Danadyne, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Danadyne, Inc. and Teamsters Local 35, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Petitioner. Case 22-RC-4328 April 27, 1970 DECISION AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Pursuant to a Stipulation for Certification Upon Con- sent Election approved by the Regional Director for Region 22 on April 3, 1969, an election was conducted on April 17, 1969, in the above-entitled proceeding, under the direction and supervision of the said Regional Director. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 41 eligible voters, 39 cast ballots, of which 19 were cast for, and 20 were cast against, the Petitioner. There were no challenged ballots. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. On May 27, 1969, the Regional Director issued his report on objections, order directing hearing, and notice of hearing. The Regional Director found that since a decision as to the merits of the objections depended on a resolution of credibility, a hearing should be held before a duly designated Trial Examiner for the purpose of receiving evidence and resolving the issues raised; he directed that the Trial Examiner prepare a report containing findings of fact, including resolutions of credibility, and recommendations to the Board as to the disposition of said issues. A hearing was held on July 16, 1969, before Trial Examiner Boyd Leedom. The death of Trial Examiner Leedom on August 11, 1969, prevented issuance of a report on the matter. On October 20 and 21, 1969, a hearing, de novo, was held before Trial Examiner William F. Scharnikow. On November 24, 1969, Trial Examiner Scharnikow issued his Report on Objections, attached hereto, in which he found that certain state- ments concerning a change in health insurance coverage made to employees by Respondent's president and vice president constituted an improper attempt on the part of the Employer to influence its employees to vote against the Petitioner in the April 17, 1969, election. On the basis of this finding, the Trial Examiner recom- mended that the April 17, 1969, election be set aside and that a second election be conducted.' Thereafter the Employer filed timely exceptions and a supporting brief. 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 con- nection with this case to a three-member panel. ' As there are no exceptions to the Trial Examiner's recommendations that the remaining objections be overruled, we adopt, pro forma, the Trial Examiner's recommendations as to them The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees employed by the Employer at its Avenel, New Jersey, location, excluding all professional employ- ees, office clerical employees, guards, watchmen, and supervisors as defined in the Act. 5. The Board has considered the Trial Examiner's Report, the Employer's exceptions and brief, and the entire record in this case, and hereby adopts the findings and recommendations of the Trail Examiner only to the extent they are consistent herewith. We find in agreement with the Employer that it did not engage in conduct which justifies setting aside this election. On January 29, 1969, a month and a half before the filing of the petition, employee Madurski asked the Employer to investigate the possibility of changing the Company's existing medical-health insur- ance plan to one offered by Blue Cross. The Employer's vice president, Britt, agreed to look into the matter. On February 5, a Blue Cross representative discussed with Britt the details of Blue Cross coverage, and Britt instructed his accountant to obtain and analyze cost figures from Blue Cross and other insurance companies. Therafter, on a date in March, also prior to the filing of the petition, Britt told Madurski that he, Madurski, was right, Blue Cross benefits were superior. During this period, the Employer continued its investigation into Blue Cross coverage. The petition was filed March 17. Shortly before the election, which was held April 17, Madurski was in Britt's office to talk about another matter, and Britt mentioned, as Madurski was leaving, that the Employer was "seriously looking into the Blue Cross-Blue Shield." Britt made a similar statement to employee Gyure. In speeches to employees 2 days before the election, the Employer's president, Conklin, told employees they did not need a union, truthfully pointed out that the Employ- er had reviewed wages and benefits about the same time the previous year (in May), and stated that employ- ees' suggestions were always taken into account. The Employer referred to the Blue Cross situation as an example: For instance, we have received some comments that our health insurance and major medical plans 182 NLRB No. 26 DANADYNE, INC. are good, but daily hospital rate allowances need revision. Such comments as these are considered when we make our annual review. We find that the facts do not support the finding of the Trial Examiner that the Employer improperly "held" before employees the possibility of a change to Blue Cross to influence their vote in the election. Under Board law, the Employer had to continue consid- ering any change in benefits that it had commenced considering before the petition was filed, or it would have appeared the Employer was punishing the employ- ees because of their organizational efforts. Here, the fact that the Employer was considering the insurance change was known to employees as early as January, a month and a half before the petition was filed; indeed, it was a question from an employee at that time that had prompted the Employer to consider the change. Therafter, during the critical period, the Employer did no more than advise employees the change was still being considered. Aside from the fact that the Employer had a duty to continue acting as it had before the petition was filed, we believe the Employer had a right to be judged on its past record with regard to employee suggestions. Part of that record in the instant case was its undertaking to consider a change to Blue Cross, and, in our view, this was a legitimate point for the Employer to make in the election campaign. As we find that the Employer has not engaged in any conduct which justifies setting the election aside, and as the tally of ballots shows that a majority of valid ballots has been cast against representation by the Union, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has been cast against representation by Teamsters Local 35, International Brotherhood of Teamsters,Chauf- feurs, Warehousemen and Helpers of America, and that said Union is not the exclusive representative of the employees in the appropriate unit, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. TRIAL EXAMINER'S REPORT ON OBJECTIONS WILLIAM F. SCHARNIKOW, Trial Examiner: On May 27, 1969, the Regional Director issued his Report and Order for a hearing on the Petitioner's objections to the conduct of the Employer allegedly affecting the results of a representation election which had been conducted by the Regional Director in the above-entitled case on April 17, 1969, and in which, according to the official tally of ballots, 20 of the 39 valid votes cast by eligible employees were cast against, and 19 for, representation by the Petitioner. In his report and order, the Regional Director summarized the substance of his investigation of the Petitioner's objections pur- suant to Section 102.69 of the Board's Rules and Regula- tions and, concluding that the objections and certain other matters suggested by his investigation raised issues of credibility, ordered that a hearing be held before 175 a duly designated Trial Examiner of the Board for the purpose of receiving evidence and that, upon the basis of such evidence, the Trial Examiner then prepare and serve upon the parties a report containing his findings of fact, including resolutions of credibility, and his rec- ommendations to the Board as to the disposition of the following issues which the Regional Director held to be material on his consideration and investigation of the Petitioner's objections: (1) Did Thomas M. Britt, the Employer's vice presi- dent, tell employees that the plant would close if the Union (the Petitioner) won the election? (2) Did Vice President Britt tell an employee that certain employees would be fired for union activity? (3) Did Vice President Britt interrogate an employee as to the identity of those individuals who had signed authorization cards for the Union? (4) Did Vice President Britt tell employees that the insurance plan was to be changed from Metropolitan to Blue Cross?' On July 16,1969, the hearing directed by the Regional Director was held and oral evidence and exhibits were received before Trail Examiner Boyd Leedom, the Trial Examiner originally designated by the Chief Trial Exam- iner. But Trial Examiner Leedom's death on August 11, 1969, prevented his issuance of a Report on the matter. Thereafter, in response to an order to show cause issued by the Chief Trial Examiner on August 19, 1969, and duly served upon the Regional Director, the Petition- er, and the Employer; the Employer objected to the designation of another Trial Examiner to consider the matters referred by the Regional Director on the basis of the record made in the hearing before Trial Examiner Leedom and requested a hearing de novo. Accordingly, on August 29, 1969, the Chief Trial Examiner issued and caused to be served upon the parties an order directing that a hearing de novo be held by a duly designated substitute Trial Examiner on October 20, 1969. Pursuant to this last order of the Chief Trial Examiner and his second designation of a Trial Examiner in this matter, a hearing de novo was held before me at Newark, New Jersey, on October 20 and 21, 1969. The Regional Director, the Petitioner, and the Employer appeared by counsel and were afforded full opportunity to examine and cross-examine witnesses and to introduce evidence on the issues raised by the Regional Director's order of reference. At the hearing, counsel for the Petitioner submitted oral argument on the record in lieu of a brief. On November 5, 1969, a brief was received from counsel for the Employer. ' These four questions are, in substance, the questions referred to the Trial Examiner by the Regional Director The order of their statement has been rearranged to conform to the sequence in which they are considered in the following sections of this Report It will be noted that, for clarity and convenience of treatment after an introductory section A, consideration of the related substance of questions (1) and (2) has been combined in section B, and is followed by a separate consideration of questions (3) and (4) in sections C and D, respectively 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the record of the hearing de novo before me, my observation of the witnesses at the hearing, and my consideration of the Petitioner 's oral argument and the Employer ' s brief, I make the following findings of fact conclusions and recommendations A Introductory Findings and Comments The Petition for Certification of Representative origi- nating this proceeding under Section 9(c) of the Act was filed on March 19 , 1969 Thereafter the Petitioner and the Employer executed a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director on April 3, 1969 Under the stipulation, the election was to be held and was held, on April 17, 1969 On April 3, 10, and 14, the Employer sent letters to the employees in the election unit over the signature of Thomas M Britt , the Employer' s vice president, and, on April 15 (2 days before the election) Britt and President Charles Conklin of the Employer spoke to the employees about the election at two meetings in the plant , one held in the morning for the night- shift employees and some of the employees on the overlapping day shift and the other meeting held in the afternoon for the remaining employees on the day shift In the letters, Britt urged the employees to vote in the election , pointed out that their vote would be secret , and expressed his belief that the employees did not need a union , that their future and the Employer's future would be "best served by a `No' vote," and that a large majority of the employees did not want a union and would vote "No " In the meetings with the employees , Conklin said the Employer did not want a union and Britt urged the employees to vote "No" although he said the Employer would bargain with the Petitioner if it won the election Britt and Conklin read their remarks to the employees at both meetings from prepared texts Britt added , at the afternoon meeting but not at the morning meeting , that no employee would be fired or in any way bothered, because he participated in the union drive , the election , or union activity Britt's letters and the prepared texts which he and Conklin read at the meetings were received in evidence at the de novo hearing before me In the letter of April 10, Britt said among other things, that "If you want to keep your wages and not pay any union for the right to work here, you should vote `No'," and that "If you do not want the possibility of the picket line or strike , you should vote `No' " In its objections, the Petitioner originally referred to these statements specifically , as well as to the letters generally, as constituting grounds for setting the election aside But in his report and order , the Regional Director referred to the Trial Examiner for purposes of hearing, findings, and recommendations , only the specific ques tions which have already been noted In clarification of this limited referral , he stated that During the course of the [Regional Director 's] inves- tigation , the Petitioner withdrew all of its Objections except that which protested alleged threats to close the plant and to discharge employees because of union activity As the Petititioner' s withdrawal includes the Employer' s letter and other written communications referred to in the Objections, no ruling on them is required However , the general attitude of the Employer in opposition to it employees ' selecting the Petitioner as their bargaining representative , as shown by Bntt's let- ters as well as the speeches to the employees, is relevant to my resolution of conflicting evidence on the matters specifically referred to me by the Regional Director And, in making my resolution of these conflicts, I have considered the Employer ' s attitude as shown by Britt's letters, although as will appear I have nevertheless resolved the conflicts generally in favor of the Employ- er's witnesses But the Regional Director' s referral excludes from my inquiry the consideration of any such statements in the letters as grounds for setting the elec- tion aside as was originally urged by the Petitioner in its Objections B Alleged Threats To Close or Move the Plant or To Discharge Employees if the Petitioner Won the Election To support its objection based upon alleged threats by the Employer to close or move the plant if the Petitioner won the election , the Petitioner produced the testimony of John A Madurski, Jr , and Wayne Rothrock , two of the mechanics employed in the election unit Madurski testified that shortly before the election on April 17, 1969, Vice President Britt stopped at Madurski ' s work station and said that if the Union won the election , Britt would shut the plant down Madurski further testified that shortly after this, General Foreman Alfonse Zyskowski told Madurski that Madur ski knew that if the Union got in, Britt would shut the plant down and Madurski would be out of a job Rothrock , the Petitioner's second witness concerning such threats , testified that a couple of weeks before the election , when he stopped for a few minutes at a machine at the back of the plant in order to get a hand truck, he overheard Vice President Britt tell Foreman Nagy and a group of employees , including Mike Urban,' that if the Union got in he would move away or close the plant In his testimony , Vice President Britt denied that he ever told any employee or Foreman Zyskowski that if the Union came in or won the election , the plant would be closed Foreman Zyskowski in his testimony also denied that he told Madurski or any employee that the plant would close if the Union came in or that Britt had told him this would happen This squarely conflicting testimony of the two employ- ees and the Employer's vice president and foreman was all the evidence given at the hearing which directly related to the Petitioner's allegation in its objections that the Employer threatened a plant shutdown if the Petitioner won the election There was no evidence 2 Urban was subpenaed but did not appear nor testify at the hearing DANADYNE, INC. given at the hearing to support the Petitioner 's similar but separately alleged charge in its Objections that before the election the Employer also threatened to discharge some of the workers because of the Union 's activity. But, whatever their source , there were worrisome rumors circulating among the employees before the election that they might be discharged. From Vice President Britt 's testimony as well as that of a number of the employees , - it appears that when employees asked Britt about these rumors, he assured them that they were just unfounded rumors. Thus, Britt testified , as did employee Frank Gyure, another mechanic in the election unit , that a week or so before the election , Gyure went to Britt's office and asked Britt whether it was true as he had heard from other employees that he was to be fired because of union activity , and' that Britt told him it was just a rumor and that no one would be fired . Similarly, according to Britt 's testimony and that of employees Cora Flohs and Catherine Buhl, these two women employees along with employee Mary Sheedy went to Britt 's office before the election and, in answer to their question about rumors they had heard from other employees concerning impending discharges, Britt told the three women that there was no truth to these rumors. Finally, Britt testified without contradiction that employ- ee Ronald Zimmerman also came to his office and asked whether he was going to be fired for union activity and Britt told him , "No. Neither you nor no one else is going to be fired for union activity." Not only does it appear clear from this evidence that Vice President Britt expressly reassured employees before the election that there was no truth to rumors of impending discharges , but his testimony and that of Foreman Zyskowski suggest reasons for the rumors and the employees ' fears for which the Employer was not responsible and which had no relation to the employ- ees' union activity or the coming election . Thus Zyskow- ski testified , on cross-examination by Petitioner ' s counsel who directed his attention to the particular incident, that before the election he overheard several employees talking in the plant cafeteria about the possibility the plant might close "due to financial troubles"; that neither the Union , the election , nor the NLRB was mentioned in this conversation ; that he could not identify the employees since they were sitting behind him; and that he did not turn around nor enter into the conversation because of the possibility that they might talk about the Union , a subject which he wanted to avoid. Britt's testimony concerning a possible reason for the employees ' fearing a layoff or discharge was more involved and suggests a distorted base for Rothrock's testimony that he overheard Britt tell a number of the employees that he would close the plant if the Petitioner won the election . Britt's testimony was that , because a "biax " line of machines had been inoperative most of the time for the preceding year and a half and he had been told by the manufacturer of the machines that it would take 4 or 5 weeks to alter them and make them operative , he had considered laying up the machines and transferring the operators to other depart- 177 ments where they were needed ; that in a series of talks with the operators in this small group and with Foreman Nagy about 2 weeks before the election, he had told them "there was a very good likelihood we would shut down the biax department and rearrange the people "; and that although he had no talks with Rothrock about this , Rothrock may have overheard one of these conversations. Upon consideration of the foregoing evidence , I credit Britt's and Foreman Zyskowski 's denials that they told Madurski or any other employee that the plant would close if the Petitioner won the election. I also credit Britt's denial that he told any employee that certain of the employees would be fired for union activity. Accordingly , I find no credible basis for concluding that Britt told any employee either that the plant would close if the Petitioner won the election or that certain employees would be fired for union activity and recom- mend that the Board overrule the Objections filed by the Petitioner to this effect. C. Alleged Interrogation In his report , the Regional Director stated that in addition to the objections expressly enumerated by the Petitioner , the Regional Director's investigation had revealed the possibility "that Britt had interrogated an employee as to which employees had signed union authorization cards, and that this employee thereafter had told another employee about the incident." The Regional Director noted , however , that "both Britt and the individual alleged to have been interrogated, deny any such occurrence ." Uncertain as to what might be revealed at a hearing , the Regional Director directed that evidence be taken before the Trial Examiner as to possible interrogation affecting the election. On an unfolding of the evidence in the hearing before me, it appeared merely that, according to the testimony of Madurski , employee Ronald Zimmerman told Madur- ski on leaving Britt ' s office on one occasion shortly before the election , that Britt "had asked [Zimmerman] for the names of the people who had signed union authorization cards and [had said] that they would be taken care of." But Zimmerman in his testimony denied not only that he had made any such statement to Madur- ski but also that Britt had asked him for any information as to card signers. Britt, too, denied that he had ever asked any employee , including Zimmerman , for informa- tion as to who had signed authorization cards. Britt further testified that on the occasion he spoke to Zimmer- man in his office (to which I have already referred), Zimmerman had come to his office and asked him, "Am I going to be fired for union activity ?" and that Britt had replied, "No. You nor no one else is going to be fired for union activity." Accordingly, I conclude in answer to one of the Regional Director's questions , that there is no evidence in my record which would support a charge that the Employer through Vice President Britt interrogated any employee as to the identity of those individuals who had signed authorization cards for the Petitioner. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Statements Made to Employees Concerning a Change in Insurance Plan The remaining issue referred to the Trial Examiner by the Regional Director as a result of his investigation is whether within the few weeks preceding the election Vice President Britt made such a promise of benefit as interfered with the election by telling employees "there was to be a change in the medical-health insurance plan from the current one administered by the Metropoli- tan Life Insurance Company to that of Blue Cross." From the evidence taken by me in the hearing, which will now be considered in detail , it appears that although Britt and President Conklin did not tell the employees that there would be a change , they did tell them that serious consideration was being given to the matter of making the change . Under the circumstances, I con- clude that this dangling of a possibility of an attractive change in insurance coverage immediately before the election , although not a definite promise of benefit, was such an improper attempt by the Employer to influence the employees in the election and a disturbance of the "laboratory conditions " under which the Board attempts to conduct its representation elections, that it requires setting the present election aside and directing that a new election be held . We may now turn to the facts shown by the evidence which in my opinion requires this conclusion. For 3 years, the Employer had provided its employees with life , disability , and medical-health insurance under a group policy which had been issued by the Metropolitan Life Insurance Company and was to expire in May 1969. A number of employees , including John Madurski, had from time to time told Vice President Britt that the benefits under Blue Cross were greater than under the Metropolitan medical-health plan . According to his testimony , Madurski had made this comment to Britt in January 1969 and at "many times " over a period of months and had asked Britt to change from the Metropolitan to the Blue Cross plan. Such a request was made by Madurski on January 29, 1969 , a month and a half before the representation petition in the present case was filed, and Britt told Madurski that he would look into the matter . According- ly, on the same day , Britt wrote a letter to Blue Cross asking for information on its group plan . In response, a Blue Cross representative visited Britt at the plant on February 5, 1969 . In February, Britt also asked his accountant to get a cost breakdown and make an analysis of the comparative costs and coverages offered by Blue Cross through Metropolitan and four or five other insurance carriers . As a result of this procedure, Britt received preliminary Blue Cross figures and infor- mation about coverage from the Blue Cross representa- tive on February 5. And, by April 7 at the latest, he also received the rest of the Blue Cross figures directly from Blue Cross and from the four or five insurance companies to whom the Employer's accoun- tant had written .3 Thereafter, Britt forwarded these 3 Submissions of figures by the Metropolitan Life Insurance Company figures to the offices of the Employer' s parent companies and the coverage of the expiring Metropolitan policy was extended from month to month . Finally, as a result of a decision reached in the summer of 1969, a new group policy including life insurance and major medical as well as Blue Cross insurance was secured by the Employer from the Aetna Casualty Insurance Company and became effective on September 1, 1969. In the meantime , after Britt had received the prelimi- nary Blue Cross figures in February , he told Madurski that Madurski was right-that Blue Cross paid greater benefits than were paid under the existing Metropolitan plan. According to Britt 's testimony , which I credit, this conversation took place in March and before the representation petition was filed on March 17. However , after the representation petition had been filed and shortly before the election was held on April 17, Britt called Madurski into his office and they had another conversation about the Blue Cross plan in the presence of Florence Regan (Britt's secretary) and Pro- duction Manager Mladinich .' Britt and Mrs. Regan tes- tified that Britt called Madurski into the office to speak to him about whether Madurski had permission to take some lumber from the plant and, being satisfied that he did , then mentioned Blue Cross since Madurski's request had originally prompted Britt to investigate the possibility of better insurance coverage . Madurski tes- tified however that Britt first spoke to him about the insurance and then, as he was leaving , also about the lumber.' As to what was actually said by Britt in this conversa- tion about the insurance , Madurski testified on direct examination by Petitioner 's counsel "that there might be a change in the hospitalization , we might be getting Blue Cross and Blue Shield." On further examination by counsel for the Regional Director , he also testified that Britt told him "that he was considering changing the hospitalization." But, on then being shown his pre- trial affidavit by counsel for the Regional Director, he testified that Britt said "that he was having the hospitali- zation analyzed and that he would be changing it to Blue Cross and Blue Shield. " (Emphasis supplied.) On later cross-examination by Employer's counsel , Madur- ski testified that his original testimony had been in error and that instead of saying that the insurance "might be changed ," Britt had actually said that it "would be changed." But, especially in view of Madurski 's apparent confu- sion during his testimony as to exactly what Britt had dated March 24, by the Equitable Life Assurance Society dated March 25 and April 7, and by the Prudential Insurance Company dated April 7, in each case including Blue Cross coverage , were received in evidence. A submission of figures and coverage by Aetna Casualty (including Blue Cross) which was eventually accepted by the Employer was not available at the time of the hearing having been forwarded to the Employer 's New York office ' Madurski testified that this conversation took place about 2 weeks before the election, but Britt testified that it occurred about 2 days before the election. Production Manager Mladinich was not a witness and we therefore do not have the benefit of his testimony concerning any part of the conversation DANADYNE, INC. said, I credit the testimony of Mrs. Regan and Britt and find that Britt had called Madurski into the office to speak to him about the lumber and then told Madurski merely that the change of insurance was under serious consideration and might be made. Thus, I credit Mrs. Regan's testimony that Britt said at the end of the conversation, "By the way, John, we are looking into the Blue Cross-Blue Shield." And I further credit the consistent testimony of Britt that he told Madurski as Madurski was leaving the office, not that there would be a change in insurance, but that "we were seriously looking into the Blue Cross-Blue Shield . . . and had established the competitive rates and a breakdown on it." It appears that employee 'Frank Gyure also had a conversation with Britt about the possible change to Blue Cross before the election, when he came to the office and was reassured by Britt that he would not be fired for union activity. Britt testified that at the time he also told Gyure that "we had formulated a thorough analysis of insurance in Blue Cross-Blue Shield and forwarded it for action to the mother company." As a witness for the Petitioner, Gyure had first testified to the same effect," but, after being shown his pretrial affidavit by counsel for the Regional Director, he gave the same type of confused answers as had Madurski on the point of whether Britt had definitely promised a change to Blue Cross or had merely said the change was being favorably considered.7 Upon consideration of this testimony of Gyure and Britt, I find that Britt told Gyure shortly before the election, as he had told Madurski, that the Employer was giving favorable con- sideration to a change to Blue Cross although he made no promise that the change would actually be made. The evidence also convinces me that in their speeches to the employees 2 days before the election, President Conklin but not Vice President Britt made similar state- ments about the prospect of the insurance change. Employees Cora Flohs, Catherine Buhl, and Mary Sheedy attributed these remarks to Britt. But employee Arthur Wilcox testified that it was President Conklin, and not Britt, who said that "he was going to try to get Blue Cross and Blue Shield." The prepared text from which President Conklin read supports Wilcox' testimony. It shows, and I find, that in the course of his remarks to the employees, Conklin mentioned At this point, Gyure's testimony was the following I had mentioned to [Bntt] about Blue Shield, Blue Cross at the time And he had said that they were taking a survey or an analysis of all different insurances, insurance companies and that they were thinking of Blue Shield-Blue Cross, while he didn't actually say he was going to get Blue Shield, Blue Cross, and that was about it [Bntt said] they were going to change They were going through an analysis of all different insurance companies I'm trying to think of the exact words It doesn't come to me I know there was talk about [my wanting] Blue Shield, Blue Cross, and that most of the people in the company would like to have it And then [Britt] said they were taking it into consideration to bring this Blue Shield, Blue Cross into the company in place of other insurance See the following passages from Gyure's testimony set forth in the official transcript from p 50, 1 9, to p 51, I 12; and p 54, 1. 10, top 55,1 14 179 the Employer's willingness to consider a revision of its health and medical insurance in connection with the following remarks as to why the Employer opposed a union for its employees and why the employees did not need one: I can tell you that the Company does not want a union and why. A union usually makes many promises to get your vote. Can it make good on these promises? It can only try and get the Company to agree. The Company does not have to agree. Many times strikes, discord and violence result when no agree- ment can be reached. Such things harm both the employees and the Company. Without a union they do not happen. Do you need a union to improve your wages and benefits? I think not. You will recall we met with you in May of last year and made a general wage increase and added a paid holiday and paid sick days. We told you that as in other Lily plants we review wages and benefits each year. We adjust them in line with rates and benefits for similar work in other local plants and Lily plants, and also take into account your suggestions throughout the year. For instance, we have received some comments that our health insurance and major medical plans are good, but daily hospital rate allowances need revi- sion. Such comments as these are considered when we make our annual review.... This concludes the evidence and my findings as to what the Employer through Britt and Conklin told the employees about a change in the group insurance. In sum, the evidence shows as I have found, that in response to employee requests for a change from Metro- politan to Blue Cross, Britt began a survey of available group medical-health premiums and benefits a month and a half before the representation petition was filed in this case and, having completed it after the filing of the petition but before the election was held, was favorably impressed by Blue Cross. Although neither Britt nor the Employer had yet definitely decided to make the change to Blue Cross, Britt told employees Madurski and Gyure immediately before the election that the Employer was seriously considering making the change, and President Conklin in his talk to the employees just before the election also held out the prospect of the change as one indication that the employ- ees did not need a union to represent them. From the conjunction of Britt's and Conklin's remarks to the employees, it must be concluded that the Employer intended to influence the employees to vote against union representation by holding before them the prospect of an attractive change in their insurance coverage. That the change was one which the employees them- selves had asked for, and Britt had begun to consider, before the representation petition had been filed, does not justify the Employer's apparent deliberate use of the possibility of the change to convince the employees they needed no union and should therefore vote against the Petitioner in the election. As already noted, I find this was improper and disturbed the "laboratory condi- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions" essential to a fair election I shall therefore recommend, that because of this conduct on the Employ- er's part, the Board should set the election aside and direct a new election Upon my foregoing consideration of the evidence taken in the hearing held before me and in response to the questions referred to the Trial Examiner by the Regional Director, I have reached the following CONCLUSIONS I Thomas M Britt, the Employer's vice president, did not tell employees that the plant would close if the Union (the Petitioner) won the election held on April 17, 1969 2 Vice President Britt did not tell any employee that certain employees would be fired for union activity 3 Vice President Britt did not interrogate any employ- ee as to the identity of those individuals who had signed authorization cards for the Union 4 Vice President Thomas M Britt of the Employer told employees shortly before the representation election conducted on April 17, 1969, that serious consideration was being given by the Employer to making the change requested by employees in the group medical-health insurance coverage from the existing Metropolitan Insur- ance Company plan to the Blue Cross-Blue Shield plan 5 At meetings of its employees called by the Employ- er 2 days before the election, President Charles Conklin of the Employer told the employees that they did not need a union to improve their wages and benefits, citing as one example, the Employer's willingness to consider the change in insurance coverage referred to in paragraph 4 above 6 The conduct of the Employer through the state- ments made to employees by Vice President Britt and President Conklin as described in paragraphs 4 and 5, above, was an improper attempt on the part of the Employer to influence its employees to vote against the Petitioner in the election and, because this was its normal and foreseeable effect, the election held by the Regional Director on April 17, 1969, should be set aside and a new election held 7 Except for the conduct of the Employer described and referred to in paragraphs 4, 5, and 6, above, the evidence does not support the Petitioner's Objections nor any other possible other ground suggested by the Regional Director's investigation for setting the election of April 17, 1969, aside RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions, it is recommended that the Board set aside the election held by the Regional Director on April 17, 1969, and that it direct that a second election be conducted by the Regional Director among the employees in the appropriate unit at such time as the Regional Director deems appropriate