of the election to determine whether it would put the pro- gram into effect. Finally, the job evaluation program in all its facets did not result in pecuniary benefits to all its employees. Numerous employees did not receive pay increases by reason thereof. Consequently, on the basis of all this and having taken into consideration all the time elements involved, I am unable to conclude either that by its written noti- fication of February 12, 1965, or by the Kissinger speech of February 15, 1965, or by reason of the fact that certain employees might have received wage increases pursuant to job reevaluations, the Company sought to influence its employees not to become or remain members of the Union and not to give assistance or support to it, or that it thereby interfered with the organization activities of its employees, or that it sought to influence thereby their voting in the election shortly to be held. On the contrary, I find that the Company, by engaging in the job evaluation study and by placing it into effect at the time that it did, did so in the normal and usual course of business and in a manner consistent with prudent and acceptable business practices. In summary, therefore, I am of the opinion that all charges so far as they relate to the cafeteria and the job evaluation program should be dismissed. The Union's Objections to the Election The Union filed objections to the election, requesting that it be set aside, and prefaced its objections with the statement, "Since on or about January 15, 1965, the Company and its agents destroyed the Union's majority status by their actions set forth as follows." This introductory statement is followed by 38 specifications which, by reason of the manner in which they are introduced assume two postulates-(1) that the Company directly or by its agents committed the acts set forth in the specifications, and (2) that the Union did have a majority sta- tus which had been destroyed by the acts of the Company and its agents. At the outset I think it advisable to make clear, first, that whatever specifications may be sustained, the fact that they are sustained does not and should not be regarded as a finding by me (unless expressly so stated) that the acts therein set forth were committed by the Company or its agents, and, second, that there is any evidence whatsoever in the entire record of this case that the Union at any time did have a majority status which was or could have been destroyed. Instead of lumping or grouping the specifications in the manner adopted by the Union, I believe that it may be preferable for me to take each separately and state my findings with respect thereto at each such interval. To the extent that any specification has been treated in the complaint portion of this Decision, I shall not engage in any further discussion of it but shall content myself merely with noting that fact. In my consideration of the specifications or objections, I assume that the Board's Order granting the Employer's petition for review requires that I consider each de novo. For that reason I have not considered the Regional Director's Supplemental Decision and do not by my Decision venture to engage either in a review of his actions or reasoning or utilization of it as a basis for any finding or conclusion with respect to the objection. 0 1. Threats of plant moving if Union was voted in This has been covered in the complaint portion of this Decision. 2. Threats of loss of jobs to working employees who were union supporters if they supported the Union This has been covered in the complaint portion of this Decision. 4. Threats that plant would move if Union came in and taxes would be raised to pay balance due and owing Hardeman County The Company had nothing to do with this except to the extent that it reaped the benefit thereof in its campaign against the Union. There was publicity to this effect and this publicity will be treated at greater length below. JERVIS CORPORATION 281 6. Threats of loss of job and plant moving through Hardeman County newspaper, The Bolivar Bulletin The Company had nothing to do with this and the contention will be discussed generally below. 7. Threats of plant moving by Hardeman County officials, Bolivar city officials and various business men through pamphlets and personal contacts with the unit employees, both on and off company property The Company had nothing to do with this and, to the extent that writings were involved, the contents will be discussed below. There were personal contacts with the unit employees to the extent that writings were handed by city officials and various businessmen to such employees. Substantially all of this was done off the company property and the only exception appearing in the record is the insignificant intrusion beyond the plant gate on one or two occasions by Judge Frost during the course of his distribution of antiunion pamphlets while shifts were changing. This was denied by the company guard, but if it did happen, it was as I have said, insignificant There is uncontradicted testimony that Judge Frost told certain union officials, not employees generally, that the plant would move away if it was organized. This was during a conference between the union officials and Judge Frost. It appears that Judge Frost was convinced finally that even if the Company did move, the county would be able to collect its advances for construc- tion from the Company. There is no evidence of any direct personal contacts with the unit employees by county or city officials or businessmen. The Company did not authorize or sponsor any of these threats. The contents of the pamphlets will be discussed below. 9. Threats of plant moving by the Loyal Employees Committee through leaflets during working hours The Company had no responsibility for and did not authorize the "LOYAL EMPLOYEES COMMITTEE" to distribute leaflets containing threats of plant moving, but the leaflets themselves created such confusion in the minds of employ- ees that even one of the company witnesses testified that such leaflets had been issued by it. 10. Threats of plant moving through a recording made by Company President Harman, handed to working employees and mailed to laid off employees This has been covered in the complaint portion of this Decision. 11. Threats of plant moving by playing President Harman's record to working employees on company P.A. system This has been covered in the complaint portion of this Decision. The record was played on the Company's public announcement system during a lunch period but there was no violation of the rule of Peerless Plywood Company, 107 NLRB 427. 12. Threats of plant moving by playing President Harman's record over the local radio station, WBOL, on at least six different occasions before and during election This has been covered in the complaint portion of this Decision insofar as con- tent is concerned. Peerless Plywood (above) was not violated thereby. 13. Threats of plant moving and subsequent increased taxes by Loyal Employees Committee by handbtlling working employees with the group mentioned in in point number seven This specification is linked in the objections together with specification 7, and what I have said with respect to specification 7 should be regarded as applicable as well to this specification. Similarly, what I have said with respect to specifica- tion 9 should he regarded as applicable. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14. Threats of plant moving by radio station WBOL commencing on or about March 13 and continuing through the election Radio station WBOL engaged in no such threat and, to the extent that some spot announcements had not been identified by sponsor, it is my conclusion that the failure to identify as ascribable only to inadvertent omission. To the extent that there were antiunion broadcasts immediately prior to and during the election, there is no evidence that such broadcasts were heard in or anywhere near the polling place. 15. Threats of plant moving by Interested Citizens of Hardeman County through radio station WBOL The Company had nothing to do with these alleged threats and the additional comments with respect to specification 14 are applicable as well to this specification. 17. Promises of promotion if employees denounced and voted against the Union This has been covered in the complaint portion of this Decision. 19. Promises of higher wages and other increased benefits if Union lost election This has been covered in the complaint portion of this Decision. 20. Granting wage increase to most employees on or about February 18, 1965 which commenced on or about March 1, 1965 This is wrapped into my discussion and findings above with respect to the job evaluation plan. Not all employees were granted wage increases. The conclu- sion I have made with respect to the job evaluation plan is applicable as well to this specification. 21. Granted Loyal Employees Committee and other antiunion employees time off with pay to pass out leaflets "Vote No" insignia and antiunion petitions for signatures There is no credible evidence of probative value in support of this specification and my comment on specification 22 below concerning the conduct of employees is equally applicable to this specification. 22. Supervisors and office clerical handbilled employees during working hours, secured signatures on antiunion petitions and gave employees "Vote No" insignias I am not satisfied by the evidence that supervisors actually did engage in hand- billing, but to the extent that certain of the testimony may be credited, any such conduct on the part of supervisors should be regarded as legitimate campaigning during the preelection period. I find specifically that no supervisor secured signa- tures on antiunion petitions. To the extent that there was handbilling and anti- union electioneering by employees during working hours, I find that there was no "no-solicitation" rule and find as well that union adherents engaged freely in similar activities during working hours. 23 Bulletin boards used to misinform and threaten employees with plant moving, strikes, dues, fines, initiation fees, and assessments No evidence was offered in support of this specification. 24. Interrogated employees about their union sentiments during working hours and at other times This has been covered in the complaint portion of this Decision. JERVIS CORPORATION 283 27. Permitted antiunion employees to pass out to other employees ' during working hours, literature injecting the racial and Communist issues by accusing the Union its -leaders and others of being pro-civil rights and pro-Communists I recall nothing from any of the evidence presented at the hearing to support a finding that any racial or communistic issues were injected into the campaign. 28. Placed antiunion literature , signs, and slogans in the hands of voters during working hours The Company engaged in no such practice. To the extent that individual employees might have engaged in that practice, there is no evidence that the Com- pany was requested to do anything about it and there is no suggestion that union adherents were prevented from engaging in similar practices. 29. Permitted and participated in an antiunion parade immediately prior to election which encompassed the voting area This was a spontaneous demonstration on the part of employees about which theie is varying testimony with respect to size or volume and time consumed. I find however that the antiunion parade, which actually did transpire, was inde- pendently organized by and participated in by employees without sponsorship, encouragement, organization, or authorization by any company official or super- visor. 'While the good taste of the parade was most questionable , there was nothing disorderly about it and there was nothing about it which could be regarded as a means of intimidation or coercion . Moreover for a more outrageous demonstration, not condemned, see Sewanee Coal Operators' Association, Inc., 146 NLRB 1145. 32. Wore antiunion signs in and around voting area during the election This specification is not clear as to who wore the antiunion signs. To the extent that the introductory material or preface to all the specifications may be regarded as alleging that company officials did , I find that no company official or supervisor wore such signs. To the extent that any individual employee wore any "VOTE NO" sign within the voting area I find that such conduct in and of itself is not of a nature which has been regarded as having an improper influence on voters exercising their franchise. 33. Permitted antiunion employees to sit around immediately adjacent to polling place with antiunion signs during election Some employees both antiunion and prounion did from time to time enter the luncheon area for the purpose of eating their lunch or awaiting the beginning of their shift. To the extent that this is sought to be made to appear as having had a bearing on the election, I find that, in view of the long period of time during which the campaign was waged and the further fact that both the polling area and the luncheon area were physically a part of what was normally the overall lunch- eon area, there could have been no effective impact and the condition was unavoid- able. The vice, if any, that some entered there during the voting period is attrib- utable only to the choice of the polling area. In any event, however, I repeat that this fact alone had no impact on the freedom of choice guaranteed to employees in a Board election. 34. Placed large antiunion ' signs and banners around polling area There is credible evidence that there were antiunion signs and some banners on display in various places not far from the polling area. Having inspected personally the physical conditions prevalent there, it is my conclusion that such signs and banners could have had no immediate and consequential effect on any voter for the reasons that this had been , together with prounion electioneering, their constant diet for many months before and, insofar as visibility from the polling area may be concerned, they would have had to engage in some extra- ordinary neck-stretching and twisting to see them from that area. Employees going to that trouble for the purpose of reading such signs would have done so not because they were undecided how to vote but only because of their curiosity, antip- athy, derision , or sympathy with respect thereto. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 37. Allowed antiunion literature to be stacked up both inside and outside polling area before and during election I find no credible evidence of probative value to support this specification. Before addressing myself to the literature, newspaper editorials, newspaper articles, and the radio broadcasts, I refer briefly to the divergent views in General Industries Electronics Company, 146 NLRB 1139. This is the case in which the dissenter contended that where individual aspects of conduct viewed separately do not constitute interference with an election, there is no warrant for concluding that the whole is greater than the sum of its parts-to which the majority responded that all such parts can be added together and where the sum total constitutes a clear message sought to be imparted to the employees, that sum total does add to something which may be justification for setting aside an election. I would add to this only that each of a hundred different scratches on a person's body may not separately result in a person's death, but if the entire one hundred happened at one time that person might bleed to death. I also make the express finding that the campaign was a hard-fought campaign, that whatever charges or arguments were made against the Union were made at times during the campaign when the Union had ample opportunity to refute or explain them and that the Union did engage in voluminous and powerful hand- billing and pamphleteering in response to that against it. With respect to the Union's complaint that it did not have the opportunity to utilize the local radio station, I find specifically that such lack of opportunity as it suffered was not con- trived by Respondent and was due only to the Union's belated attempt to utilized the radio and reasonable and proper restrictions by the radio station on the utilization of spot broadcasts and commercial broadcasting. Further, this is not the forum for determining whether the radio station engaged in unfair or improper activities which might more properly be the concern of the Federal Communications Com- mission I find affirmatively that the radio station, although it might have exhibited bad judgment in allowing the antiunion interests to buy up as much of its avail- able advertising time as it did, did not engage in any conduct chargeable to the employer when it refused to accept the additional spots requested by the Union. Without thereby judging the propriety of the radio station's conduct in refusing to accept additional spot broadcasts from the Union, I find that, in allowing 15-minute intervals between spot broadcasts, the radio station in fact did not have additional available time for sale to the Union. With respect to conclusory findings expressed above and not dealt with directly in the complaint portion of this Decision, it is appropriate that I make certain observations with respect to the oral testimony given in support of and in opposi- tion to the objections. I am satisfied from the testimony given by the owner of radio station WBOL that this station, like all other radio stations, has program- ing problems and that the necessities resulting therefrom rather than discrimination against the Union created the difficulties with respect to which Messrs. Strickland and Starling were confronted when they sought to obtain advertising time on the Monday afternoon preceding Tuesday and Wednesday, the days of the election. I do not believe that either the radio station or the Respondent should have any adverse inference drawn against them because of the station's ultimate resistance to the Union's demand that it be given equal and free time to present its argu- ments over the station's broadcasting facilities. Strickland and Starling, as well as several of the union employee witnesses, admitted that union electioneering was conducted on the plant premises and on company time. Farris Kiestler and Catherine Mae Ross were principal and standby witnesses on behalf of the Union. While some of their testimony has been accepted as credible by me, both of them colored their testimony with a broad brush and tended, in my opinion, to engage in numerous exaggerated and farfetched pres- entations. I reject entirely Kiestler's testimony as to his conclusions with respect to the stage of construction of the cafeteria at the time of the hearing. In any event, as I view the entire point relating to the cafeteria, I regard the actual stage of construction at the time of the hearing as being irrelevant. I do not credit Glenn's testimony about the participation of supervisors in the parade but on the contrary credit that of Clift to the effect that there were none. Clift made a'very favorable impression on the witness stand and was straightfor- ward and unshaken in his testimony. Sue Chumney, Carol Dial, and Don Carter corroborated Clift's testimony. Additional testimony by Glenn as to conditions in JERVIS CORPORATION 285 and about the voting area is not only difficult but rather impossible for me to accept because I cannot believe that the Board agents assigned to conduct the election could have been as negligent or as derelict in their duties as could be implied from Glenn's testimony. I understand, of course, that pamphlets or literature, both pro- union and antiunion, might well have been found scattered on the floor of the voting area. This fact in and of itself, while disturbing, is easily and naturally attributable to the fact that voters at any election do carry printed material of one kind or another relating to the election into the polling places and carelessly dis- card it without regard to proprieties which ought to be observed. Glenn, despite having worked for the Company for two years, demonstrated a strange inability to recognize persons in the parade but he was positive in his testimony that supervisors were. He admitted to the fact that some employees normally come to work early and spend their free time in the lunch area. While Catherine Ross testified that Supervisor Grady Baker gave her a "VOTE NO" sticker, her other testimony about the conditions at and around the polling place, like that of Glenn, appears to be so exaggerated that I have concluded not to credit her testimony in this connection about Grady Baker, even though Baker was not called to rebut it Her own testimony to the effect that the litter on the floor was not there when the election started demonstrates that if in fact there was such litter, as undoubtedly theie might have been, it was the voters themselves who carelessly dropped it during the voting. Illustrative of her willingness to misstate the facts is her ultimate admission that she herself spoke to employees about the Union during working time, contrary to what she had testified on direct The testimony of Buigess (unlikely as it was on its face) to the effect that Respondent's attorney had told a voter on the way to vote that the voter was too nice a girl to be on the wrong side (meaning the union side) was effectively destroyed by this voter's clear and forthright testimony to the effect that there actually had been such a conversation but that it had been after the election. I ani peisuaded by Pat Record's testimony that, while the parade to which the union witnesses testified was conducted, it was a spontaneous action on the part of the employees without sponsorship of any supervisory official and that it was conducted during the lunch period. To the extent that, as testified by another employee witness, the parade might have overlapped the lunch period by some five or den minutes, experience teaches us that if in fact it did, this was a not unnatural lag and is not ground for concluding that the Company thereby fostered the parade on company time. I am not at all satisfied by Plant Manager McGuire's testimony that the Com- pany effectively disavowed the rumors that the plant would move from Bolivar if the Union won the election. On the contrary, I believe that the speech which he gave on March 11 with respect to this problem was an equivocal speech. It did not make clear enough or strong enough the fact that the Company had no intention to move. There was no definite disavowal of the rumors There was no definite assurance that the Company would not move. A remark to the effect that "No responsible company official has stated that this Company would move from Bolivar" is not a denial that the Company would move. On the contrary, it is susceptible to the interpretation that although no responsible company official had made any such statement, the Company reserved its right to make a decision on the matter, one way or the other at some future time. Sue Chumney in her testimony demonstrated the confusion which must have been engendered in the minds of many employees. She was called by the Com- pany and she testified that literature distributed by employees or the loyal employ- ees committee was "handed out" by the Company and that when she referred to the loyal employees committee she meant the Company. This brings us to a consideration of the war by liteiature. This was in the form of handbills, newspaper advertisments, articles, and an editorial Although I have referred to Sue Chumney's testimony indicating that employees were confused as to whether certain antiunion literature was issued by the Company, I find nothing in the evidence which would justify the conclusion that any of the evidence to which I am about to refer was sponsored, paid for, or issued by the Company excepting only that literature which I relate directly to the Company in my discussion. The March 4, 1965, issue of the newspaper, the Bolivar Bulletin, had two large advertisements purporting to be an exchange of correspondence between parents and a son, but concededly fictitious. The Chamber of Commerce was responsible for their insertion. They covered the entire right vertical half of a page. Except 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the fact that there is speculation in the son's letter to his parents that the Jervis plant might move farther south if the Union were voted in, these advertisements follow the usual line of election propaganda. The same issue of the bulletin has on its first page both an editorial and -a news article. The news article is factual and the editorial, while obviously antiunion, is not inflammatory nor legally objec- tionable. The March 11 issue contains an advertisement sponsored by "The Non- Union Actuator Line," not connected to the Company, 6 inches square. It defi- nitely suggests the possibility that employment will be lost if the Union wins the election. It says, among other things, "On March 17 we will have a say so of whether we still have a pay check to pay our bills or not. If we vote YES we stand a chance of losing it-if we vote NO our bills will still be paid." The other side of this page has three little squibs containing only informational propaganda as to desirable working conditions at Jervis. These and a number of similar squibs, appealing at other places in the newspaper, were paid for by the Chamber of Commerce. Another first page of a section of the Bolivar Bulletin of March 11, 1965, contains a factual and unobjectionable statement about the election. Page 2 of that issue, in addition to containing another one of the squibs to which I have referred, contains a quarter page advertisement in the form of a letter from a father to a son (fictitious as were the other letters) and repeats the implication that Jervis might move if the Union won in that its next to the last paragraph is, "If the Union should win this election, and then if Jervis Corporation should have to leave Bolivar, what would you do about paying debts?" So much for the newspaper publicity, and now we come to the pamphlets or handbills. There is a handbill entitled "To All Employees of Jervis Corporation," the writers of which disclaim any association with Jervis and identify themselves as persons interested in community progress and individual welfare. It suggests the possibility that if the Union wins the election and the Company moves, the county would have to pay for the improvement bonds issued and the tax rate would be increased by 75 cents for the next 20 years. It contains as well a mathematical projection of what union dues might buy, a prediction that new factories would not move into the area, a statement that the Union sets production standards and rules and that students graduating from school will need jobs which will not be available if the Union wins. Another handbill entitled, "Attention Fellow Employees," presumably issued by antiunion Jervis employees, definitely suggests that the Company may move if the Union wins and reminds the employees that the Company moved from Memphis. A Chamber of Commerce handbill, entitled "Questions to Ask," while stimula- tive of antiunion feeling, is nothing more than reasonable propaganda . The same is true for another pamphlet, issued by the Company, containing six "IF" remarks, all followed by the admonition, "VOTE NO." This too is normal, unobjectionable electioneering propaganda. Another handbill, issued by the Company, "Don't Make a Mistake," is unobjectionable electioneering as is a company issued sim- ulated $60 bill, truthfully referring to the $5 a month union dues to which the employees are urged not to subject themselves. Another handbill, in the form of an eight box comic strip (also said to have been issued by the Company), carried the message that union officials and organizers have a callous disregard for the welfare of employees and are concerned only with their own jobs and wel- fare. There are three additional Loyal Employees Committee handbills, all not to be condemned, one entitled, "FLASH," and a second entitled, "Dear Loyal Employ- ees," both deriding union organizers, and a third entitled, "What Trend Is On," to the effect that the Union was losing ground in its campaign and that elderly people could and did find employment at Jervis. Finally, there is a last day hand- bill entitled, "The Campaign Is Over," urging the employees to vote "no" for themselves and for Jervis . This is one of the pieces of literature said to have been among the litter on the floor at the polling place on the day of the election. Thus, in summary, except for those writings which I have characterized as objectionable, the literature was consistent with Section 8(c) of the Act. Further, I find that with the exception of the last day handbill (which really required no reply and which technique equally was available to the Union) the Union had ample opportunity to reply, rebut, evaluate, and explain (as will appear it did) any of the propaganda against it. While the Union was unable to do the same with respect to the radio broadcasts, its inability to do so is attributable solely to its own failure to make timely application for radio time. In addition to its ability to use its own great resources and professional organizers, the Union was aided in its campaign by the Amalgamated Meat Cutters and JERVIS CORPORATION 287 Butcher Workmen of North America which had a local representing the employees of the International Shoe Company's Bolivar tannery. Illustrative of its own aggressive campaign and its ability to combat the campaigning against it are the following: In the March 11 issue of the Bolivar Bulletin an advertisement 61/z inches by 141/2 inches was placed by the president of Memphis Labor Council and other persons who were officials of the Amalgamated's Local at the International Shoe Company's tannery. This had the banner headline, "ARE UNIONS NECES- SARY." It undertook to answer specifically every argument which had been made in the editorial mentioned above, as well as general allegations which had been made throughout the campaign. It denied that employees who organized into unions are gripers, lazy and shiftless, without concern for their jobs or the com- pany which employs them. It alleged that the tannery local's officers and mem- bers were leading citizens of the county, that when the tannery had been organized 15 years before minimum wages were 75 cents per hour as opposed to "well over $2 per hour" being paid in March 1965, that this increased buying power had benefited the entire county as well as the newspaper which published the editorial, that there is a good working relationship between the union and the International Shoe Company for the purpose of expanding and making the business more profit- able, that unions are concerned that companies run at a profit, and that this con- cern is evidenced by occasional voluntary wage cuts to enable companies to com- pete, that unions have contributed to making this country an economic leader among countries in other parts of the world, that wages at Bolivar are as little as one-third those paid for similar work elsewhere, that threats of closure are false and made only to defeat organization efforts, and that Hardeman County ought to get into "the mainstream of the sixties" and get away from the "sweat shop" era. It winds up with the exhortation to Jervis employees to vote "Yes" for the Union. During the week before the election, the Union issued a handbill entitled, "WHO RUNS THE UNION? YOU DO!" This made clear that all internal activities, projects, and affairs of the Local, as well as its relations with the International, are controlled by the Local membership. Another handbill issued the week before the election was entitled, "RIGHT OR WRONG-FACTS AGAINST RUMORS." It undertook to dispel the rumors about moving, about the Company's inability to survive with the Union, about the Union's control of production and penalties related thereto, and about job security with the Union. As to the rumor about plant moving, the Union quoted from the Company's latest stockholders' report which made clear that there was little or no possibility that the Company would close its Bolivar plant. As to the rumor about the Company's not being able to afford a union, the Union quoted from the report showing phenomenal increases of profits in the last two years and agreed that everybody in Bolivar would gain if the employees were given a decent wage increase sharing in these profits. As to the setting up of standards of production, it pointed out that the only purpose for this was to combat dangerous and unhealthy speedups. As to job security, it asserted that this would be protected and not prejudiced in the event of organization. This handbill was signed "Jervis Inplant Organizing Committee" and by the UAW's professional organizers. Another handbill entitled, "HI, NEIGHBOR," was issued by the Tannery Work- ers Union addressed to Jervis employees and welcomed them to join the union fellowship by voting "Yes." It sought to dispel the "scare" rumors and recited at great length various benefits to accrue from unionization. Another handbill distributed just before the election entitled, "AN OPEN LET- TER TO ALL JERVIS EMPLOYEES," was signed by the officers of UAW's local at Union City, Tennessee. It too addressed itself to various charges which had been made against the Union and played on the camaraderie of native Tennesseeans and Americans. It recited various wage increases and benefits obtained by organization and emphasized that joining the Union during the period of organiza- tion would involve no initiation fee. It reminded the employees of what had been a very bitter, violent, and much publicized campaign for the organization of the employees of American Metal Products Company. It asserted that those employ- ees now "have a good union contract, and the company is doing better than it ever did before." It exhorted the employees not to be taken in by lies and false charges and to vote for the Union. Another handbill distributed by the UAW organizers was entitled, "$5,000.00 REWARD." It sought to dispel the propaganda about dues, initiation fees, and self-aggrandizement of International officials. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another handbill issued by the International just after the broadside implementa- tion of the job evaluation plan was entitled , "BEWARE OF THE JOB EVALUA- TION AND ITS 'POINTS."' It asked employees to compare the wages paid for similar jobs in the UAW organized Grandville plant of the Company with their own rates of pay and pointed out that the Grandville rates had been negotiated between the company and the union and could not be changed without approval by the employees. The organizers, at least a week before the election, issued another handbill entitled, "BOMBS AWAY!," blasting "sweet talk," "nice promises," "threats," "fear" and "rumors," all depicted as separately falling bombs. It warned the employees to "look out for booby traps." It ridiculed the antiunion campaign and pictured the Company as seeking to seduce the employees by benevolences during the campaign, coupled with scare tactics. Another handbill issued by the "Jervis Inplant Organizing Committee," over the signatures of the International's representatives, presented a voluminous tabula- tion of what appears to be all job rates at the Grandville plant as negotiated by the UAW, informed the employees that the election had been ordered, exhorted them to vote for the Union, and sought to inject into them dissatisfaction with the wage rates being paid in Jervis' Bolivar plant. Another handbill entitled, "DOUBLE TALK," issued late in January 1965, referred to the election ultimately to be held and derided the Company for stall- ing while at the same time saying it wanted an election. It alerted the employees to expect all sorts of company rumors, propaganda, and falsehoods because the Company was desperate to have the employees abandon their union sympathies and vote against the Union. In responding to the handbill which had proclaimed what union dues and initiation fees payable in one year could purchase for the employees, the Inter- national representatives issued a handbill entitled, "THE LIES GET BIGGER." It pointed out that dues would amount to only $5 a month after the contract was signed. In the same handbill, referring to the publicity that the county would have to foot the bill for the Bolivar plant if Jervis moved, it asserted that Judge Frost had admitted that this was wrong. Further, it cited county records by book and page number as proof that Jervis would have to pay whether it moved or not and that taxes would not have to be raised to pay for the factory construction. It defined the issues as being only "more money" and "better working conditions" and asserted that these could be obtained only with a union. It thus appears that the campaign was hard fought and that the Union was able to and did combat and reply to practically all the propaganda which had been issued against it. Superficially, and disregarding for the moment the 8(a) (1) violations during the critical period, it could be argued that this is one of those cases which could come within the rule of Hollywood Ceramics Company, Inc., 140 NLRB 220, supra. If there were nothing else in the case, there would be strong reason for upholding the election. On the other hand, considering the 8(a)(1) violations during the critical period, the massive emotional campaign in its entirety, the community leadership. opposed to the Union, the obvious fact that employees, like Sue Chumney, the Company's witness, must have believed that the threats of plant removal were threats by the Company, and the weak and equivocal disavowal by the Company of the moving rumors, everything adds up to my ultimate conclusion that the election which was held on March 16 and 17, 1965, was not held under conditions which assured to the employees a free and objective exercise of their voting privilege. For that reason I shall recommend that the election be set aside and that a second election be held. In coming to this conclusion and in making this recommendation I do so with- out regard to the fact that the record does not support strongly any conclusion that the Company itself inspired the scare tactics utilized againts the Union. On the contrary, by its constant depiction of progress in Bolivar, it indicated that the opposite was the truth. As the Board said in the Falmouth Company, 114 NLRB 896, 901, "Such determination (whether the employer and the businessmen acted in concert to defeat the Union) is not material. The important fact is that conditions existed which prevented a free election. In accordance with our findings herein, we shall set aside the election and direct that a new election be held." I have given serious consideration as well to the fact that, disregarding 83 challenged ballots, only 128 votes were cast for the Union and 501 votes were cast against it. This overwhelming expression against the Union did give me pause for reflection JERVIS CORPORATION 289 because the suggestion well might be made that such a large number of employees must have been fully aware of what they wanted. Yet after reading what I believe to be most of the litigated representation cases having facts similar to the facts of this case, I have come to the conclusion that this disparity in numbers is not so great as to overcome the sum total of all the other factors which mitigate against sustaining the election. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in the 8(a)(1) section of this Decision, having occurred in connection with its business operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Because, after having observed, with the exception of President Harman, all the other high echelon officers of the Company and because I believe that those super- visory employees who did make threats or coercive statements to employees prob- ably did so as a reflection of their own views and wishes and not because of com- pany policy, I do not believe that the unfair labor practices hereinabove found are of a nature to justify a broad form order requiring the Respondent "to cease and desist from infringing in any other manner upon rights guaranteed its employ- ees by Section 7 of the Act." The Company is, however, bound by and must suffer the consequences of the acts of its minor supervisory employees. Irving Air Chute Co. v. N.L.R.B., 350 F.2d 176 (C.A. 2). It should be directed to cease and desist from such 8(a)(1) conduct as specifically has been found herein. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Jervis Corporation, Bolivar Division, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW (AFL-CIO), is a labor organization as defined in Section 2(5) of the Act. 3. The unit as defined in the Regional Director's Order of February 17, 1965, directing the first election, is a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. By interfering with, restraining, coercing and promising benefits to its employ- ees, all as found specifically above, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce 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 pursuant to Section 10(c) of the Act, I recommend that the Respondent Jervis Corporation, Bolivar Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on behalf of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW (AFL-CIO), or any other labor- organization of its employees by engaging in any of the acts or conduct more particularly set forth in subdivisions (b), (c), (d), and (e) of this part of this Order. (b) Interrogating employees about their union membership, activities, or sym- pathies in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (c) Threatening employees (1) that the plant would be moved or shut down if the Union came in, (2) with loss of jobs or discharge because of their union activities, or engaging in surveillance of their union activities (d) Promising employees promotions for the purpose of persuading them not to engage in acts guaranteed by Section 7 of the Act. (e) In any like manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in section 7 of the Act. 243-084-67-vol. 159-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which 1 find will effectuate the policies of the Act: (a) Post at its plant copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to assure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision what steps the Respondent has taken to comply herewith.2 Except to the extent expressly found in the Decision, all other allegations in the complaint shall be, and hereby are, dismissed. I recommend also that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent notifies the said Regional Director, in writing, that it will comply with the above Recommendations, the National Labor Relations Board issue an Order requiring it to take such action. Election To Be Set Aside It is further my recommendation that the election which was held on March 16 and 17, 1965, be set aside and that the Regional Director be instructed to issue an Order directing that a second election by secret ballot be conducted for the Employees in the appropriate unit as promptly as possible, subject to the Board's Rules and Regulations. IIn the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." 2 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 26, 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in and activities on behalf of Inter- national Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization of our employees by engaging in any of the acts or conduct more particularly set forth in paragraphs 2, 3, 4, and 5 of this notice. WE WILL NOT interrogate employees about their union membership, activ- ities, or sympathies in a manner constituting interference, restraint, or coer- cion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT threaten employees (a) that the plant will be moved or shut down if the Union comes in, (b) with loss of jobs or discharge because of their union activities, or engage in surveillance of their union activities. WE WILL NOT promise employees promotions for the purpose of persuad- ing them not to engage in acts guaranteed by Section 7 of the Act. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the Act. JERVIS CORPORATION, BOLIVAR DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) PEPPERELL MANUFACTURING COMPANY 291 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Pepperell Manufacturing Company and Textile Workers Union of America, AFL-CIO, CLC, Petitioner. Case 10-RC-6214. June 13, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election approved February 16, 1965, an election by secret ballot was con- ducted March 5, 1965, under the direction and supervision of the Regional Director for Region 10 among the employees in the agreed unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 2,257 eligible voters, 2,192 cast ballots, of which 959 were for, and 1,155 were against, the Petitioner, 69 were challenged, and 9 were void. The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director, conducted an investigation and, on May 14, 1965, issued and duly served upon the parties his report on objections in which he found that objection 1 raised credibility issues which could be best resolved by record testi- mony at a hearing; and that objections 2, 3, 4, and 5 be overruled. On June 7, 1965, the Employer and the Petitioner filed exceptions to the Regional Director's report on objections. The Employer urged that all of the objections be overruled and that a certification of results be issued. The Petitioner did not except to the recommendation for a hearing, but urged that the Board should sustain the remaining objections and direct a new election. The Board, by Order dated July 14, 1965, adopted the Regional Director's recommendation that a hearing be held with respect to objection 1; and deferred disposi- tion of objection 2, 3, 4, and 5. Pursuant to the Board's Order, a hearing was held September 1, 1965, before Hearing Officer Scott P. Watson. All parties partici- pated and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues. On Octo- ber 6, 1965, the Hearing Officer issued and duly served upon the 159 NLRB No. 9.