Ferroxcube Corp. of America

FERROXCUBE CORPORATION OF AMERICA Ferroxcube Corporation of America and Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO and Round Table Commit- tee, Party in Interest. Cases 3-CA-2813 and 3-RC-3743 June 28, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 15, 1967, Trial Examiner Melvin Pol- lack issued his Decision in the above-entitled proceedings, finding that the Respondent had en- gaged in certain unfair labor practices alleged in the complaint and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the election held in Case 3-RC-3743, and recommended that the said election be set aside and a new election ordered. Thereafter the Respondent, the General Counsel, and the Charging Party filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. As found by the Trial Examiner, Production Manager Bubnack in October 1965 told employees Minkler and Doyle that if the Union got in, negotia- tions would start from $1.25 an hour and not from the employees' present rate. The Trial Examiner held that a similar statement by Respondent's pres- ident that wage negotiations would start from "scratch" interfered with the election. However, he held that Bubnack's statement was not coercive because he saw in it no implied threat that Respond- ent would cut wages if the Union won the election. We do not agree. Bubnack's remarks were only part of a series of similar statements which can only be 1 Marsh Supermarkets Inc., 140 NLRB 899,901-902. z As Rusack's threats were unlawful, they also interfered with the con- duct of the election. Therefore, unlike the Trial Examiner, we rely on this 63 construed reasonably as threats of loss of present benefits and economic reprisal if the Union were designated. In fact, the Trial Examiner found that by telling a group of six employees attending a weekly class in early November 1965 that if the Union got in it was possible that the Respondent could take away all the existing fringe benefits and reduce wages to a minimum, Plant Engineer Rusack engaged in coercive conduct. However, the Trial Examiner reasoned that as he had found no other violations of Section 8(a)(1) of the Act, this single incident did not warrant a remedial order and had not so inter- fered with the employees' free choice as to warrant setting aside the November 23, 1965, election. In our opinion, Bubnack's statement is substantially the same as Rusack's coercive comment, and both of them are remarks such as we have found to con- stitute threats violative of Section 8(a)(1).1 Accordingly, we find that by virtue of Bubnack's conduct in October, Respondent violated Section 8(a)(1) of the Act, and that Rusack's unlawful threats in November were not isolated.2 In this con- nection, we note further that these threats by Bub- nack occurred against the background of the Respondent's conceded violation of Section 8(a)(2) by its unlawful assistance to the Round Table Com- mittee. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Ferroxcube Corpora- tion of America, Saugerties, New York, its officers, agents, successors , and assigns , shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Add the following as paragraph 1(b), the present paragraph 1(b) being relettered as para- graph l(c): "(b) Threatening its employees with loss of benefits and economic reprisal for engaging in union activities." 2. Add the following as the third indented para- graph of Appendix A: WE WILL NOT threaten our employees with loss of benefits and economic reprisal for en- gaging in union activities. IT IS FURTHER ORDERED that the election con- ducted herein on November 23, 1965, be, and it hereby is, set aside. [Direction of Second Election omitted from publication.] interference, as well as that found by the Trial Examiner, in setting aside the election. 166 NLRB No. 12 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: In this con- solidated proceeding under Sections 9(c) and 10(b) of the National Labor Relations Act, as amended (herein called the Act), the issues to be decided are whether Respond- ent interfered with, restrained, and coerced its em- ployees in the exercise of their rights to self-organization, and whether the objections filed by the Union to the results of an election held on November 23, 1965, should be sustained and the election set aside. i A hearing was held before Trial Examiner Melvin Pol- lack on December 6, 7, and 8, 1966, at Kingston, New York. Briefs filed by the General Counsel, Charging Union, and Respondent have been considered. Upon the entire record,2 and my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation, is engaged in the manufacture, sale, and distribution of electrical com- ponents and related products at its plant in Saugerties, New York. During 1966, Respondent received goods and materials from out-of-State suppliers valued in excess of $50,000. I find, as Respondent admits, that Respondent is engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction is warranted. H. THE LABOR ORGANIZATIONS INVOLVED The Union and the Round Table Committee are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Factual Situation: Issues Pursuant to a representation petition filed by the Union on September 8, 1965,3 an election among the employees of Respondent's plant in Saugerties, New York, was con- ducted by the Board on November 23. The results were that 388 votes were cast for and 417 votes were cast against the Union. On November 29, the Union filed timely objections to the election and on December 9 it filed the charge which initiated the present complaint proceeding. The issue, broadly stated, is whether Respondent, by the statements of its supervisors, violated ' Pursuant to charges filed on December 9, 1965, and February 11, 1966, and objections to the election filed on November 29, 1965, the Re- gional Director for Region 3 on March 4, 1966, issued an order con- solidating cases, complaint, and notice of hearing. The complaint, inter aha, charged Respondent with giving unlawful aid, assistance, and sup- port to the Round Table Committee since on or about June 9, 1965, in violation of Section 8(a)(2) and (1) of the Act. Respondent amended its answer at the hearing to admit these allegations of the complaint and the parties stipulated that there had been no meetings of the Round Table Committee since August 19, 1965. The Regional Director overruled the Union's objections to the election except for objection 2(a), stating "that the Employer by its president and other supervisors threatened and attempted to coerce the Ferroxcube workers at captive audience meetings held on and after October 13, 1965, and in individual interviewing." Section 8(a)(1) of the Act, and by these statements and by statements made by President Ned Bouymaster in a se- ries of preelection speeches and letters to the employees so interfered with the free choice of its employees as to require that the November 23 election be set aside.4 B. The Alleged Violations of Section 8(a)(1) of the Act The General Counsel relies on the following incidents to support his contention that Production Manager Harry Bubnack, Supervisors Agnes Gardner and Mary Lou Dengler, and Plant Engineer John Rusack engaged in conduct violative of Section 8(a)(1) of the Act.s 1. By Production Manager Bubnack Production Manager Harry Bubnack supervises the operations of 200 employees in Respondent's ferrite production department. In August, during the Union's or- ganizing campaign, Bubnack told Blanche Dunn that he was surprised at her for "always hanging around with those guys" and, as her deceased husband had been a su- pervisor, that she should appreciate how hard it was for the Company to get along. Dunn said, as a widow, she was interested only in "seniority, better wages, and a pen- sion plan." Bubnack replied she would get it "but it takes time." As nothing in the record indicates that Dunn con- cealed her union activity, or that Bubnack's knowledge of her union activity was obtained surreptitiously, I find no merit in the General Counsel's contention that Bubnack's remark about "hanging around with those guys" created an "impression of surveillance." In the context of the en- tire conversation, I consider Bubnack's comment that Dunn would in time get improved working condition an expression of opinion rather than a promise of benefits il- legally conditioned upon the employees' rejection of the Union. During the summer of 1965, Bubnack said to Virginia Tobiassen that he hoped she "wasn't for the Union." Tobiassen replied that she "could go out the door in no time without the Union" and Bubnack declared "it would never happen" and that he did not think the Union could do any good. As I do not believe that Tobiassen could reasonably have taken this last remark as a threat that Respondent would thwart collective bargaining by refus- ing to bargain in good faith with the Union if the em- ployees selected the Union as their bargaining represen- tative. I consider the General Counsel's reliance on Raytheon Company, 160 NLRB 1603, 1608, misplaced, and find that Bubnack's remark was a privileged expres- sion of opinion that union representation would accom- plish nothing for the employees. 2 The General Counsel's motion to correct the record is granted. 3 All dates hereafter are in 1965 unless otherwise stated. 4 There is no contention that Respondent engaged in unlawful support of the Round Table Committee (see In. 1, supra) after the filing of the representation petition on September 8 which would warrant setting aside the election. Although the objections to the election made no reference to preelection letters, the letters are appropriately considered in determin- ing whether the election should be set aside International Shoe Co., 123 NLRB 682, 684. 5 As the General Counsel does not contend that President Bouymaster's preelection speeches and letters were violative of Section 8(a)(1) of the Act, I have not considered them a basis for finding that otherwise privileged supervisory statements are violative of the Act. Cf. Greensboro Hosiery Mills, Inc., 162 NLRB 1275. FERROXCUBE CORPORATION OF AMERICA 65 In the latter part of September, Margaret Dunn and Doris Atkins asked Bubnack if they could be made lead operators. Bubnack said lead operators were not neces- sary in their department. Dunn and Atkins argued that it was not fair for them "to train new girls and not being paid for it as it is done in other departments." Bubnack said Respondent could do nothing , that its hands were tied, but "once the election was over they would do it then." He added that Respondent had a new president and the employees "should give him a chance."6 I find no coercive promise of benefit in the foregoing remarks of Bubnack. His comments about leadgirls and his com- ments about other, unspecified benefits after the election embellished his appeal to Dunn and Atkins to give Respondent's new president "a chance" and could not be reasonably viewed by them as commitments of promo- tions and other benefits if the Union lost the election. In October, Bubnack expressed his "hope" to Earl Minkler and Jerry Doyle that the Union would lose the election so that Respondent could prove what it had said. Bubnack remarked in another conversation with Minkler and Doyle that , if the Union got in, negotiations would start from $ 1.25 an hour and not from the employees' present rates of pay. Bubnack's reference to Respond- ent's proving what it had said if the Union lost the elec- tion is much too vague to constitute an implied promise of benefits contingent upon defeat of the Union at the election. His statement to the effect that wage negotia- tions would start from scratch is not per se violative of the Act, and I see no implied threat that Respondent would cut wages if the Union won the election. Cf. Marsh Su- permarkets, Inc.,- 140 NLRB 899. 901-902, and Surprenant Mfg. Co., 144 NLRB 507, 516-517, where "bargaining from scratch" statements in context con- stituted threats to discontinue existing benefits if the em- ployees voted for union representation. In October, when Mary Brady asked Bubnack about a raise, he replied that Respondent could do nothing at this time because its hands were tied but that things would be better when "the general situation was cleared up." I find no coercive promise of benefits in Bubnack's remarks. Brady would fairly understand from these remarks that Respondent was deferring wage increases which might be viewed as interference with the election but not that in- creases would be given after the election only if the Union lost the election. A week or two before the election, Bubnack told Vir- ginia Tobiassen that he wished she was on the side of the Company instead of the Union and that "eventually everything would be a lot better " by giving President Bouymaster a chance. Tobiassen said she had heard that before and was afraid to take another chance for another year. Bubnack replied that "Mr. Bouymaster would do what was right." I consider Bubnack's statements to Tobiassen a privileged expression of views rather than a promise of benefits in return for abandonment of the Union. Between late October 1965 and the election . Bubnack remarked several times to Blanche Dunn as he passed her machine: "Don't forget now. Anything the Union can get for you, the Company can get for you , too .... It takes a little time." I find no coercive promise in Bubnack's reiterated statement to the effect that the employees did not need a union to obtain benefits. Bubnack testified that he told employees that Respond- ent's new management should be given an opportunity to correct existing problems, such as inequities in the job evaluation program and in wages. I find no merit in the General Counsel's contention that these remarks implied that benefits would be forthcoming if the employees re- jected the Union at the election. 2. By Supervisor Gardner Janet Hamilton, a second-shift employee, told Plant Department Supervisor Agnes Gardner on Wednesday night. September 22, that she would not be in the follow- ing night because she was going to Albany the next day to attend a hearing on the Union's representation petition. Hamilton attended the hearing on Thursday but returned to the plant that night and told Gardner the hearing was going over to the next day but that she would report to work if she got back from Albany at "a fairly early hour." Gardner pointed to work at Hamilton's table and said, "This is your work." Hamilton asked Gardner if she could speak to her in a nearby office and Gardner and Hamilton walked into the office. Hamilton told Gardner that she needed her job and asked her whether going to the hearing would affect her job in any way. Gardner said it would not affect her job and asked Hamilton why she favored the Union. Hamilton said she thought the Union would do many good things for the employees. Gardner said, "Well, I cannot stop you from being for the Union," and asked Hamilton not to discuss union affairs during working hours. Hamilton said she did not do so. In view of Gardner's assurances to Hamilton that going to the Board hearing would not affect her job in any way, I find no coercion in her remark to Hamilton. "This is your work." and ascribe the remark to Gardner's displea- sure at learning that Hamilton might be away from work for a second night. I likewise find in these circumstances that Gardner's inquiry why Hamilton favored the Union was not coercive. 3. By Supervisor Dengler About 2 weeks before the election on November 23, 1965. Planes Department Supervisor Mary Lou Dengler told employee Gail Walton that she did not think the Union would do any good and that the employees would probably regret having the Union in. I see no threat of economic reprisal, express or implied, in these remarks of Dengler and find that they constituted no more than a privileged expression by Dengler of her view that the em- ployees would gain nothing by union representation. 4. By Plant Engineer Rusack In early November 1965, Plant Engineer John Rusack told a group of five or six employees attending a weekly class that if the Union got in it was possible that the Com- pany could take away all the existing fringe benefits and reduce wages to a minimum. He added that he did not be- lieve the Company would do this. Rusack's last remarks did not entirely dissipate the coercive effect of his gratuitous comment that Respondent might reduce wages and take away existing benefits if the Union got in. How- ever. I do not believe that this single incident of super- 6 Ned Bouymaster became Respondent's president on September 16 or 17,1965 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory coercion over a period of several months warrants a finding that Respondent violated Section 8(a)(1) of the Act, or so interfered with the employees' free choice as to warrant setting aside the November 23. 1965, election. IV. THE OBJECTIONS TO THE ELECTION A. President Bouymaster's Speeches and Letters to the Employees The Union filed its representation petition on Sep- tember 8, 1965. Ned Bouymaster became Respondent's president "around September 16 or 17." Bouymaster held a series of 38 meetings lasting 30 to 45 minutes each with groups of from 13 to 45 plant employees before the election on November 23, 1965. The meetings were con- ducted between October 13 and November 19, 1965. At each meeting Bouymaster discussed the history of the Company, its products, and the division of its "sales dollar," including a comparison of "the amount that went for wages with our company with how much went for wages at other companies" and the cost of "fringe benefits" to Respondent. Bouymiaster had a list of 32 "questions and answers regarding the Union activities" and read from 1 to 6 or 7 of those questions and answers at each meeting. The 32 questions included the following: QUESTIONS * * * * * 5. If the Union should win the election, will the employees of the Company get the things the Union has been promising? Answer: There is no way for the Union to force this Company to fulfill the promises that the Union has made to you. The Company does not have to agree to fill any promises made by the Union. The Com- pany will make only those improvements in wages and benefits which are reasonably and in the best in- terest of you and your company. 6. If the Union should win the election. will the employees have to go out on strike? Answer: The only way the Union can try to force the Company to agree to anything unreasonable that the Union has been promising, is to make you go out on strike. Promises are cheap, but it is something else for the Union to fulfill these promises. 7. If the Union calls the employees out on strike, will they be paid while the strike is going on? Answer: No, if you don't work, you don't get paid. The Company won't pay your wages and neither will the Union. Sometimes Unions pay a few dollars to strikers to carry picket signs. If strike benefits are paid by the Union. the amounts are small. Get a definite commitment in writing from the Union as to what you will get when you are out on strike. Also. remember, you don't get unemployment insurance from the state for 49 days while you are out on strike. 8. If the Union calls a strike, can the employees lose their jobs? Answer: Yes, if the Union makes you strike to force the Company to agree to the Union's promises, then under the law, the Company is free to replace the strikers. This means that after the strike is over, you no longer have a job and the law does not force the Company to re-hire you. You have seen this happen in other plants. Remember, there are many un-em- ployed workers who are looking for your jobs. * * * * 16. Why shouldn't we join the Union and pay $4 or $5 every month just for insurance? Answer: Union or no Union, this company will al- ways pay competitive and fair wages and benefits. The Union cannot force us to pay more than we can afford to pay. This company has always recognized the principal of seniority if the employee is able to do the available work, so that a Union is not needed for job protection. The Company can give you more in- surance than the Union because it is the Company that provided the work and strives to maintain full employment. With the Union. there is always the danger of strikes and work stoppages with con- sequent unemployment. This is not insurance; this is built-in insecurity. Before this Company came to town, there was a lot of unemployment. 19. Won't I get more money if the Union wins the election? Answer: Not necessarily. Union demands for more money are negotiable. The Company can always say "NO". With or without a Union the Company will grant fair wages consistent with its ability to pay and with comparable wages in the locality. Special mone- tary inducements such as incentives , bonuses, and the like are often forbidden in Union contracts. Even if a Union contract calls for more money, if your wages are pegged too high, there may be fewer jobs. 20. The Union rate for jobs is higher than I am paid now. Won't I get more money by getting the proper rate for my classification? Answer: There is no such thing as established Union rate. This rate is frequently only the accumulated promises of the Union organizers. In analysing the job description for classifications, you may find that you do not perform all of the tasks required for the classification for which you think you belong. On re-classification, the rate you may receive may be lower than you are presently getting. 21. The Union agent tells us that with a Union we'll get everything we have now plus more. Is this true? Answer: Bargaining on a Union contract does not start from a base of the present benefits. All present benefits are as much a subject of negotiation as are demands for additional benefits. The Union may trade present benefits for Union security, such as Union shop and check-off. Employees may be guinea pigs to Union principle and end up with less in terms of wages and benefits , in addition to being required FERROXCUBE CORPORATION OF AMERICA 67 to pay initiation fees, dues and perhaps even assess- ments. Remember, the Union is very interested in the $30,000 to $40,000 a year that they expect to col- lect from you. 22. How do we as employees know that we will continue to enjoy the benefits we have unless we join the Union and negotiate a contract? Answer: The contract is no better than the ability of the Company to continue to remain in business. Without a contract, the promises of the Company to the employees set out in your employee handbook is certainly every bit as good as a negotiated agreement with the Union. Both depend on the ability of the Company to continue the business and to make a profit. Without a Union, the Company will not have to face the threat of strikes or secondary boycotts (where the employees of this Company are used to organize employees of another Company). Without a Union we can guarantee uninterrupted production and delivery to our customers. The security of em- ployees to the promises and benefits that a company gives without a contract is every bit as good as with a labor contract. 23. Why is the Company fighting the Union? Answer: We do not think a Union is necessary or beneficial to the best interest of either the Company or the employees. The employees are entitled to hear management's views on unionization. Many Union demands, if fulfilled, could result in the Company being non-competitive in its services or products. This could result in fewer jobs. Where the Company says "NO" to Union demands, the Union may strike. These situations are not in the best interests for all of us. Union policy may be served to the detri- ment of both the Company and its employees. This Union which is seeking to organize you has a long and bitter strike record. Lately there have even been questions of corruption in its operation. A good ex- ample is the recent election for the President of the Union. It has been alleged that the past President rigged the ballots. Bouymaster stated that he generally replied to em ployee questions about the Union by reading answers from the prepared list. A number of employees gave credible testimony, however, that Bouymaster did not limit himself to the answers on the list in his remarks about the Union. At a meeting attended by Gail Walton, Bouymaster commented that the Union could call out the employees on strike at any time and, when Walton said the Union's constitution required a majority vote, related an incident where a standing strike vote was taken at a meeting where there were only 100 chairs for 300 people attending the meeting. At another meeting attended by Ronald Wells, Bouymaster referred to the Union's "long strikes" against "General Electric and some of the bigger companies." Bouymaster told employees at a meeting at- tended by Mary Callahan and Jane Vail that the Union had "a long history of strikers" and mentioned the Union's strike against General Electric in Schenectady. Eight employees testified about a meeting held at 8:30 a.m. on October 13, 1965. According to Mary Brady,' Bouymaster said the Company "was doing well" and "was going to do all in [its] power to keep [the Union] out." He said the Union could guarantee nothing, that if it came in there was nothing to stop the Company from reverting "to the minimum wage law in the state for negotiating purposes," that the Union could not even guarantee the employees present benefits, and that the employees "could stand to lose some of these benefits" because the Company paid out 63 or 68 cents of every dollar to the employees. He said that the employees "also stood to lose if the Union came in, because this Union is notorious for strikes." Referring to a paper in his hand, Bouymaster cited a number of strikes conducted by the Union and how long they lasted. At this point, Brady spoke up and said, "Mr. Bouymaster, excuse me, a union never calls a strike, it's the members. Bouymaster replied, "And how do they do that. They bring 300 people into a hall that has a seating capacity for 100 people, and you take a standee vote." Employee Jerry Doyle said the Union represented the employees at Respondent's "sister company" in Mt. Vernon and that there had not been a strike in 15 years. Bouymaster replied that was possible. Brady then said the employees "would not stand to lose but would add to existing conditions." Bouymaster an- swered, "Not necessarily." The meeting concluded after some discussion on union dues and employee complaints about their pay. Brady's description of the meeting is substantially con- firmed by the testimony of other employees present at this meeting. Leroy Hasse testified that President Bouymaster talked about fringe benefits and said "negotiations would start from scratch." John Doyle testified that Bouymaster "read off certain things about benefits and what it cost for each person"; that Bouymaster had "newspaper clippings" about the Union's strikes "in different parts of the country"; and that a few minutes after somebody asked a question about benefits if the Union got in, Bouymaster said "we would revert to the minimum and negotiate from there on up."8 Virginia Tobiassen initially recalled that Bouymaster said that the Union was "notorious for strikes," that if the Union got in, "we would have to ... probably revert to about $1.25 an hour and work from there," and that the employees would pay $48 to $50 in union dues. She also said that Jerry Doyle spoke "about a place up in Vermont . and in all the years the Union had been in there ... they hadn't any strikes." Upon being shown a statement she gave to a Board investigator, she further recalled that Bouymaster said if the Union got in "it didn't necessarily mean that we were going to get more than we were getting now" and that the Union "couldn't guarantee anything that we are getting now." Martha Dunn recalled that Bouymaster gave reasons why the employees did not need the Union, that he said the Union was "notorious for strikes," that he spoke about a strike vote in a small room "... with 200 standing, and 100 sitting, and they asked for a standing vote, so they already had 200 votes, nobody needed to stand up." She further recalled that Bouymaster said union dues would cost $4 a month or 7 I paraphrase in the text a portion of Brady's statements in an affidavit 8 Doyle also confirmed Brady's testimony about Bouymaster's remarks given to a Board investigator. Brady verified these statements as "true " at on union dues , the Union's representation of employees at "some plant in the time she made them. See Airfon Radio Corporation, LTD, dlbla Irvington," and "questions asked why don't we get more money." KFSD-TV, 111 NLRB 566, 567, In 1. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $48 a year, and the employees "could just as well get all the Union was going to give without that, because we would have to start at the beginning with negotiations for approximately $1.25 an hour and benefits, too, we would have to start from the beginning." Earl Minkler testified that Bouymaster said that if the Union got in "they would start negotiating from the bottom." Margaret Dunn testified that Bouymaster said that negotiations would start at $1.25 an hour if the Union got in and that the em- ployees could lost their fringe benefits; that Bouymaster "told about different places where they had all these strikes"; and that he mentioned taking a strike vote by "bringing 300 people into a room where there [was] only enough room to seat 100 and 200 had to stand and they already had a majority vote." Theresa Hamar testified that strikes were discussed at the meeting and Jerry Doyle mentioned that the Union had represented em- ployees at another company plant for 15 years without a strike, and that Bouymaster said he "felt things ... could be worked out without a union" and that in the long run the Company and the employees would both lose because of strikes. In addition to the series of meetings with the em- ployees, President Bouymaster sent them letters dated November 9, 16, and 18, 1965. The November 9 letter closed as follows: You have been told that the Union will force the Company to grant higher wages and greater benefits. As to that, I assure you that the Union will make no difference. Remember, with a Union these things have to be bargained for with the Company and you don't get them automatically. Ferroxcube in any event will do those things which in our judgment, are good business practice and, therefore, good equally for the employees and the Company. Of course, I am also a new president. But I have it within my control to determine wages, hours, and working conditions. I don't think that you should have to pay dues to make this the best place there is in which to work. I am not just concerned with num- bers. I am sincerely concerned with your needs and your problems. This is the only way to make this Company profitable and all of us successful. I hope I'll have the opportunity to work with you directly in the coming years. To make this possible. . . VOTE NOON NOVEMBER 23. The November 18 letter reads: Strikes and threats of strikes are the main weapons of any union. This is not to imply that strikes, threats of strikes, or violence are inevitable, but the IUE must live with its own record. Look over the at- tached list-a small percentage of the IUE strikes called during the last year or so.9 Also, please notice the newspaper clippings. Think of what it must have been like in the peaceful town of 9 The list enumerates 48 strikes conducted by the Union in 1964 and 1965 10 The newspaper clipping on the Hillsdale strike is reprinted as Appen- dix B to this Decision I I reject Respondent's argument in its brief that the Union conducted an extensive election campaign and that it answered Bouymaster's argu- Hillsdale, Michigan-a town of 7700 people. The IUE came in-organized the plant and months of violence and loss of income followed.10 Look at the dissension these hired men of the IUE have already caused here. What possible benefit can it bring us to have our Company slandered and criticized on the radio before our neighbors, commu- nity and our customers? It's our Company and we can make it the best place to work through close cooperation. B. Analysis and Recommendation The message conveyed by President Bouymaster in his preelection speeches and letters was to the effect that: If the Union won the election, negotiations over wages and benefits would begin from "scratch." The Union could get nothing for the employees that Respondent was un- willing to give and negotiations could result in lower wages and the loss of existing benefits. The Union was "notorious for strikes" and the employees could lose their jobs as the result of a strike.Bouymaster attached a list of union strikes and a newspaper account of strike violence to his November 18 letter. In General Industries Electronics Company, 146 NLRB 1139, 1140, the Board held that such a message and emphasis on strike violence "could only lead em- ployees to understand that their selection of Petitioner as their bargaining representative would inevitably lead to a strike, violence, and likely loss of jobs if Petitioner should attempt to achieve better conditions of employ- ment than those currently in effect." The Board therefore found that "an atmosphere of fear and of complete futility in selecting Petitioner as a bargaining agent was thereby created, and that such atmosphere prevented the em- ployees' exercise of free choice in the election." As I con- sider the present case governed by General Industries, I conclude that President Bouymaster's preelection speeches and letters prevented the employees from exer- cising a free choice at the November 23, 1965, election and recommend that the Board set the election aside. I t V. THE REMEDY As Respondent admits the allegations in the complaint that it unlawfully assisted and supported the Round Table Committee in violation of Section 8(a)(2) and (1) of the Act, I shall recommend that it cease and desist from such conduct and that it take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent's conduct improperly affected the results of the November 23, 1965, election, I shall recommend that the election be set aside and that Case 3-RC-3743 be remand d to the Regional Director for Region 3 for the purpose o ducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. merits and corrected any possible misstatements by him. While the Union had an opportunity to present its case and to correct possible misstate- ments by Bouymaster, it could not offer the employees assurances that Respondent would accept the principle of collective bargaining if the Union won the election and thus make possible the obtaining of wage in- creases and other benefits without a strike. FERROXCUBE CORPORATION OF AMERICA RECOMMENDED ORDER Upon the entire record in the case , and pursuant to Section 10(c) of the Act, it is recommended that Respon- dent, Ferroxcube Corporation of America , Saugerties, New York, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Giving assistance and support to the Round Table Committee by permitting elections for committee representatives to be conducted during working hours and by supplying materials with which to conduct these elections, and by recognizing and negotiating with the committee with respect to hours, wages , and other terms and conditions of employment of its employees , unless and until the committee shall have been certified by the Board as the exclusive representative of such employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Withdraw and withhold recognition from the Round Table Committee , or any successor thereto, as the exclusive bargaining representative of its employees, un- less and until said committee shall have been certified by the Board as the exclusive representative of such em- ployees. (b) Post at its Saugerties , New York, plant copies of the attached notice marked "Appendix A."12 Copies of said notice, to be furnished by the Regional Director for Region 3, after being signed by Respondent's representa- tive , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith. 13 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than found in this Decision. IT IS FURTHER RECOMMENDED that the election which was held on November 23, 1965, be set aside and that Case 3-RC-3743 be remanded to the Regional Director for Region 3 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. APPENDIX A NOTICE TO ALL EMPLOYEES 69 Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT give assistance and support to the Round Table Committee, or any successor thereto, by, permitting elections for committee representa- tives to be conducted during working hours or by supplying election materials. WE WILL NOT recognize and negotiate with the committee with respect to wages, hours, and other terms and conditions of employment, unless and until the committee shall have been certified by the Board as the exclusive representative of our employees. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to form, join, or assist International Union of Electrical , Radio and Machine Workers, AFL-CIO, or any other labor or- ganization, to bargain collectively through represen- tatives of their own choosing or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. FERROXCUBE CORPORATION OF AMERICA (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100. APPENDIX B ESSEX WIRE TO FIGHT CLOSE OF HILLSDALE UNIT AS GUARDSMEN EASE LABOR STRIFE IN TOWN BY RONALD G. SHAFER 12 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 1 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 3 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." STAFF REPORTER OF THE WALL STREET JOURNAL Hillsdale, Mich. - "Nobody minds having troops in Hillsdale if that's what is needed to keep people from getting hurt." Thus Mrs. Donald Conklin, a variety store clerk, sums up the local reaction to Gov. Romney's dispatch of Na- tional Guardsmen to this southern Michigan town, which has been torn by labor strife. The 230 troops moved in over the weekend to try to prevent further violence in connection with the three-month-old strike at the Hillsdale plant of Essex 308-926 0-70-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wire Corp. The governor also ordered the struck plant closed, an end to picketing and the disarming of company guards. The action seemed to ease the tension among the 7,700 residents somewhat, but company officials said over the weekend that they would go to Federal court today to seek an injunction against the closedown of the plant. Walter Probst, company president, said he agreed to the order "under protest." The turmoil began Feb. 28 when 180 members of the International Union of Electrical Workers struck the plant over wages and grievances. Negotiations were held sporadically and the plant continued to operate with su- pervisory personnel and newly hired workers. At the time of the closing, the job force numbered more than 90. Violence Reached Near-Riot Stage Violence had been increasing almost daily before the troops arrived, reaching a near-riot stage last week. "The troops should have been sent here two weeks ago. One more night, and the state police never could have stopped the crowd. Somebody would have been killed," says a local restaurant manager. The unrest had grown to include a bombing, knifings, at least one shooting and destruction of automobiles. There have been numerous clashes at the plant gates. The weather-beaten, brick plant has been sealed off by a ring of National Guardsmen with full combat gear, in- cluding carbines. The troops will be there "as long as peo- ple and property are in danger," Gov. Romney has said. The strike is "the only thing that has ever got people mad at each other around here, except for school elec- tions," says John Bullard, a Federal livestock inspector. Even so, most people not directly involved avoid taking sides. "Most folks don't care who wins. People are just sick of the whole thing and want to get it over with," says W.B. Ewing, who has lived here for 30 years. Racial Issue Cited "Both sides are to blame," George Calhoun, a retired factory worker, says. But, like many other townspeople, he adds: "When the company began bringing in colored workers that made a lost of people mad." Many of the guards and newly hired workers were Negro, and some law officials figure this may have sparked some of the trouble. But Paul Albrechta, a company lawyer, denies this. He says the violence began well before guards and workers began coming in from out of town. "Negotiations by both labor and management have been poor, and both sides are to blame for the violence," says Mayor C. Audrey Paul, a 48-year-old insurance agent and county chairman of the Republican Party. "On the union side, the trouble is caused by a few radi- cals in town and union members from other plants," says Mr. Paul. "And when the company started from the beginning of the strike to bring in workers from out of state and armed guards it was like waving a red flag in front of a bull. Right or wrong, that only means trouble for Hillsdale." Many people here hope the governor's actions will force an early settlement. Gov. Romney announced negotiations were to be resumed after more than a week of no official contact between the parties. But the people aren't optimistic. Many agree with one city official who said: "If these troops are here until an agreement is reached, they could be here a long time."