Olin Conductors

OLIN CONDUCTORS Olin Conductors, Olin Mathieson Chemical Corpora- tion and Local 124, International Brotherhood of Electrical Workers, AFL-CIO. Cases 17-CA-3912 and 17-RC-5999 August 27, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On March 20, 1970, Trial Examiner Ramey Dono- van issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in, and was engaging in, certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Exam- iner also found that Respondent has not engaged in certain other unfair labor practices alleged in the complaint. In addition, the Trial Examiner found that Respondent had engaged in objectionable conduct with respect to the election held in Case 17-RC- 5999, and recommended that the election be set aside. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Union filed cross-exceptions. Respondent sub- sequently filed a brief in opposition to the Union's cross-exceptions. 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 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. Unlike the Trial Examiner, we do not think that the unfair labor practices herein warrant either a refusal to bargain, finding based on the Union's cards, or the issuance of a bargaining order, under the standards set forth by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. In our view, the 8(a)(1) violations found by the Trial Examiner are neither so extensive in nature nor so pervasive in character as to preclude the holding of a fair rerun election.' ORDER 467 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Olin Conductors, Olin Mathieson Chemical Corporation, Sedalia, Mis- souri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraphs 1(a) and 2(a) from the Recom- mended Order and reletter the subsequent paragraphs, accordingly. 2. Substitute the following for paragraph 1(b) of the Recommended Order: "(b) Soliciting and/or adjusting, in a context of union organizational activity, complaints, and griev- ances from its employees for the purpose of removing employee support of the Union, or any other labor organization." 3. Delete the last part of paragraph 2 of the Appen- dix which reads "the support that a majority of the employees had given to the Union initially and were a material factor in causing a majority of the employees to vote against the Union," and substitute therefor the following: "the holding of a free and fair election." 4. Delete the third and fourth paragraphs of the Appendix and substitute therefor the following: "Accordingly, our employees are advised that:" 5. Delete paragraph 2 on page 2 of the Appendix and substitute therefor the following "We will not solicit employee grievances in a context of union organizational activity for the purpose of removing employee support of the Union, or any other labor organization." [Direction of Second Election' omitted from publi- cation.] MEMBER FANNING, dissenting in part: I would adopt the Trial Examiner's decision without modification. See Schrementi Bros, Inc, 179 NLRB No 147 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NL R B. v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by Respondent with the Regional Director for Region 17 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director 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 circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed 185 NLRB No. 56 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues adopt the Trial Examiner's findings and conclusions that Respondent violated Section 8(a)(1) of the Act in the various ways fully detailed in his decision. They adopt as well his findings and conclusions concerning the Union's majority status. They reject, however, his further conclusions that Respondent's refusal to recognize the Union as the exclusive representative of its employees violated Sec- tion 8(a)(5) and that a bargaining order is a necessary remedy if employees' desires for Union representation are to be effectuated The Trial Examiner based his conclusions on the teachings of the recent Supreme Court decision in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. My colleagues' bare conclusory statement that the unfair labor practices "are neither so extensive in nature nor so pervasive in character as to preclude the holding of a fair rerun election"does not persuade me that the Trial Examiner's analysis is in error. Accordingly, I dissent from my colleagues' failure to find an 8(a)(5) violation and to impose a bargaining order as a remedy for Respondent's unfair labor practices. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner- The charge in this case was filed on May 14, 1969, by Local 124, International Brotherhood of Electrical Workers, AFL-CIO, herein the Union. The General Counsel of the Board, through the Regional Director, Region 17, issued a complaint under date of August 29, 1969, against Olin Conductors, herein Respondent or the Company The complaint alleges various acts to be in violation of Section 8(a)(1) and (5) of the Act Respondent denies the alleged violations. Objections to an election that was held on May 7 and 8, 1969, were filed by the Union and the objections were consolidated with the aforementioned complaint for the purpose of hear- ing A consolidated hearing was held in Sedalia, Missouri, from September 30 through October 3 and October 28 through 31, 1969.1 In its brief, Respondent complains that the Board agent in investigating the charge did not ascertain Respondent 's position regarding conduct of Supervisors Manley and Cloud and that Respondent first learned of the involvement of these two men when it received the complaint, issued August 29, 1969 Respondent filed its answer to the complaint, dated September 9, 1969, denying generally all allegations of unfair labor practices Respondent made no effort , formally or informally, to inform the Board of any information or facts regarding Manley and Cloud after it became aware of their alleged involvement Respondent's motion for more definite statement , dated September 23, 1969, was ruled upon at the opening of the hearing on September 30, 1969 The aforesaid motion referred to complaint allegations concerning Respondent and its named supervisors and requested certain additional information such as the names of employees interrogated and so forth No distinction was made in the motion between Cloud and Manley and any other supervisor and they were not expressly named by Respondent in its motion and the same type of information was requested regarding Respond- ent and its supervisors generally , with respect to the various complaint allegations Respondent had adequate opportunity , if it wished , to acquaint I JURISDICTION At all times material, Respondent, a Virginia corporation has operated a plant at Sedalia, Missouri, where it manufac- tures and ships, in interstate commerce, electrical wire and cable. In the conduct of its business, Respondent, from its Sedalia facility, annually purchases goods valued in excess of $50,000 from suppliers in states other than Missouri. Also, in the course of its business, Respondent, from its Sedalia plant, annually sells and ships goods valued in excess of $50,000 directly to enterprises located in states other than Missouri Respondent is an employer engaged in commerce within the meaning of the Act and the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1967-68, Respondent built a new plant in Sedalia Construction progressed and equipment was installed until, in July 1968, production commenced. Facilities, such as complete indoor plumbing, various doors and related appurtenances, were not complete at the time production got under way but the completion of construction and the commencement of production proceeded during the same period. According to Plant Manager Fredrickson and Personnel Manager Candler, the management concept placed in effect at the new plant was that of "participative management " This approach involved the theory, as explained by manage- ment, that people are basically honest and that they derive satisfaction from achievement. A crucial aspect of the approach is effective communication between employees and management . Maintenance of competitive and compara- ble working conditions, pay, and benefits also appears to have been part of the management approach. Some of the specific implementation of the foregoing management approach was that production and maintenance employees were paid a salary and not paid by the the hour; employees were not required to punch time clocks, and fringe benefits in the form of various types of insurance, pensions, a thrift saving plan to which the Company contrib- uted stock, applied to both management and rank-and- file personnel although proportioned to the status of the particularjobs and positions. A booklet prepared by the Company and issued to new employees set forth a great deal concerning company person- nel policy. Among the statements therein was that it was Olin's policy to pay and maintain competitive compensation the General Counsel, off the record or on the record, with any evidence it wished to reveal regarding Cloud and Manley , either at the inception of the hearing or before it put on its defense or as a part of its defense it chose the latter Respondent was not denied an opportunity to settle the case in whole or in part at any stage Such amendments as were permitted at the hearing were of a minor nature and sun genera with the original complaint allegations Respondent , in our opinion, had ade- quate opportunity for cross-examination , the preparation of its case, and the introduction of evidence We are not persuaded that either the Board's rules and regulations or the Administrative Procedure Act were transgressed OLIN CONDUCTORS 469 and insure that its pay plans reflected local and area trends. More explicitly, management had orally taken the position that its pay plan would be equal to or better than those of other plants in the Sedalia area. The booklet devoted 12 pages to describing employee benefits such as 8 paid holidays; vacations, up to 6 weeks, insurance of various kinds; retirement plan; thrift plan; leave of various kinds, educational assistance; and other items Under the heading of employee-supervisor communication the booklet stressed the importance of communication to and from all employees. It was stated that the Company would keep employees informed of its problems, progress and policies and encour- aged employees to pass on to their supervisor any ideas or suggestions and opinions about company policies and thereby both parties could learn of "misunderstandings and dissatisfactions . and take prompt corrective action if needed." Employees were encouraged to go to others in the plant regarding "ideas, suggestions or complaints" if they were unable to go to their supervisor for some reason Although not set forth in the employee booklet, the evidence is clear that it was one of management's concepts at the Sedalia plant that its management policies of participa- tion, effective communication, competitive wages and attractive fringe benefits would enable the plant to be operated without a union. Kurtz, a union adherent and a member of the union-organizing committee, testified that at an orientation meeting for new employees in September 1968 when he was hired, either Fredrickson or Candler said that the plant had a new type of operation and manage- ment felt that "we" could get along better without a union and they wished to use this new form of operation as long as possible although sooner or later a union would probably come in, it was said, according to Kurtz, that the Company was not antiunion and that the Company had many unionized plants 2 Candler, in describing the orientation sessions, testified to substantially the same effect, stating that at the orientation session a short history of the labor movement was given and the statement was made that a majority of Olin's plants do have unions, further, that although the Sedalia plant is not antiunion the management believes that a union is not necessary and management has a better way of operating than what took place years ago when unions may have been necessary. Since the Company regarded communication as the key factor in its operational policy at the Sedalia plant, the plant manager held meetings with the operating employees at periodic intervals, about every 2 or 3 months.' At the meetings, Fredrickson, prior to March 1969, would speak about such matters as progress in plant construction; ho, the plant was doing production-wise; problems of the amount or quality of production in the plant or in particular depart- ments; when or if some new equipment was arriving or t The Company has 60-70 plants in the United States ' The aspect of the case pertaining to meetings both before and after the advent of the Union in March 1969, is important and was the subject of testimony by many witnesses called by the respective parties We have carefully considered the record and have appraised the witnesses and we have distilled and synthesized from the record of testimony and exhibits our factual description of what occurred and what the factual situation was was ready for installation and, generally, would endeavor to inform employees about the plant situation and its pro- gram, policies, progress, and problems At the conclusion of his remarks, Fredrickson would ask for questions and employees would ask questions and would be answered by Fredrickson The shift supervisors, who are the lowest rank in the supervisory hierarchy, met with individual employees at various intervals pursuant to what was known as the "talk plan." As the name implies, the talk plan was part of the implementation of the communications policy between management and employees The shift super- visor sat down with an individual who was on his shift and would tell him how he was doing in his work, conduct, and so forth, how he might improve or whatever, and would invite comment from the individual from the latter's point of view These sessions were held more frequently with a new employee and thereafter were held at regular intervals every few months In addition to the individual sessions, the shift supervisor held group meetings with all the employees on his shift. There is little doubt that in a new plant such as the Company's Sedalia plant there were a variety of changes in the plant building, equipment, working conditions, and so forth. It is probably true that most, if not all, such changes were in the nature of improvements in working conditions and conditions of employment and were so regarded by both management and employees Thus, initial- ly, the plant operated without indoor plumbing, there were various doors that were not installed, and other items of similar nature were not yet installed, or, like several drinking water coolers, were in place but not hooked up These matters were taken care of in time in the pre- March 1969 period Changes of the foregoing nature do not necessarily indicate any unique responsiveness or flexibil- ity on management's part to employee complaints since what occurred was simply completions of management plans that had been delayed by factors not uncommon in getting a new plant into full operation That management was interested in having a good physical plant and a good efficient place to work and a work force with good morale is clear. It is also true that during the same period management made changes in equipment and policies at the initiation of an employee or employees. For instance, there was a piece of equipment, a cold weld, which initially had to be carried around by hand; later, a suggestion was made that the cold weld be placed on wheels Evidently, because the suggestion was both sensible and reasonable, this was done. In the melt cast department, a properzi machine, whose proper operation had entailed considerable attention, was at one point operated by a man who was a temporary replacement for the injured regular operator Subsequently, when the job was opened for bids, the line of progression for bids on this machine was, at the time, based on seniority in the line The temporary operator, who was not in the line of progression, complained of his exclusion from the bidding. Management then decided, that experience on the machine should be counted and that the temporary operator should not be bumped by a man possessing seniority in the existing line of progression Also, during this period, becuase of problems with the 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD properzi, a group of employees were working 6 days a week and sometimes around the clock, A time came when this group was supposed to work on a Sunday One of the men, Clark, spoke to his supervisor and told the latter that Clark would like to speak to Fredrickson. This was arranged and Clark explained to Fredrickson that the men wanted some time off. According to Clark, Fredrickson made arrangements "so we could have some time off on this particular weekend." At another time, in the same department, the safety committee called management's attention to a loose walkway and as a result the walkway was welded in position. B. Union Organization The first indication of union interest,in the plant came in September 1968, when the instant Union passed out some handbills at the plant entrance. As far as appears, this effort was brief and abortive. Later in the year, the IAM passed out some handbills but this, too, was brief and abortive, as was similar activity by the Teamsters early in 1969. On February 9, 1969, representatives of the instant Union held a meeting at a Sedalia hotel. One employee attended. Meetings at the same location were held on March 9 and 16, with 11 and 18 employees attending the respective meetings at which, inter aka, union authoriza- tion cards were signed An organizing committee of six or seven employees was formed T',ereafter, members of the committee distributed union authorization and member- ship cards to their fellow employees. Union leaflets were distributed at the plant entrances to those entering the plant about March 17 or 18, 1969, and at various times and places at later dates. Many leaflets bore the names of the members of the organizing committee. Union buttons were worn in the plant and cards were distributed in the plant with some discussion thereon by those involved. At least some of this activity was on working time and although supervisors were aware of such activity no proscrip- tion was placed thereon. On March 18, Fredrickson received a telephone call from Mock, a union representative, in which Mock claimed that he had cards from Respondent's employees showing that they wished to be represented by the Union Evidently Mock claimed a majority since Fredrickson responded that he had considerable doubt that Mock had a "majority or number of cards that represented a majority " Fredrickson declined Mock's suggestion for, a meeting to go into the matter and asked Mock why he did not try the election procedure. The Union, under date of March 18, wrote to Fredrickson claiming that it represented a majority of Respondent's employees in an appropriate unit.' The letter stated that it constituted "a formal and continuing demand for recogni- tion . . . ... It was stated that if the Company doubted ' As set forth in the letter the unit was All production and maintenance employees, employed by the employer at its Sedalia , Missouri plant, including group leaders, leadmen, laboratory technicians, quality control and inspection employees, shipping, receiving and store room employees, tool room machinists, janitors and custodial employees , excluding office clerical employees, guards, supervisors, and professional employees, as defined in the National Labor Relations Act, as amended the Union's majority status, the Union would agree to verification of its authorization cards by a mutually accepta- ble impartial third party. An early meeting was proposed Fredrickson received the letter on March 20 and respond- ed by letter of March 21 1 In his reply, Fredrickson stated that "we" have "a good faith doubt that the Union represents a majority of our production and maintenance employees. It has been our experience that union authoriza- tion cards are an unreliable method of determining majority status " The letter suggested that the Union use the election procedure of the Board On March 20, the Union filed with the Board a petition for certification In a unit of 82 employees on March 18, the Union had secured 53 authorization cards signed on or before March 17; 57 signed on or before March 18; 59 signed on or before March 20; 69 by April. The cards, all dated, were authenticated at the hearing either by the employee who signed the card or by witnesses who had given the card to the respective signers and saw the latter sign or received the signed card from the signer. There is no evidence that any of the foregoing cards was not signed by the employee signer whose name and signature appears thereon.' The Board scheduled a hearing on the petition for April 11, 1969 At a conference on that date during the time scheduled for the hearing, the Union renewed or continued its request for recognition. The Company declined. The parties then agreed to a consent election and signed a Stipulation for Certification upon consent election The unit agreed upon and set forth in the stipulation was- All production and maintenance employees, including group leaders, shop service mechanics, die reamers, shipping, receiving and storeroom employees employed by the Employer at its Sedalia, Missouri, facility, but excluding laboratory technicians, office clerical employees, professional employees, and guards and supervisors as defined in the Act. The election was held on May 7 and 8, 1969 Of approxi- mately 81 eligible voters, 34 voted for the Union and 45 against, with 1 void ballot and 1 challenged ballot On May 14, the Union filed the instant charge as well as timely objections to the election. C Union Majority and Demand for Recognition Before proceeding to consider the alleged unfair labor practices and objections to the election, we will consider two of Respondent's contentions: 1) that the Union's demand for recognition was made for an inappropriate unit and, 2) that the cards were secured by improper inducement. ' On March 19 union representatives and supporters sought to meet with Fredrickson in the plant He refused to see them on the ground that there had been misrepresentation used in arranging the meeting The alleged misrepresentation was that he had not been told that nonem- ployee union representatives were to be included in the delegation ' The cards read Authori/ation For Representation I authorve the International Brotherhood of Electrical Workers to represent me in collective bargaining with my employer [Name, Address Employer Classilication, Department , Date Signed I OLIN CONDUCTORS 471 In its brief, Respondent, in effect, contends that the unit set forth in the consent election agreement is an, or is the, appropriate unit and that there is no evidence that laboratory technicians should be included in the unit. Since the unit set forth in the Union's demand for recognition in the letter of March 18 expressly included laboratory technicians in the unit and the consent election agreement expressly excluded such employees, Respondent therefore asserts that recognition was sought in an inappropriate unit.' In March 1969, Respondent had five laboratory techni- cians, including Cloud, who was made a supervisor on March 17. The Union had two authorizations from among the above group, one dated March 26 and one dated April 5 1 Neither card was included in our computations, above, as to the number of cards that the Union had in March when it made its initial demand for recognition or thereafter With or without the inclusion of laboratory technicians in the unit, the Union had a majority of cards at all relevant times At no time did the plant manager, in declining recognition to the Union, raise the question of unit, nor did he testify at the hearing that this was an element in his position. The declination of recognition was asserted to be based on the doubt as to the Union's majority which doubt apparently was based on the belief as asserted in the March 21 letter of declination, that cards were unreliable as indicia of employee desires and as confirmed by the refusal to have the union cards verified by an impartial third party. Moreover, in our opinion, the variation in unit as to laborato- ry technicians was a minor and insubstantial variation in the appropriate unit, the latter being the unit set forth in the consent election agreement, agreed to by both parties and ratified by the Board's regional director in approving the agreement The minor variation in unit does not invali- date the Union's demand for recognition in March, 1969, and thereafter.' Respondent's contention that the cards were signed by employees as the result of improper inducement rests entire- ly, except for one card concerning which Respondent alleges an additional deficiency, on the fact that the Union, by leaflet and orally, informed employees that initiation fees would be waived for employees who signed a card before a certain date The leaflet stated, inter aka: Any Olin employee who joins IBEW, Local 124 before March 31, 1969 will pay no-We repeat-no initiation fee. Any Olin employee who might choose to become a member after March 31, 1969 will pay an initiation fee of only $1000 It is apparent that the above refers to joining the Union and membership in the Union. The Union had two forms of card of different color One was an authorization card described, above, authorizing the Union to represent the signer in collective bargaining. The other card was an application for membership in the Union Some employees signed both cards, some did not The cards introduced in evidence at the hearing and the cards we have been discussing were authorization cards As far as appears, an employee could sign an authorization card in the hope that the Union could secure improved conditions of employ- ment and the same individual might have no intention of becoming a union member , with or without initiation fee. The waiving of initiation fee would therefore have no relevance to such an individual.10 However, we feel that it is unnecessary to rest our finding on the above distinction. We will assume, arguendo, the situation to be the one most favorable to Respondent; namely, that the impression was general among employees that if you signed an authorization card or both cards by March 31, you would not have to pay an initiation fee '1 Proceeding on the above premise, we note that Respondent in its brief urges us "to apply the logic of Lobue Bros "12 and that Respondent undertakes to distinguish DIT-MCO Corp., 163 NLRB 1019. Both these cases deal solely with objections to an election and not with a situation such ' Inasmuch as Respondent points to no other discrepancy in the unit, we conclude that, except for laboratory technicians , the unit described on March 18 and on April 11, when the consent agreement was signed, was the same We note that among the inclusions in the March 18 unit were group leaders and leadmen The latter category is not mentioned in the April 1l unit either as included or as excluded It is likely that, on April 11, when the parties sat down to describe the unit for the election, it was revealed that the Company did not have leadmen Since group leaders were included in the April 11 unit and since they would be higher ranked than leadmen and closer to the excluded superviso- ry category, it would appear that if group leaders were included in the unit, any leadmen would also be included if there was such a classifica- tion at the plant Among the inclusions in the March 18 unit were toolroom machinists No such category appears in Respondent's job classifications , and in the April 11 unit there is the term, shop service mechanics Quality control and inspection employees are included in the March 18 unit but no mention of such a classification, either in or out, appears in the April 11 unit We find no such classification in Respondent's list of jobs Either there was no such class of work in the plant or quality control and inspection work may have been performed in part by laboratory technicians or by professional employees or other production employees without this specific classification ° Cloud was not one of the signers ° As to minor and insubstantial variations in unit see fn 4, Board decision , and fn 11 of Trial Examiner's decision in The Kroger Company, 165 NLRB No 131, and cases cited 11 There is no evidence in the record or even intimation that any union representative or employee said anything about employees having to join the Union if it secured recognition or that anything was said to the effect that the Union was seeking in any prospective negotiations to secure a union shop clause in the contract, requiring membership in the Union as a condition of employment A further negative factor even as to the unmentioned union shop possibility was, as we shall see, the Company's strong opposition to the Union and the plant manager's description of the Company, "as a hard bargainer" in any possible negotia- tions with a union "Hard bargainers" are employers who rarely agree to union shop clause contracts although, of course, it is possible and the two factors are not necessarily self-exclusionary 11 There is limited evidence on the point Three or four signers of authorization cards that are in evidence had been told by the employee soliciting the cards that the Union was waiving initiation fees for those who signed before March 31 Although there is no evidence that such was the fact, if we assume that someone believed that by signing an authorization card he thereby obligated himself to paying an initiation fee eventually and therefore decided to sign the authorization card before March 31 in order to save the fee, the obvious and easiest solution to someone who did not wish to authorize the Union to represent him in collective bargaining was not to sign the authorization card and eliminate any obligation to pay an initiation or other fee 11 LobueBros , 109 NLRB 1182 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as is here presented where the 8(a)(5) allegation is based on the position, as a necessary part of the allegation, that the authorization cards establish a valid union majority. The election was a central element in the reasoning of the DIT-MCO case. We do not view the facts in the instant case as equivalent to the situation where a union offers $5-$25 or free life insurance if an employee will sign an authorization card " These are inducements of a nature that in themselves may well induce the signing of a card irrespective of any interest that the employee may have in union respresentation An employee originally not in favor of a union or opposed thereto might sign a card as the price of free insurance But, in our opinion, this is not true of an employee who signs a card albeit knowing that those who sign before a certain date will not have to pay an initiation fee. If a man is an illiterate or has no interest in books, for any purpose, he is most unlikely to sign an authorization or application for a book club. This would be true even if the book club advertised that it was offering a 10 percent reduction in rates to all those who signed membership applications or authorizations before March 31 If an individ- ual signs a plainly worded authorization or application for a book club and authorizes the club to send him and bill him for three books a year, it is reasonable to conclude that he knew what he was doing and that he wanted to receive some books from the club. He may wish to read the books, or he may wish to use the books as gifts for others; or he may want some books to fill a bookcase, or to place under wobbly table legs, or he may wish to be able to say that he is a subscriber to the club. In any event, it is clear that when he signed the authorization for the club to send him books, this was what he authorized and what he intended. The fact that he signed before March 31 in order to take advantage of a 10 percent reduction in rates does not alter the fact An association to ban all vivisection in medical research could proclaim that it would waive its $100 initiation fee for all those who signed authorizations permitting and requesting the association to represent them in appearing before a congressional committee to demand a ban on all vivisections. Signers of such authorizations would not include those who favored vivisection or who did not wish the association to represent them By the same token, those who did sign, presumably, subscribed to the purposes of the association and wished it to represent them. The waiver of the initiation fee had not influenced and would not influence those who did not favor the program of the association; the waiver of fee was simply a fringe benefit to those who, in any event, were, or were willing to be supporters of the purposes of the association or who, in someone's opinion needed a little encouragement or incentive to take an affirmative act consonant with their views By the same token, in the instant case, the signers of union cards authorizing the Union to represent them in bargaining presumably intended to so authorize the Union at the time they signed the cards The wording of the card was clear " D. H Overmyer Co, 170 NLRB No 69 " If it be said that an employee opposed to, or not in favor of, union representation signed an authorization card because he believed With respect to one card, that of employee "Block,"" Respondent, in its brief, asserts that "Block" was told that the only purpose of signing a card was to get an election 16 The testimony of Bolch varied at different points. On the particular aspect above-mentioned Bolch's eventual testimony was that a fellow employee, who gave him the card, told him "`Sign the card and we will get an election', something like that" and said "most of the guys had already signed, you might as well "" Bolch took the card home, signed it, and returned it a few days later He also signed a union membership card concerning which nothing had been said to him. Although Botch's authoriza- tion card is not determinative on the issue of majority we consider it a valid card and that it is properly included in the union designation. We find that the appropriate unit is that set forth in the election agreement as described above and as set forth in the complaint and admitted in the answer thereto. We also find that on March 18, 1969, and thereafter the Union had been designated as collective-bargaining agent by a majority of the employees in the appropriate unit by reason of valid authorization cards so designating the Union D The Election Campaign At this point we return to the events between March, when the organizing commenced and the demand for recog- nition was made, and May, when the election was held. In March, following the advent of the Union, the Company took steps to convince its employees that union representa- tion was not in their best interest and to make clear, as it had when employees were hired, that the Company wanted to operate the Sedalia plant without a union as baEgaining agent. As Candler testified, the Company under- took "to wage a campaign" to defeat the Union in the latter's effort to attain the recognition and status of collec- tive-bargaining agent. Higher management at the plant began holding meetings about twice a week with lower ranking supervisors. The latter were advised what they could and could not say regarding the Union and were given material calculated to be useful in defeating the Union, such as, copies of contracts in some union plants which, by comparison, would allegedly reveal that the Sedalia plant conditions were equiv- the union would eventually become the bargaining agent or because the individual felt that by signing a ard he thereh obligated himself to eventually paying an initiation fee in the Union and therefore could save the fee by signing the card before March 31, the answer would be, as pointed out previously, on the latter aspect, that reason would militate against signing any card As to the man who signed because he wanted to be on the winning side or to go along with his fellow workers, this may occur in many human activities Every individual is not similarly affected, but many are Similar motivativing factors occur in voting, purchasing of cars, houses, purchases of suits, dresses, and other items that are in "style" or are popular The man who subscribes to the book club because his neighbor subscribes is none the less a subscriber " "Block" in the transcript Evidently the name is Bolch as he printed and signed his name on the union card which he authenticated at the hearing " Cumberland Shoe Corp, 144 NLRB 1268 " The card is dated March 17, at which time a majority had signed cards OLIN CONDUCTORS alent or superior to those in union plants . The lower supervisors, in turn, held meetings with their shift employees with considerable frequency, several meetings a week in some cases Fredrickson held 6 meetings in the plant on March 26, 27, 28 and an equal number on May 2, 3, 5, a few days before the election. The meetings were geared so that attendance was assured by employees on each of the plant's various shifts. The numbers of employees at these series of meetings ranged from 30-40 to 6, depending on shift schedules and the staffing of the particular shift Employees were notified by their supervisors and by notices on the bulletin board when to attend a meeting. Typically, a meeting was held at a change of shift. Employees going off shift and those going on shift would attend The former group would be paid overtime for the period of their attendance at the meetings and the latter group would receive regular time. The meetings varied from about I hour to l hour 45 minutes, to 2 hours Variations were attributable to the number of issues raised and the discussion thereon. Although Candler was with Fredrickson at all the March and May meetings, Fredrickson was the spokesman, occasionally referring a matter to Candler for comment. A substantial number of witnesses from both sides testified regarding the meetings Variations and conflicts in testimony are present, not unexpectedly Some differences are explaina- ble by reason of the number of meetings and the fact that witnesses were not present at the same meetings All meetings did not have the same questions and responses although they were basically in the same general areas. Fredrickson did not have a written speech but did have some notes and at the May meetings he had union leaflets and commented thereon. Some matters came up at both the March and May meetings and witnesses may not always have remembered correctly at which particular meeting a subject arose. Fredrickson began the March meetings by saying, in substance, that it was obvious, in view of the Union's presence and activity, that there was some unhappiness among employees and that the Company had not been doing as good a job as it thought it was doing and there apparently was a better way for the Company to do things and that the Company believed that problems could be worked out among ourselves He said that in this area involving the Union and union activities he could neither make promises, nor threaten nor coerce employees, and that when, in the meeting, questions would be asked about aspects that would involve the foregoing areas or aspects on which he was uncertain or could not speak, he would raise his hand, illustrating by gesture Fredrickson then went on to speak about the production situation in the plant and the training of employees and a problem relating to damage to forklift trucks. He then asked for any questions, suggestions, problems, complaints, or comments that the employees had. A variety of matters was raised and addressed to Fredrick- son by employees at the various meetings. Among the topics was why the Company paid by salary instead of by the hour ; a suggestion that new employees should not begin working on a machine immediately but should spend a few days observing an operator on the machine before 473 actually commencing work, that the trouble with the forklift trucks was the brakes, that certain employees had to walk a great distance in the plant to get a drink of water because there was no water cooler in their area and why a water cooler could not be installed in the area; why helpers on the 54-bobbin machine were not in the line of progression to become operators on the machine since the helpers in many instances were the persons who trained a new operator, why an employee, if he bid into another line of progression, could not retain his salary and longevity accumulated in his former fob;" if the Union came in, what would happen to the various fringe benefits that the employees presently enjoyed The May meetings were also prefaced by Fredrickson saying that he could not promise, threaten, or coerce employ- ees and that he would raise his hand to indicate if he could not answer a particular question He had union leaflets in his hand and he made comments on statements about various items in the leaflets He then asked for questions, suggestions, and problems from the employees. The items raised by employees pertained to the Union and matters of interest to them as employees. Some topics appear to have been common to both the March and May meetings, for instance, the questions by employees as to what would happen to existing employee benefits if the Union became bargaining agent The March meetings, in our opinion, to a large extent involved the employees' airing of their problems, complaints, and suggestions regarding their relationship with the Compa- ny with respect to various terms and conditions of employ- ment . Such action by the employees was in response to the basic coloration and tenor that Fredrickson had imparted to the meetings by his opening remarks. By referring to the union campaign and saying that its viability indicated that there was discontent among the employees and that the Company had somehow fallen down on the job, and that there must be a better way for the Company to do things concerning employees, Fredrickson made it clear that he wanted to correct the situation. The employees would have been indeed obtuse not to perceive that the plant manager was asking for the airing of complaints or grievances that had led employees to support a union. Not only was this apparent from Fredrickson's remarks but Supervisor Haley, who held meetings with employees on his shift and with those on other shifts during the period from the latter part of March to the election in May, had expressly said in a context of talks on the union subject that the Company was a good-faith Company and the employees should give it a chance, presumably, to take care of any problems or complaints The employees quite evidently understood that the plant manager in March was tell.i.g them, in effect, that he wanted to know anything that was on their minds that had lead them to support a union. The obvious leverage " In a line of progression the Company had a series of salary steps which were effective after an employee had been in the preceding step for 3 months However, if, for instance, an employee had accumulated 2 months of longevity toward the next salary step, he would lose his longevity accumulation if he had bid into a lower line of progression This was true in the past We shall be discussing when the situation changed 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the situation, as indicated by Frederickson, was quickly grasped by the employees It was not simply a situation as in the pre-March meetings when the plant manager discussed production and department performances and then asked for questions at the end." In March, the focus was placed on the union activity as an indication that the Company had not been doing all it could and coupled with an acknowledgment that the Company recognized that it could and would do better and was prepared to do so if the employees would simply advise the Company of any problems or matters that bothered them In response to Fredrickson' s invitation at the March meetings, an employee in the wire strand department com- plained of having to walk a substantial distance through the melt cast department to the nearest water cooler and he wanted to know why a cooler could not be placed in or near his place of work Apparently this same matter was raised at several of Fredrickson's March meetings Fredrickson said that the matter would be taken under advisement. Within 3 or 4 days a water cooler was installed as requested. The fact that at the plant manager's meetings in March 1969, the nature of the meeting was such that it evoked an employee complaint about the need for a water cooler and secured the prompt remedying for the deficiency, is indicative of the nature of the meeting as a sort of general complaint session. The lack of a water cooler in the particu- lar location had been a fact since the plant had been in operation.20 The employees who worked there had, quite obviously, walked to other water coolers when they wanted a drink. The shift supervisors undoubtedly were aware that there was not a water cooler in or near the particular department. Yet, until the plant manager, in March, in in effect said to the employees, tell me anything that you have on your mind, anything that has made you less than completely happy and thus led to support of a union, " Although the plant had paid its employees by salary instead of by the hour, it does not appear that at any meeting prior to March the employees had felt that meetings with Fredrickson or with their individual supervisors were appropriate forums for general questions uncon- nected directly with production problems. But at the March 26-28 meetings with Fredrickson, the Company's express invitation in effect, to air any- thing that might concern an employee, was appropriately interpreted as wide enough to encompass questions as to why the Company paid salaries instead of hourly wages Although it must have been a question in the minds of some employees since the inception of the plant, this matter had evidently not been raised at any pre-March meeting Pre- March meetings conducted by Fredrickson were not general grievance forums Prior to March the problem of a loose walkway was handled by an employee safety committee and the Company took steps to have the walkway welded This was not a matter raised at one of Fredrickson's periodic pre-March production meetings Other such matters appear to have been raised through routine communication between employee and supervisor and not at the plant manager 's periodic meetings While ques- tions had been invited and asked at such meetings in the past, the meetings were not general grievance forums preceded by the plant manager acknowledging that the Company had fallen down in its dealings with employees and inviting the airing of any questions and problems that had led employees to support or to encourage a union 10 In the beginning there were water coolers in the plant that had not been hooked up They were hooked up around August 1968 It was fairly clear that the water cooler that the Company installed as a result of the complaint at the March 1969 meetings had not been part of the Company's plans for the building no employee had complained of having to walk considerable distance to a water cooler 21 Since the plant manager at the March meetings was, in effect, asking employees to tell him where the Company had failed in satisfying them, the employees responded And the Company in turn responded by rectifying promptly any reasonable complaint, e g , the water cooler installation 22 One of Respondent's witnesses, Coley, a group leader, gave testimony about a water cooler situation that was evidently the same situation and location as described above. In January 1969, Coley, who worked in the melt cast department, observed that employees from wire strand made a practice of coming through melt cast to reach a water cooler near a furnace. At the time, Coley, who was on the safety committee, discussed with his supervisor the undesirability of coming through a department without being aware of the danger present in an area with which one was not familiar, e g , being burned by being too close to the furnace from which "the metal splashes out at times", and that "there should be a water cooler installed up in their department . . . ." This conversation between Coley and his supervisor took place around January 15. It was brought up again at a safety meeting I week later Coley testified that as far as he knew nothing was accomplished at the time about installing the water cooler. In view of the location and the departments involved and Candler's testimony that after August 1968, one water cooler was installed in late March or early April and another in mid-May 1969, it is apparent that the cooler installed within 3 or 4 days after a complaint at the Fredrickson open forum meetings of March 26-28, 1969, pertained to the same location and situation raised by Coley, without success, 2 months earlier There is no evidence or claim that this particular water cooler situation was being worked on for 2 months prior to Fredrickson's meetings Rather it appears that with the advent of the Union, the Company solicited complaints directly to the plant manager at ehe meetings in March and promptly remedied, within reason, any manifestation of employee unhappiness or noncontentment Another matter that arose several times by employee complaints at the March meetings with Fredrickson was, why helpers on the 54-bobbin machine were excluded from the line of progression to become operators on the machine when an opening arose for the higher job. There is no evidence that over a period of months when the 54-bobbin operation was in full swing that, from time to time, someone did not become an operator by moving up the line of progression from operator on the 12-bobbin machine or " The company handbook stressed that communication was a basic responsibility of a supervisor and that the immediate supervisor was the primary source of "information" for an employee and the person with whom the employee should "discuss any problems" If, for some reason, the employee was "unable to go to your [his] supervisor", others could be approached " One employee , although sensing correctly the tone and tenor of the March meetings, went a bit beyond the reasonable He asked Fredrick- son at the meeting why, since the Company was paying by salary, the amount could not be $ 10,000 Facetious or otherwise , the question indicates the tone of the meeting set by Fredrickson as a general purgation of all complaints and aspirations OLIN CONDUCTORS some place else in the line of progression An operator from the latter machine, however, required some training and breaking in on the 54-bobbin and the experienced helper on the 54-bobbin was the source of such training But, the helper, by reason of the Company' s engineering and job evaluation studies of the bobbin operations and the jobs involved, had been excluded from the line of progression to the operatorjob on that machine It would be surprising if at least some helpers would not have been unhappy about the situation or that the Company with its grasp of scientific management, and policy of having high employee morale, did not realize that there was at least a possibility of helper frustration Quite evidently, however, after weighing all factors, the Company had set up and adhered to a line of progression from which helpers were excluded This situation continued until the March meetings with Fredrickson. When the subject was raised at the meetings by employee complaints as heretofore described, Fredrickson said that the Company would give consideration to the matter. Not long after, in April, the helper job on the 54-bobbin was placed in the line of progression." We earlier described the instance, before the advent of the Union, when the situation arose where there was a temporary operator on the properzi machine. Later, when the job was opened for bids, the temporary man complained of his exclusion from the bidding. He filed a complaint under the procedure described in the company handbook The Company decided that he could bid on the job. This complaint had not been elicited by the plant manager at one of his periodic meetings. Indeed, although not in so many words, it is our opinion that the company handbook well describes the nature of the plant manager's meetings with employees before the serious advent of a union Thus, ". . we [management] expect to keep you informed about the company-its prob- lems, its progress, its policies, and general information which we think will affect you in your job." In other words, general information about the plant, the business, its goals and policies, and the question period thereafter, by reason of the very tone and nature of the manager's periodic meetings of the above type, would be germane thereto. Such were the pre-March plant manager meetings with employees These were not general grievance sessions. Good management alone would dictate that top management ordinarily would not conduct and seek to handle all individ- ual employee unhappinesses and complaints in periodic meetings, but would deal with broader main issues of plant goals and policies. The handbook confirms that it is the immediate supervisor who is to be the employee's "main source of information" and "your problems" are to be discussed with him. The March and May meetings of Fredrickson assumed a different character with the plant " Candler testified that the helper situation came to the Company's attention in February or early March when operators on the 54-bobbin were bidding into the insulation department The 54 helpers trained the new operators on the 54-bobbin Nothing was done about the situation until Fredrickson 's meetings at the end of March elicited employee complaints at a time when the Union had claimed a majority, had requested recognition , and had filed a petition for certification 475 manager himself countering the union situation by an effort to elicit and to deal with any reasonably legitimate com- plaints that any employee might have about the Company or his work or conditions of employment At the March meetings one or more employees asked questions about pay and longevity when an employee bid from one line of progression into another line of progression into different pay steps The aspect of concern was the initial loss of higher salary and accumulated longevity in the 3-month grade steps if a man bid into a lower line of progression." Fredrickson responded and also called on Candler for further elaboration The substance of the company response at the meeting was that it was already company policy that an employee did not lose the salary he was making or his accrued longevity by bidding down into another line This was the first announcement to the employees that such was the case All the employee witnesses who testified on the subject testified that they had been unaware of such a policy prior to the March meetings. No one testified otherwise The Company admits that it never had made any general announcement of such a policy prior to the meeting and that such a policy was at least a change in important respects from the policy as it had existed as late as early 1969. Assuming, arguendo, that the policy had in fact been changed by the Company prior to the March meetings, the first public announcement of a policy or a changed policy that was beneficial to the employees has significance. The benefit was announced in the context of the meetings which we have described in their ambit of the Company's efforts to rectify any causes of discontent among employees that had led them to lend support to the Union In view of the Company's long existing and proclaimed policy of open two-way communication with employees about compa- ny rules and policies, the prior nonannouncement is not easily understood The Company furnished no explanation why this changed policy was not publicly or generally announced at a time antedating the Union, when the change assertedly occurred At the hearing the Company devoted its explanation to an effort to show that the changed policy, although unannounced, took place prior to the March meetings According to Candler, the aforementioned change in policy stemmed from the fact that at the end of January and early February 1969, employee Cockrum bid down into another line. He complained about the loss of his longevity and cut in pay that resulted from the move Candler then discussed the matter with department supervi- sor Ruth and, according to Candler, it was decided to change the policy so that a man would not receive a cut or lose longevity when he bid down Apparently the decision was made about March 10, 1969, although this is not entirely free of doubt. The Company introduced a memorandum, dated March 10, from Candler to his clerk stating: "From now on, anyone bidding down in job will hold their salary Dave Gregory, Dincell Cockrum and Roy Dietzman should be paid backpay . . . check " Downbidding might be motivated by the nature of the work in the different lines and perhaps ultimate higher financial return 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your cards . . to see if anyone else should be paid backpay." Cockrum left the Company on March 14. Although it is not clear, he may have been informed by the time he left that he would receive backpay for the money he lost when he bid down in January and February 1969 Gregory and Dietzman, as well as White, Clark, and Kurtz who had all lost money by bidding down in the January- March period were unaware of any change in company policy until Fredrickson announced it at the March 26- 28 meetings. The payroll records of all 6 men, aforemen- tioned, including Cockrum, were admittedly changed so that they reflect no loss of pay, from January 1969 on, by reason of having bid into a lower line of progression In short, the original entries in January-March, which showed what occurred at the time, namely, lower pay when the individual bid down, have been changed to show the new policy, announced by Fredrickson at the March meetings, as, in effect from January on. Neither Candler nor anyone else was able to state when the payroll records, above, were actually changed.25 In any event, with the possible exception of Cockrum, the March Fredrickson meetings were the first time any employee, including Gregory, Dietzman, Clark, White, and Kurtz, was aware that the Company had changed its policy on downbidding. The six employees who had actually incurred losses in pay when they bid down in January- March 1969, received, at a later date, backpay pursuant to the new policy Candler testified that the employees, above, probably did not receive their backpay until after the March meetings.26 It is the opinion of the Examiner that Fredrickson, at the March meetings with employees, after referring to the presence of the Union as an indication of employee dissatisfaction and an indication that the Company was not treating the employees as it should, did, in effect, solicit and invite the airing of employee dissatisfactions with a view to correcting such matters and thus remove all or some of the causes and the reasons that, in the Company's view, had led to employee support of the Union This conduct was central to the campaign that the Company admittedly embarked on to defeat the Union It occurred after the Union did represent and had claimed that it represented a majority of Respondent's employees in an appropriate unit; and at a time after the Union had requested recognition from Respondent as the collective-bargaining agent and had filed a petition for certification with the 13 The only other evidence bearing on this matter is a posted notice, signed by Candler, dated April 1969 , explaining the pay system and giving examples of what occurs when an employee bids from one line to another " It is clear that five of the men did not receive their backpay until after the March meetings and received it in April and May However, in the question addressed to Candler at the hearing regarding time of receipt of backpay by employees, one of the names expressly included in the question was that of Cockrum As indicated, Candler replied that the backpay probably was not received until after the March meetings which were 2 weeks after Cockrum had left the Company (March 14) If the new policy was in effect on March 14 it would seem reasonable to believe that Cockrum would have received, when he left , all pay due him, including backpay Board. We find such conduct by Respondent to constitute a violation of Section 8(a)(1) of the Act 2' In the Company's 29-page employee handbook which every new employee had received, 12 pages, as previously noted, were devoted to setting forth and describing employee fringe benefits, exclusive of wages. The benefits included 8 paid holidays; vacations up to 6 weeks; a variety of insurance coverages, a retirement plan with rights and provisions for either "early" or "normal" retirement; a thrift plan to which the Company contributed common stock proportionate to individual investment in the plan; paid sick leave, an educational assistance program for further formal education, and various other benefits.21 Simply as a matter of general observation and without undertaking any expert or comparative judgment, it can be said that the Company had a benefit program that would be well regarded by employees This is confirmed by the fact that in both the March and May meetings conducted by Fredrick- son and in the meetings conducted by supervisors during this period, the question arose many times from employees as to what would happen to existing benefits if the Union was successful in gaining bargaining rights. There was obvious concern and interest in this area which, in our opinion, would not have been the case if the benefits were minimal or poorly regarded. In one of its leaflets the Union set forth its program for the plant. Such things as a substantial blanket wage increase, increased shift bonus, additional paid holidays; and so forth, were enumerated, but, on the whole, the various existing benefits at the plant were not specifically mentioned. Rather, the benefits were covered by item 10 in the program which said, "the retention and improvement of all other benefits and working conditions" in a contract " "The Respondent's main purpose was to learn what complaints the employees had which might cause them to "ant d union [Such conduct] would naturally lead the employees to believe that Respondent was inviting direct dealing and thus suggesting that union- organizing activities were unnecessary Conduct of that nature, when engaged in , as we find it was here , for the purpose of undermining union organizational efforts, constitutes an infringement of employee rights under Section 7 of the Act" International Harvester Co, 179 NLRB No 124 "We can conceive of no conduct which is more calculated to undermine the Union and dissipate its majority than when the employer, as here, solicits and adjusts employees' grievances and engages in collective bargaining with them while conducting a campaign against unionization, particularly where, as here , the Respondent's efforts were successful Texaco Inc (Evansville, Indiana Bulk Station), 178 NLRB No 72 "[The Board] found that reference [in a speech by the plant manager] to the fact that the Company was now actually looking into better insurance programs exceeded permissible limits of expression since it constituted a promise of benefit calculated to influence the outcome of the runoff election-[which] tended to suggest that ' the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obligated ' (Citing NLR B v ExchangePartsCo, 375 U S 405 (1964)) "We conclude that this finding of the Board is supported by substantial evidence The mere fact that the employees had heard similar promises in the past does not change the fact that the promise was renewed and the benefit made to appear more imminent in an effort to infringe upon the employees ' freedom of choice for or against the Carmen [Union] " N.LR B v United States Railway Equipment Co., 424 F 2d 86, (C A 7) _' Among a number of additional benefits the booklet listed Workmen's Compensation and Social Security From the booklet's description under these headings, the Company was complying with state and Federal law, respectively OLIN CONDUCTORS Since the Company and the Union were both issuing numerous leaflets and letters, a letter signed by Candler was sent to all employees on the important subject of benefits. The first paragraph of the Company letter stated the belief that the Company's benefit program for "salaried employees" at its Sedalia plant was "among the finest available anywhere . . These benefits were established for you when we started the Sedalia plant on a full-salaried, non-union basis These benefits are guaranteed to all salaried employees If any union should gain representation of our plant . . , it can attempt to improve benefits by negotiations, and if it fails in this attempt, it may strike Negotiations involve a give and take; therefore, your present benefits may be the subject of negotiations Remember No union can guarantee that your benefits will remain unchanged " Before describing the balance of the letter, it is appropriate to comment on the foregoing. We do not consider the statements therein to be illegal or untrue but it is of some importance to understand what the Company was telling its employees about existing benefits since we will be considering other evidence on the company position regarding benefits and the entire picture is appropriately viewed in an overall context. As we read the first paragraph, and, as we believe the employees, who were more sensitive than we are on the subject of how the advent of a union would affect their existing benefits, read it, the following emerges as to what the letter said and how it was understood: This outstanding benefit program was entirely attributable to the Company when it started the plant "on a non-union basis" and with employees whom it decided to pay by salary and not by wages. Under the aforementioned conditions the Company has "guaranteed" and will guarantee the existing benefits to all salaried employees. How important was and is the nonunion basis to the fine benefit program and is there a significant or necessary nexus between the two? We employees do not really know but we do know that every employee is given an orientation talk in which the Company states that it wants to operate a nonunion plant and considers a union unnecessary; and during this current campaign the plant manager and the supervisors are express- ing their opposition to having a union and in numerous leaflets and letters the same position is expressed and the disadvantages of having a union are stressed. We also note that in this letter of Candler's he apparently considered it important to state expressly that the benefits were estab- lished by the Company when it started the plant on a "nonunion basis." The Company's benevolence and good will could have been referred to by simply stating that the Company established the benefits when it started the plant. The Company also said in this same connection that the Company "guaranteed" the benefits An obvious question that occurs to the reader of the letter at this point is, what happens to the benefits, described in the foregoing nonunion reference, if a union comes into the plant. What does the letter say about this. It states that a union may try to improve the benefits and may have to strike if it fails to secure company agreement to improve benefits. Whether by strike or otherwise the Union is either successful or unsuccessful in improving benefits If successful, there is no concern by the employee 477 since existing benefits have not only been preserved but improved. But suppose the Union does not strike to improve benefits because the main concern of employees is to preserve existing benefits which they regard as good, or suppose the strike to improve is unsuccessful Assume therefore that the matter of improving benefits is laid to rest. After speaking about possible attempts by a union to improve benefits, what does the letter say about simply the preservation and continuance of existing benefits In this first paragraph of the letter it is said that "your present benefits" may be the subject of negotiations which is a "give and take" process What does that mean? Well, if the Company "gives" more benefits or continues existing benefits the Union may "take" either alternative. When the employees were asking questions about what happens to our benefits if a union comes in, they were not concerned about the foregoing situation They were expressing concern about whether the existing benefits would be lost or taken away if a union came in. Realistically and actually, they were not thinking that the union advocated the abolition of existing benefits, that the Union wanted to "take" the benefits away. The Union program was to preserve and improve existing benefits. The Company was aware of this and this letter, a part of its campaign to defeat the Union, was directed to the employees' expressed concern about possible loss of existing benefits with the advent of the Union. The "give and take" in negotiations regarding "present benefits" about which the initial part of the company letter spoke was therefore not calculated to stimulate thought about "give and take" in the direction described above in our preceding paragraph. The "give and take," upon analysis, focused on the possibility of "take" by the Company in negotiations, by not continuing existing benefits. Whereas on a "nonunion basis" the Company, as the letter said, had been, and was, guaranteeing the benefits, this was not true if a union came in because the Union could not "guarantee that your benefits will remain unchanged." Since neither Union nor employees would be adverse to change if benefits were improved, who would be interested in a union guarantee against change in that direction The change, of which the letter spoke that the Union could not, assertedly, guarantee against, was a downward change such as the discontinuance of existing benefits in whole or in part The Company maintained and "guaran- teed" the existing benefits prior to the union advent so the most obvious aspect of the "give and take" and what was meant by saying that the Union could not guarantee against change in benefits, was that the Company would propose and quite possibly effectuate the discontinuance of benefits that had been established when the plant was instituted on a nonunion basis. The letter thereafter set forth the existing benefits and concluded with the following: We stress again that these benefits automatically apply only to salaried employees of Olin at Sedalia, and that all benefits would be negotiated from scratch if a union represented you. Remember! Only Olin Conduc- tors can guarantee you the above benefits. [Emphasis ours up to the word "you", "Only" emphasized in original letter.] 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If there was a degree of uncertainty and uneasiness conveyed in the first part of the letter as to what would happen to existing benefits if a union came in, the last paragraph clarified the matter. As far as benefits were concerned, when a union secured representative status, the Company said, in effect, that we start with a blank piece of paper, i.e, from scratch. All benefits would have to be negotiated from scratch If the Union wants the employees to have any of the existing benefits they will have to negotiate for them and convince the Company to agree to continue existing benefits Otherwise, the benefits, which, according to the letter, impliedly had ceased with the Union's securing representative status, remain in the discard and are no part of the clean slate from which the negotiations from scratch begin For instance, if the Union and employees want the existing 8 paid holidays, the Company may or may not agree. Perhaps the Company would offer only 6 holidays or no holidays or no vacations or insurance when there is a union in the picture. As the letter said, only the Company can guarantee you "your present bene- fits." The above theme was reiterated in another bulletin or leaflet issued by Candler on April 14. It was entitled, "What A Union Means to You [the employees]." Among 7 paragraphs of detriments and disadvantages of a union, there was included the following: Negotiated Benefits. All your benefits (Medical, Surgi- cal, and Life Insurance etc.) are subject to negotiation. Benefits that now are yours [when there is no union] would have to be negotiated in bargaining for a union contract [and you may end up with none of the existing benefits, including medical, surgical, life insurance etc ] Since what the Company had said and was saying in written form to its employees about benefits had a durability and definiteness beyond oral statements, the latter were heard in an overall context of the Company's basic written pronouncements and explanations. Moreover, in their many oral speeches and statements on the subject of benefits, neither Fredrickson nor any supervisor repudiated or made statements inconsistent with the written statements Indeed, in essential respects, the oral statements were confirmatory of the written. There is some conflict among witnesses as to whether Fredrickson, in speaking about benefits if the Union came in, said that they would be negotiated from scratch or did not use the phrase "from scratch." Overall, we do not view the resolution of this aspect as of critical importance but we do not find that Fredrickson used the phrase "from scratch." He said, in substance, that all existing benefits would be negotiated and would be subject to the "give and take" of negotiations. It is, as indicated above, our view that the written and oral statements were intermeshed as part of overall composite statements by the Company.29 19 One of the witnesses wno testified that it was his recollection that Fredrickson used the words "from scratch" in saying that all benefits would be negotiated if the union came in , later stated that it was possible that he was thinking about what the company had said in its letter about bargaining from scratch This is illustrative of the overall message which we believe was conveyed to the employees by the Company's written and oral statements Since the words, "from scratch", were used in a company letter to the employees, there is no particular reason why Fredrickson would have deliberately sought to avoid it while speaking on the same subject. He simply used different words. The letter, in our opinion, did represent the company position and there was no conflict in oral and written statements. The use or nonuse of a few particular words at one time or another is not determinative if the basic theme is, as was the case, unchanged and no effort, express or otherwise, was made to repudiate, alter, or modify one statement or another Further, with respect to what Fredrickson and other supervisors said orally about benefits, we find that in most instances they were asked questions about benefits by employees at the numerous meetings being held by the Company in its campaign against the Union in the period March 26 to the May election. The questions in substance were, what happens to our existing benefits if the Union comes in. We find that Supervisor Haley, who conducted many meetings with his shift employees on the union subject and who also was delegated to address other shifts on the same subject, during the above period, said at a meeting, as testified to by employee White, that, if we had a union, the benefits would all have to be "renegotiated"; we would have to start it all over and each one would have to be renegotiated separately. We find that Supervisor Manley, in a "talk-plan" discussion with Jobe, an employee on his shift, said that, if a union came in, we would have to negotiate for benefits we already had and there would be give and take We credit employee Gregory that Fredrick- son said in a meeting that if a union came in all existing benefits would be negotiated or would have to be negotiated, with no guarantee as to existing benefits. Kreisel, a supervi- sor and company witness, who, as a former rank-and- file employee had been opposed to the Union, testified that, in April, Haley was asked at a meeting whether the men would have any benefits if they voted for a union. Haley replied that the benefits would have to be negotiated. At another meeting, according to Kreisel, Fredrickson said that all benefits would be negotiated. At this and other meetings, as Kreisel and others testified, Fredrickson also said that the Company was a "hard negotiator" when dealing with unions. He said that at the Company's Chatta- nooga plant, which was unionized, there had been strikes and supervisors had run the plant at 50 percent capacity during the strike. It is our opinion that written and oral statements by Company representatives regarding existing benefits, an area of great sensitivity and concern to the employees, were misleading and conveyed the basic theme that, as soon as a union was certified or was recognized, the existing benefits became no more than a blank piece of paper or a clean slate. As the Company told the employees, the benefits were given by the Company to employees when it established the plant on a "non-union" basis and, under such conditions, were guaranteed by the Company and "only" the Company could "guarantee" the existing benefits, i.e , the continuation of the existing benefits. But, if a union came in, since "no union can guarantee that your benefits will remain unchanged," "all benefits would be negotiated from scratch" and, starting with a clean OLIN CONDUCTORS 479 slate, the parties will negotiate about benefits What the Company was saying was that to secure any benefits, the Union will be obliged to negotiate or renegotiate each benefit and since only the Company can grant or guarantee any benefit, the Union will have to persuade and convince the Company in negotiations to continue any existing benefit or benefits, let alone to persuade and convince the Company to improve existing benefits. Inasmuch as, in the Company's words, negotiations were a "give and take" process and the Company was a "hard bargainer," it is obvious, and certainly implied, that the Company may not agree to continue all or some existing benefits For instance, what, in effect, was being said to the employees when the Company stated that "all benefits would be negotiated from scratch if a union represented you" and that each existing benefit would have to be renegotiated is this; Since it is starting from scratch, the Union, in negotiations, if it wants paid holidays and insurance for the employees, may propose that the contract provide for 8 paid holidays and health insurance, both existing benefits at the plant The Company, may be unwilling to agree to 8 paid holidays and may propose 6; or the Company may express the view that it is unwilling to agree to provide health insurance In any event, if the Union wants any of the existing benefits in the contract, it will have to negotiate for each one and it will be dealing with a Company that described itself to the employees as a "hard bargainer" in dealing with unions }0 In describing to employees what would happen to existing benefits if a union came in, the Company was not simply expressing an opinion. If a union obtained bargaining rights, it would have to deal with the Company and among the subjects would be benefits. The Company's statements to employees, therefore, as to what happened to existing bene- fits if a union came in was a statement of Company position regarding benefits that the Company could and would implement with the advent of a union. The statement about all existing benefits having to be negotiated from 9cratch or renegotiating each existing benefit, if a union came in, is as affirmative a statement and as much within the control of the Company as would be a statement by a company that if a union came in the plant would be closed. The Company informed its employees of what its position was as to existing benefits if a union came in and, in effect, that such would be its position in dealing with the union. In our opinion, when a union is recognized or wins an election and is certified, or otherwise is the collective bargaining agent , and thus comes into the plant, nothing happens, by reason of that fact alone, to existing wages, hours, or other conditions of employment, including existing fringe benefits such as vacations, insurance, and so forth. The employer may not change conditions of employment unilaterally with the advent of a union Assume either party initiates negotiations about wages and fringe benefits The Union proposes higher wages and additional and improved benefits. The Company does not agree. Existing 10 The illustration we have given is a simplified one but one quite consonant with what the Company was saying to employees who were not experts in labor law wages and other benefits continue during negotiations. If the Company proposes to cut existing wages and to eliminate all or some existing benefits, the obligation on both parties is that their bargaining proposals and negotiations thereon be in good faith within the obligation imposed by Section 8(a)(5) of the Act. Nothing happens to existing wages, benefits, and other conditions during the bargaining. Employer adherence to a proposal to cut or to eliminate existing wages and benefits" would not be legally tenable, in our opinion, if the reason for such a bargaining position was the advent of the Union in the plant. The employer could not legally urge that its existing wages and benefits were the result of its voluntary action in paying such wages and benefits to its employees in the plant, when it was established on a nonunion basis, and, therefore, when a union came in, all existing conditions ceased and the negotiations to establish some wage level or some benefits would have to start from scratch. If the employer had a reason, unconnected with the advent of a union, for reducing existing wages and reducing or eliminating existing benefits, the position would be tenable. For instance, a general economic depression or a major downturn in a particular business could well be consistent with a good faith proposal for wage and benefit cuts. In short, presuma- bly, the cut would have been necessary and forthcoming whether or not a union came into the plant The advent of a union cannot be focused upon or be given as a reason for taking away existing benefits or pointed to as creating a situation where all benefits must be negotiated from scratch or renegotiated 32 By its statement of position regarding existing benefits if a union came into the plant, Respondent, in our opinion, in effect, threatened its employees with the loss, or possible loss, of existing benefits and with the preservation and redemption of existing benefits as attainable only by bargain- ing-from-scratch-negotiations of the Union with an employer who described itself as a hard bargainer when it was dealing with a union. Implicit in the foregoing detriment attached to the advent of a union was the converse benefit of the continuation of existing benefits if the plant remained nonunion, as it had been when the Company established and guaranteed the benefits which, in the Company's words, no union could guarantee . We find such conduct to be in violation of Section 8(a)(1) of the Act. In the various talks during the period aforementioned, Fredrickson and lower supervisors dealt with a variety of topics in response to questions and also made speeches on statements setting forth reasons why it was not in the best interest of employees to vote for the Union. It was pointed out that unions could and did fine members 11 Both wages and fringe benefits are conditions of employment and their status is governed by the same legal considerations when a union is the collective-bargaining agent " In negotiations , the parties may or may not trade off one or more terms of employment against others They may agree , for instance, on a 15-percent wage increase but with elimination of an existing educational fund program financed by the employer Each party agreeing for different reasons and for reasons on each side that are, respectively, regarded as good This type of activity, however, is not negotiating all benefits from scratch, nor is it what the Company statements conveyed 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who returned to work during a strike or who exceeded union-imposed production quotas; wage rates at the Compa- ny's unionized Chattanooga plant were compared with rates at the Sedalia plant , that the Company customarily looked for supervisory material among its high producing employees but with a union this was very difficult since a union tended to level production and to discourage high producers Areas which require more consideration are company statements about plant expansion ; cost-of-living increases; and layoffs. The company employee handbook refers to a policy of paying competitive compensation based on continuing studies. It states that such studies will be conducted at least annually and, if justified by the study , revisions will be made on July 1 of each year . On its face, in our opinion, this policy is not necessarily a policy of cost- of-living adjustments If other employers and employees in the area did not receive a cost-of-living adjustment, presumably a policy of competitive compensation would not require such an adjustment Employee White testified that Fredrickson, in one of his talks during the period we are discussing , referred to the wage evaluation that was coming up in July Fredrick- son said that if the Union came in, the Company would probably not go through with this since it would want to hold everything back for bargaining purposes Adams, like White, a General Counsel witness, stated that at a Fredrickson talk he attended, there was a question about the July wage evaluation , Fredrickson held up his hand and said there might be something but he would not say any more. Kurtz, another General Counsel witness, testified that, at a meeting , he asked Fredrickson about the July wage evaluation Fredrickson replied that he could not speak any further on the wage evaluation . At another point Kurtz testified that someone asked about a cost of living wage increase Fredrickson said that, in the July wage evaluation , this would all be considered and " it would at least cover the cost of living raises as it had taken place in the last year " Elsewhere in his testimony Kurtz stated that , when Fredrickson was asked about the cost of living, he said that it was one of the matters about which he could not talk , but said we are considering it Coley, a group leader and company witness, testified that Fredrickson said that the cost of living was going to be evaluated and wages adjusted in July but that, if the Union came in, this would have to be held back for bargaining Fredrickson' s testimony on this aspect was limited to a response to company counsel 's question, i.e Q. Did you ever tell employees if the union came in evaluations in July would be done away with? A. No Considering the number of meetings that Fredrickson and other supervisors held with employees during this period and the number of topics that were covered, it is not easy to decide precisely what was said . The Examiner's evaluation overall is that, in substance , Fredrickson affirmed the existence of the Company 's comparative wage evaluation program ; that he did not say whether there would or would not be an increase in July, whether on a cost of living basis or otherwise ; that he did say, in substance, that when a union secured bargaining rights, the contract negotiation process was such that the Company would use any prospective steps it might have otherwise contem- plated as part of its bargaining position for the terms of a contract " For instance, as the Examiner sees it, after considering all the testimony and the witnesses' accura- cy and precision or lack thereof, if the Union won the May election and bargaining took place in May and June or beyond, the Union might ask a 20-percent wage increase, the Company might offer 10, figuring therein a wage evalua- tion that might reflect justification for an 8-percent increase. The Union might argue that the Company was in effect offering only a 2-percent increase since it would have given 8-percent in any event And so the bargaining would go on with arguments and counterarguments. Briefly stated, this is what we believe using or holding something for bargaining purposes in the aforementioned context meant We do not find Fredrickson's remarks, set forth above, to be illegal or unprotected. With regard to plant expansion, we find that, in substance, Fredrickson said that Olin might expand its operations at Sedalia or on the West Coast and that development and expansion depended on business, the performance of the plant, and related economic factors. In our opinion, Fredrickson did not threaten that there would be layoffs if the Union came in Nor, in describing bargaining between a union and a company, where, he said, they would start far apart in demands and gradually narrow their differences and with possible agreement ending in a contract, or disa- greement, ending in a strike, did Fredrickson exceed permis- sible limits. We do not think it was improper to mention that there had been a strike at the Company's Chattanooga plant, with the Company operating the plant with supervi- sors during the strike. Describing the Company as a hard bargainer was not illegal in itself There is no evidence or attempt to show that this description was inaccurate. We do not equate hard bargaining with illegal bargaining With the Company and the Union contending for the allegiance of employees, the latter are not imposed upon by being aware that neither path is entirely free of thorns. If the Union had had an 8-year relationship with five Olin plants in which the Union had never felt obliged to strike to secure a good contract, this fact could have been publicized by the Union as tending to show that a good contract at Sedalia might be anticipated without resorting to a strike Conversely, the Company could indicate possibilities in the other direction Nor are we convinced, as one witness testified, that Fredrickson said that the Company had something good in mind, presumably for the employees, if the Union lost the election With respect to interrogation, employee White testified that in the latter part of March his supervisor, Cloud, had a "talk-plan" session with him After discussing White's work and job performance with him, White states that Cloud asked him if he was in favor of the Union and White said he was. Cloud then gave his views to the effect that he thought the Union was not the best way " It it doubtful, if the Union won the election in May, that the Company could go ahead unilaterally and adjust wages because of a wage evaluation study it had made in the period after the election OLIN CONDUCTORS 481 to go; and that if the Union came in, it could be bad for business and there could be layoffs. Cloud states that after the talk plan material was covered, he simply asked White if he had received the Company letters (and other material on the union subject) and if he had any problems or questions. Cloud denies asking White if he favored the Union or saying that a union could be bad for business and that there could be layoffs This White and Cloud incident is not easily resolved. In many respects we considered White a reliable witness and we have credited him on other aspects of his testimony Cloud was not particularly impressive, in our opinion However, we believe that White may have in his testimony confused Cloud with someone else In his testimony, White states that, following the above remarks, he and Cloud continued their conversation and, as White was preparing to leave, Cloud said, "You may be right about the Union; I know very little about the Union. I have been a foreman all my life " Cloud had been working for the Company a little over a year. He became a shift supervisor about March 17, 1969. A shift supervisor is the lowest ranking supervision in the plant. White and Cloud were on a first name basis and their relationship was a friendly one To the Examiner, it is highly unlikely that Cloud, in connection with saying that he knew little about the Union, in effect explained the statement by saying to White that he, Cloud, had been a foreman all his life. The latter remark was patently untrue as both men must have known and it served no useful purpose in the circumstances 34 We recognize that the unpersuasive nature of one aspect of White's testimony about his conversation with Cloud does not per se destroy the possible accuracy of the earlier portion of the same conversation. Nor do we believe that White was otherwise an unreliable witness regarding other matters. However, we are not prepared to credit White on the critical part of his testimony regarding what Cloud said to him Employee Jobe, a member of the union-organizing com- mittee, testified that a day or two after the union meeting in Sedalia on March 16, 1969, he was standing in the plant's electric department. It was apparently in the morning at the beginning of a shift According to Jobe, his supervisor, Manley, wearing his street clothes, was coming in and "just sort of a greeting of the morning, the first thing he said, `How many do you have signed up, Stan? [Stanley Jobe]." Jobe said, "quite a few." At the time, Jobe had a group of union authorization cards sticking out of the shirt pocket of the coveralls he was wearing Jobe states that he and Manley then had a brief discussion about the union activities Jobe did not recall any details of such additional conversation Manley denies that he had " There is no evidence that Cloud was a foreman prior to employment by Respondent Moreover, the possibility is unlikely since, if Cloud had been a foreman, it would appear that it would not have taken him 6 months with Respondent to reach the lowest rung on the supervisory ladder Respondent's plant was a new one , with an indigenous work force, and with supervisors, with the exception of top officials, evidently recruited locally Additionally, even prior foremanship would not be consistent with the assertion of having been a foreman all his life since the latter would include a substantial period when he was not a foreman at Olin any conversation with Jobe about union cards or that he asked Jobe how many he had gotten signed At prior places of employment Manley had been a com- mitteeman in a Steelworkers local union and had also belonged to another union The employees, including Jobe, who worked under Manley at the Sedalia plant, were general- ly aware of Manley's past union relationships Jobe, as a member of the union-organizing committee whose name appeared as such on union campaign literature, made no secret of his own union role He wore a union button and carried union cards in his pocket while at work. He testified that he talked about the Union in the plant and passed out cards to other employees on company premises. Manley and other supervisors were aware of such activity but did not interfere Under the circumstances aforedescribed, the Examiner, while finding that the conversation with Manley, as described by Jobe, did take place, does not find the casual inquiry of, "How many do you have signed up, Stan," to be illegal In our opinion, Jobe was not being coerced nor can the inquiry be regarded as inquisitorial We do not regard the statement of Manley as serious interrogation in a genuine effort to obtain confidential information and we do not believe that Jobe so regarded it. In view of Jobe's open and well known union activity and solicitation in the plant, Manley's remark was little different than saying. in Jobe's words, as "just sort of a greeting of the morning," "How are you doing, Stan." If an employee was known as a dedicated fisherman and frequently talked about his fishing in the plant and had various hooks and trout flies visibly attached to his pocket, it might be quite normal for his foreman to greet him by saying, "How many have you caught, Joe" In the Manley remark we do not find a coercive or inhibitory element.75 Sometime in April 1969, Manley had a "talk plan" conference with Jobe Manley reviewed Jobe's work perform- ance with him and told him that he was doing fine. The two men then sat around awhile and, according to Jobe, the talk got around to unions. Manley said that, if a union came in, we would have to negotiate for benefits that we already had and in the give and take we would lose some Manley did not refer to this conversation in his testimony The discussion of benefits by Manley formed part of the overall evidence in our consideration of the Company's expressed position on benefits if a union came in. It is part of the context of the benefit subject, as treated by the Company in its letter to the employees and the statements by supervisors regarding benefits, if a union came into the plant. We have previously expressed our views on this matter. Mothersbaugh, a member of the employee organizing committee, whose name appeared on union leaflets, and who wore a union button in the plant, testified that, a day or so before the May election, his supervisor, Gibson, who was "grinning," asked him if he had made up his " It can also be noted that in this case there is no indication that the company opposition to the Union relied on knowing the number of cards that the Union secured or did not secure The Company's position was, in effect, that the cards mean nothing and even if the Union had a majority of cards , the real test was an election 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mind how he wanted to vote. Mothersbaugh testified that he knew Gibson was kidding and Mothersbaugh took the question as a joke because Gibson knew how Mothersbaugh stood on the union The relationship of the two men to each other was a friendly one Mothersbaugh does not remember what else was said and evidently both men considered the question as not requiring an answer Apparently the General Counsel has abandoned the alle- gation that Gibson engaged in illegal interrogation of Moth- ersbaugh, since in his brief he states, ". . Gibson asked Mothersbaugh a question, which both concede to be nothing more than rhetorical in view of Mothersbaugh's open sup- port of the Union, as to how Mothersbaugh intended to vote." In any event, the Examiner finds no illegal interroga- tion by Gibson. Later, on the same day as the above incident, as Mothers- baugh was preparing to leave work, he encountered Gibson Mothersbaugh remembers only a part of the conversation, but it evidently was on the union topic. He states that Gibson said that "unionism was the same thing as Commu- nism" and that Gibson was not "kidding" and was "mad" when he made the remark The remark made Mothersbaugh mad and he told Gibson that "the nonunion company was Communism and in the Union everyone had an equal voice." The employee then left. The General Counsel argues in his brief that an epithet such as the above "when the user of the statement, the employee's boss was obviously incensed and angered, consti- tuted a threat." We have considered the General Counsel's contention and the case cited. We are not persuaded that Gibson's remarks to Mothersbaugh, involving the use of the word "Communism" as to unions, constituted a violation of the Act and we so find. Lindemann, another employee member of the organizing committee, testified that early in May, after Fredrickson had conducted his meetings with employees in May, and shortly before the election, Fredrickson was in the plant and spoke to Lindemann as the latter was working. Linde- mann states that Fredrickson spoke about the wire that the employee was processing and how it was running After a brief discussion along the foregoing lines, Fredrick- son asked Lidemann if he knew how he, Lindemann, was going to vote.J6 Lindemann replied that it was quite obvious how he was voting because he was a union organizer." Fredrickson then said that if there were any questions that arose in Lindemann's mind he would be glad to answer them. This was the end of the conversation Accord- ing to Lindemann, in the past, prior to the May incident, above, he had seen Fredrickson in the plant work area at various times and it was not uncommon for Fredrickson to say "hello" or "hi" or "good morning" to him and to ask how things were going and how the wire was coming and so forth There was, however, no particular social relationship between the two men other than the " "After a little short discussion he asked me [Lindemann ] if I knew how I was going to vote Q If you knew how you were going to vote? A Yes, sir " " Lindemann's name as a member of the organizing committee appeared on union leaflets He wore a union button in the plant plant relationship of general manager and a rank-and-file employee. Prior to the May occasion there had been no conversation between Fredrickson and Lindemann on the union subject. Fredrickson testified that in the March-May 1969 period he had probably spoken with Lindemann three or four times Fredrickson states that in no conversation did he ask the employee how he was going to vote. Respondent's counsel then asked his witness, Q. Did you have a conversation with him concerning the Union at all? A. There was one, perhaps two, conversations. Q Tell us what was said. A. I did with Jim [Lindemann], as I did several other employees, asked them if, as the election neared, if they had any questions or if there was any informa- tion, statements or fact that they had been told that they would like to crosscheck or double check, I had resources and help, that I could sometimes get informa- tion that they could use to help make up their minds or they could use and crosscheck something that had been told them. The Trial Examiner credits Lindemann's testimony con- cerning his conversation with Fredrickson The conflict in the testimony of the two men, in our opinion, is whether Lindemann was asked initially if he knew how he was going to vote There is little other difference in the two versions, except as to detail, regarding Fredrickson's asking the employee if he had any questions or sought information about the subject matter of the conversation, which was obviously the election and its issues While the question was addressed to Lindemann by the plant manager and not by some minor supervisor, we do not regard this fact alone as highly significant or disposi- tive in the circumstances of this particular case. Fredrickson not infrequently was in the plant work area and had often passed the time of day or spoken to Lindemann concerning how the work was going. The election and the voting was a first time situation in the plant so obviously it was not a prior type of reference. We do not regard the question addressed to the employee as coercive or hostile in content or in the context of all the circumstances. There is no evidence of a policy or an act of company reprisal against any individual for signing a union card or for being active in the union cause. Nor is there evidence that the Company had conducted or was conducting an inquisitorial poll of the employees overall either as to wheth- er they had signed union cards or as to how they were going to vote The question, do you know how you are going to vote, is equivalent, in our opinion , to, have you made up your mind or have you decided how you are going to vote Appropriate answers could be, yes, I know how I am going to vote; no, I do not know at this point how I will vote 38 In a plant where a strongly coercive atmosphere had been engendered by direct threats of ad hominem '" A third answer could be that it is a matter personal to me whether or not I know how I will vote OLIN CONDUCTORS reprisals and by actual reprisals, the question might well have been answered in either of the two foregoing ways, probably the latter This would be particularly true if the employee was apprehensive or had reason to be. Receiv- ing answers of the foregoing type, it is a matter of speculation whether, if the reply had been, yes, I know how I am going to vote, there would have been a further question and, if so, whether it would have been, are you going to vote for or against the Union. What actually occurred was that, to Lindemann, his prounion sentiments were so obvious and unconcealed and apparently proclaimed and adhered to without any apprehension, that he said to Fredrickson that "it was quite obvious how [he] was voting because [he] was a union organizer" In effect, he was saying not only that he had made up his mind and knew how he was going to vote, but was saying, and did say, in effect, that it was obvious that he was voting for the union. It is quite clear, we believe, that Lindemann replied truthfully to the inquiry and did so without fear of reprisal. If, in total context, employer questioning was coercive, e.g., asking an employee if he had signed a union card and threatening discharge if he did not revoke; or questioning an employee in a situation where known unionists had been discharged, we would not regard the fact that a questioned union employee answered truthfully as disposi- tive of whether the questioning was coercive. However, the Board, in deciding whether polling of employees is illegal, appears to attach some importance to the actual or potential element of whether polled employees answer truthfully or not. In Struksnes Construction Co., 165 NLRB No. 102, the Board stated that ". any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights." Lindemann, of course, in our opinion, replied strongly in favor of unionism without fear of reprisal. Also, in Strucksnes, in referring to its original decision in which it found the poll lawful, the Board noted as one of the factors in its initial decision the fact that "the evidence failed to establish that the employees answered untruthfully but, even if they did, their answers did not result from any threats of reprisal." In its later decision the Board did not repudiate the original criteria but indicated that, but for special circumstances at the time of remand, it would have added additional criteria, (1) calling a meeting by the employer to advise employees of the purpose of the poll and (2) conducting the poll in a manner to preserve voter secrecy. Since the employer had not also satisfied these criteria, the Board indicated "Respondent's conduct would probably be found unlawful if this case was now before us for initial determination under the new rule." Struksnes is on its facts a polling case and the decision deals with polling. Blue Flash Express, Inc, 145 NLRB 1368 was also a polling case. A poll is a canvass of all or of a representative number of employees as a group or body. The criteria applicable to polling, in our opinion, may have some applicability to cases involving individual questioning of an employee but they cannot be applied mechanically to every situation where a supervisor asks 483 an employee a question pertaining to union sentiment or views, regardless of the surrounding circumstances in the particular case. As the Board in Strukesnes, referring to Blue Flash, said, the basic question was "whether a poll interferes with, restrains, or coerces employees" and the answer " must be found in the record as a whole." To complete our analysis of the Fredrickson-Lindemann conversation we feel obliged to state our view as to why Lindemann was asked if he had decided how he was going to vote. In short, if Fredrickson was not coercing Linde- mann, why did he ask him the question. In our opinion, in the light of all the evidentiary circumstances, it was as obvious to Fredrickson as it was public and obvious to Lindemann that the latter was a union organizer and that the odds were overwhelmingly against the possibility that Lindemann was, or would say that he was, opposed to the Union or would vote against it. What Fredrickson was engaged in, in our opinion, was a conversational gambit hoping that he might draw the employee into some discus- sion, brief or otherwise, about some of the advantages or disadvantages of a union or that the employee might ask a question or make a statement along such lines and afford Fredrickson an opportunity to give some counterun- ion points.J9 Although the possibility of achieving anything was remote, Fredrickson had nothing to lose But Linde- mann, in response to Fredrickson's question, by coming out strongly for the Union, obliterated any possible discus- sion unless Fredrickson chose to argue with him or threaten him because of such a position Fredrickson then, and somewhat confirmatory of our view of what the whole episode was all about, said, in substance, well, if you have any questions or want some particular information about the matter, I will be glad to respond. We do not find that the Fredrickson-Lindemann incidenlit constituted a violation of Section 8(a)(1) of the Act. There was considerable testimony about statements made by Supervisor Haley in meetings with groups of employees in the April-May 1969 period Haley states that he expressed the view that a union was not necessary at the plant He read or passed around an article from a Kansas City newspaper about the fact that the Royal Company was closing its Springfield, Missouri plant, because of world-wide competition in its product and because of increased costs at its Springfield plant. The article also said that a strike of union workers at the plant had tied up production for 2 months. Haley indicated that the strike and the excessive demands of the union had left the Company unable to compete in the market 60 The Trial Examiner is of the opinion that the foregoing did not exceed the bounds of Section 8(c) of the Act In his talks Haley mentioned the possibility of strikes where an employer and union did not agree in negotiations. He said that Olin was a hard negotiator and that there " The Company, of course, was admittedly campaigning for a no- union vote 10 In his brief, the General Counsel states that in a case or cases involving Royal there was no allegation that the plant was forced to close because of union demands Assuming that this is the fact, we do not regard it as diapositive of the matter we are considering 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been several strikes at the Company's unionized Chatta- nooga plant In the event of a strike, he said the Company would probably try to maintain production at some level with the help of supervisors We do nol find the mention of the possibility of a strike and the other factors aforemen- tioned to have exceeded the bounds of free speech or that they constituted threats." Haley had copies of union contracts with him at some of his meetings and he compared wages therein with wages at the Sedalia plant He also said that since the Union was based in Kansas City, employees in Sedalia could not expect much service on their particular problems, he said that members at Sedalia could be called out in a sympathy strike if there was a strike elsewhere A General Counsel witness, Kurtz, testified that Haley said he belonged to the NFO which he said was a kind of a union; that Haley also said that he did not know what would come of the union movement, that it might die out or pick up; that if there were any raises he hoped the men would get them because he would then receive a raise that was as good or better White, also a General Counsel witness, testified that Haley said that he belonged to a sort of a union and that the men should do what was best for their own interest and that he was for them since the more they received, the more he received White states that Haley, in one talk, stated that it was the plant electrical maintenance employees who were principally inter- ested in having the I.B.E W and that the Union would not benefit others. White also states that Haley referred to the plant electrical employees as S O.B.'s who were not worth what they were being paid We do not find that these references to the electrical employees were illegal or that they created an impression of surveillance. The electrical employees wore union buttons at work, they were prominent and active in organizing and did not conceal their union sympathies We find no creation of an impression of surveillance by Haley or other management people,42 and we believe that an opinion, whether true or not, that there was a basic affinity or attraction for the I.B.E.W. on the part of electrical workers was not illegal Nor do we find any other illegal statements among those described in this and in the proceeding paragraph Haley testified that he spoke about the Company's annual wage evaluation, in July The evaluation, described in the handbook, was part of the policy to keep wages competitive with those in the area. He said that if the Company was a good-faith Company, as it said it was, it would take increases in the cost of living index into consideration at the wage evaluation; but, if a union had a contract for 3 years, there would be no cost of living adjustment until the contract expired unless there was a wage reopener provision in the contract. White testified credibly that Haley had said that he was confident that Olin would consider and give a cost of living adjustment under its wage evalua- " What Haley and other management people said about existing benefits and that all would have to be renegotiated has been discussed at another point of this decision " There is, in our opinion, no substantial evidence that Fredrickson or Candler engaged in ,urvedlance or created an impretioon of surveillance about cards or otherwise tion . He states that Haley pointed out that the employees now had their wages evaluated every year but that, if there was a union, the contract would fix the wages for the period of its term. Gorden, an employee witness, testified credibly that Haley had said that we would probably receive a cost of living increase under the July wage evaluation, that he pointed out that, when there was a 2 or 3 year contract, you did not receive benefits adjustments as rapidly as under present conditions. Hoos, another employee wit- ness, testified that when Haley was asked about the Company policy for a July wage adjustment, he said that if the Union came in the employees would probably never find out what the Company would have done. Insofar as Haley expressed his views regarding the Compa- ny's annual wage evaluation as being quicker and more flexible than the situation where wages are fixed for a contract period, we do not find any illegality 43 However, in equating the Company's annual wage evaluation as tanta- mount to a cost of living evaluation, Haley injected an element not found in the company description of its wage evaluation policy. The latter was an evaluation to insure that the Company was paying comparable wages to other plants in the area. If cost of living increases had not been given by other plants, there was nothing in company policy referring to a commitment to grant increases solely because of increased living costs. There is no evidence regarding cost of living increases having been given in the area yet Haley spoke with great confidence that Olin in its July evaluation would at least increase wages to match the rise in the cost of living As far as appears, this cost of living increase aspect has not existed as a policy antedating the coming of the Union, but it appeared in Haley's talks to employees prior to the election, during the union campaign for recognition, and the Company's campaign against such status In view of the increase in the cost of living throughout 1969, of which everyone was aware, it is evident that a matching cost of living increase under the existing nonunion no-contract state of affairs at the Company was a definite benefit. This benefit, defined and predicted by Haley, contrasted by direct implica- tion with the detriment inherent with the advent of a union when the policy would assertedly cease. We find this aspect of Haley's talk to be in violation of Section 8(a)(1) of the Act Haley testified that he told the employees that, with a union , there would be rigid job specifications and there would be less flexibility in moving employees around than at present As a result more people would have to be hired and, if there was a downturn in business, it probably would result in layoffs. Hoos testified to the same effect. Kurtz testified that Haley had said that, under present conditions, if there was a slowdown in production, men could be moved from department to department but under a union there would be layoffs. The Examiner believes that, in substance Haley pointed out that there was a " in fact, unions, in denying responsibility for inflation and a wage- price spiral, claim that union wages, being fixed by contract, fall behind price increases and then, when a contract comes up for negotiation, the union is attempting to catch up and there is in fact a price-wage spiral rather than the other way around OLIN CONDUCTORS greater possibility of layoff in the event of a slowdown under a union because a union required more rigid job classification descriptions and this made for less flexibility in moving people to different jobs. We regard this as an expression of opinion and open to counterarguments and opinion from the Union and its supporters. We do not find it illegal. The Objections to the Election The objections are as follows 44 2 A The letter to employees of April 11, 1969 contains implied threats of loss of existing benefits if the Union is chosen. The letter is General Counsel's Exhibit 12- 0. We have discussed this and related aspects of the compa- ny's statements regarding benefits in our decision. We sustain the objection. B. The booklet accompanying the above letter is anti- union and implies that unionization is a threat to job security. The Examiner is of the opinion that the booklet is protected by Section 8(c) of the Act. We do not sustain this objection C. The letter of May 3, 1969 announces increased benefits, implied promises of benefits and misleading statements. The Examiner does not agree that the letter states or implies what is asserted in the objection and is of the opinion that statements or implications therein are protected by Section 8(c) We do not sustain the objection 3. Supervisors in interviews with employees threatened reprisals and loss of benefits if they supported the Union and were promised benefits if they did not. Also material misrepresentations of fact were made We sustain this objec- tion only to the extent of our findings and conclusions regarding the company's statements on the subject of bene- fits, including, but not limited to, Supervisor Haley's state- ments regarding a cost of living increase in July 1969 under existing pre-union and non-union policies 4. At captive audience meetings with employees, the Company solicited grievances, resolved grievances, or prom- ised that it would. Company also made promises of benefits if Union was rejected and threats of reprisal of loss of benefits if it was not rejected. We sustain this objection to the extent found in our decision as to company statements regarding benefits and company solicitation and adjustment of complaints and problems in context of expressed-company concern about employee dissatisfactions that led to union movement 5 Company accelerated wage increases for a substantial number of employees during pendency of election. We do not sustain this objection because we are not aware of evidence to sustain it. If the reference is to backpay in prior down bidding situations, we have discussed this in our decision at an earlier stage. " We are not setting forth the objections verbatim in its brief, the Union states " We rely on the same conduct to establish our election objections that the General Counsel has presented in support of the unfair labor practice allegations " The Union states that it does not rely on objection 1 and 7 and did not litigate such objections at the hearing Accordingly, the Examiner does not sustain objections 1 and 7 485 6 During "the critical period herein" the Company instituted a benefit by payment of time and one-half for Sunday work and made substantial increases in the employ- ees' thrift plan. The matters of time and one-half for Sunday work, and the increased contribution to the thrift plan, were not alleged as unfair labor practices by the General Counsel and he expressly so stated at the hearing In late February or early March 1969, supervisors and possibly some employees made it known to Candler that there was considerable dissatisfaction among employees on the 21 turn not being paid time and one-half for Sunday Work" Because it was company policy to pay as well as, or better than, other employers in the area, Candler checked with several named companies and found that Pittsburgh-Corning did pay time and one-half for any Sun- day work as such On March 7, 1969, Candler wrote to Seymour, head of Olin Aluminum Division operations, whose office was in New York Candler advised Seymour of the broad based complaints he had received about failure to pay premium pay for Sunday work, he mentioned his survey of area firms and that Pittsburgh-Corning did pay time and one-half; he reminded Seymour of the Sedalia plant's policy to pay comparable wages; and concluded- We plan to begin paying time and a half for Sundays, as such, subject to your comments I would appreciate hearing from you soon so that we can take the appropriate action. Between March 7 and 17 there was one or more telephone conversations between Seymour and Candler on the above matter On March 17, Seymour wrote to Candler confirming "our telephone conversation," and authorizing time and a half for Sunday work pursuant to the pledge to pay comparable wages. On March 17 and 18, Fredrickson and Candler held meetings at the plant loading dock with 30-35 employees on the 21 turn It was announced that the Company, after checking, had ascertained that Pitts- burgh-Corning paid time and one-half for Sundays and that Respondent would do likewise pursuant to its compara- bility pledge. Thereafter, apparently, it was not clear when the new pay policy became effective and, on March 19, Candler posted a notice referring to a misunderstanding about the March 17 and 18 announcement and stating that the effective date of the new pay was March 23, not April 1 The Union points to the fact that there were union meetings in town on March 9 and 16 and that time and a half for Sunday work was one of the topics discussed. There is no evidence that the Company was aware of these meetings on the dates they were held or that it knew what topics were discussed The Company's awareness of the Union evidently began when leaflets were distributed on March 17 or 18 In any event, under all the circumstances, including Candler's clear recommendation to Seymour on " The 21 turn was a 4-shift arrangement by which, in effect, the plant operation involved was continuous An employee's work period on the 21 turn would run 7 days from, for instance, Wednesday This, of course, meant that he worked on Sunday as part of his normal work period (the details of having 2 days off thereafter need not concern us) and he was not paid time and one-half for Sunday work 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 7, we believe the time and one-half decision antedated the Union's appearance When the matter was finalized, we do not regard it as unusual or illegal that the Company sought to communicate it promptly to the employees affect- ed. It, no doubt, was helpful to the Company to do so, but the Company was garnering the normal and legitimate advantage arising from its March 7 decision and recommen- dation. The alternative was to delay or to withhold the announcement because the Union was in the picture. With- holding a benefit for such a reason could have been viewed as a detriment or a deterrent because of union activity. We also believe that, since the company announcement to the employees, that time and one-half would be paid for Sundays, occurred on March 17 and 18, and the union petition for certification was filed on March 20, the alleged improper action antedated the petition and thereby rendered the objection untimely under Board policy. We do not sustain the objection. The Olin Incentive Thrift Plan allowed for employees to contribute certain percentages of their pay to the plan. It was part of the plan that the Company would contribute 20 to 50 percent of its monthly earnings to the plan, with such contributions being invested in Olin common stock. The exact percentage of company contribution was to be determined prior to July 1 of each year by the Board of Directors. The plan was not confined to Olin's Sedalia plant. Olin's Board of Directors, on March 27, 1969, approved an increase in the corporation's contribution to the thrift plan from 30 to 35 percent, effective for the plan year July 1, 1969, to June 30, 1970. Thereafter, various written announcements to this effect went out from the corporate president on April 14, 1969, to heads of the various corporate divisions and to staff members of management at the differ- ent plants, including Sedalia. About April 22 or 23, the fact that Olin's contribution to the thrift plan was being increased from 30 to 35 percent was evidently made known at the Sedalia plant The evidence regarding the thrift plan's history is rather limited in the record. Apparently, the plan was established on July 1, 1964. The increase in the Company's contribution to the plan in 1969 was the third such increase since the plan's inception. The Company's contribution to the plan had been 30 percent since July 1, 1967, which would indicate that 1967 was the most recent prior increase The Sedalia plant began operations in 1968. On the evidence before us, the increase in company contribution on a multiplant basis was a normal business action, decided upon and dete;mined at the corporate, not the plant, level. Increases had been given in prior years for reasons that, as far as appears, had nothing to do with union activity There is no evidence that warrants a different conclusion as to 1969 and in the absence of some evidence of this nature, we are unable to rely on suspicion or conjecture.°6 We do not sustain the objection. On the basis of the objections sustained it is recommended that the election be set aside. " Possible areas of evidence in a situation such as was presented would be that it might be shown that in prior years the Board of Directors met in June Why did they meet in March in 1969 Perhaps CONCLUSIONS OF LAW For reasons set forth at length in our decision, it has been found that Respondent violated Section 8(a)(1) of the Act by its conduct and statements soliciting, expressing a willingness to rectify, and rectifying grievances and com- plaints of its employees, all in the context of a union organizational effort and a pending petition. It also has been found that Respondent's statements to its employees regarding the status of existing benefits, such as that bargain- ing would be from scratch and each benefit would have to be renegotiated, in the event a union became collective- bargaining agent in the plant, were in violation of Section 8(a)(1) of the Act It was further found that the statements by Supervisor Haley regarding cost of living increases under existing nonunion company policy were in violation in Section 8(a)(1) of the Act, as more fully described and found in our decision. We also find that Respondent, "by engaging in the forego- ing conduct and refusing to recognize the Union as majority representative of its employees, violated Section 8(a)(5) and (1) of the Act "°" THE REMEDY The evidence is clear and admitted, and we have so found, that Respondent engaged in a campaign to defeat the Union in the election. That this campaign was designed to, and did, undermine the support that a majority of employees had given to the Union when they signed clear and readily understandable authorization cards is also clear, in our opinion. The Union lost the election. The fact, that Respondent waged a campaign against the Union that was, in some respects, not illegal, does not alter the fact that Respondent also engaged in illegal conduct that, in our opinion, was effective, and it is not possible to distinguish the legal from the illegal in their effect upon the employee voters The Union was defeated by an overall campaign of legal and illegal tactics and statements, and because of this the election should be set aside. The more challenging problem is whether a bargaining order should issue or whether the unfair labor practices should be remedied by what the Supreme Court has referred a very good explanation was forthcoming, perhaps not Perhaps the Board had always met in March Suppose it was shown that the corpora- tion's earnings in 1969 were less than in 1968, when, admittedly, no increase in contribution was voted Why the increase in 1969 But there is no evidence along either the foregoing or any other related line that appears in the record " In All-Tronics, Inc, 175 NLRB I10, there was 8(a)(I) conduct in the face of a union majority, demand and refusal of recognition, and an election to which objections were sustained The allegations were 8(a)(1) and (5) violations The case was initially decided on the Board's standards of good or bad-faith doubt and violations of Sec 8(a)(1) and (5) were found and an order to bargain issued In a supplemental decision, the Board reconsidered the case in the light of the Supreme Court guidelines set forth in the Gisell case, infra The Board then found once more that there was a refusal to bargain in violation of Sec 8(a)(5) and (1) and reaffirmed its order to bargain The above quotation is from the Board Supplemental Decision See also the explication of Gissel and its application here under the caption of the "The Remedy" in the instant decision , infra. OLIN CONDUCTORS 487 to as the Board's traditional remedies and thereafter a new election or a rerun election be held. The matter is not one of first impression and the governing authority is N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) The Court had little difficulty with the Board's authority to issue a bargaining order in 8(a)(5) situations "where an employer has committed independent unfair labor prac- tices which have made the holding a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside." In context, at this particular point of the decision, the Court, in our opinion, in referring to conduct which has made the holding of a fair election unlikely, is not dealing with a rerun election situation. It is speaking of a possible initial election in the face of independent unfair labor practices that have already occurred. When the Court speaks of the situation where an election has been held and set aside, the context of the paragraph indicates that it is referring to not only an election situation but also to one where the Union had a valid card majority Literally, in such a situation, the Court stated that if the unfair labor practices had undermined the Union's majority and caused the election to be set aside, a bargaining order could appropriately issue. Does this mean that the nature of the unfair labor practices, the possibility of their being remedied by a Board remedial order, and the holding of a fair rerun election, are irrelevant considerations whenever the Board has reason- ably concluded that the unfair labor practices undermined the Union majority and caused the election to be set aside? The Court's decision affords considerable basis for con- cluding that the answer to the foregoing question is affirma- tive. In the same paragraph in which it spoke of unfair labor practices that undermined the Union and caused the election to be set aside, the Court observed that "If the Board could enter only a cease and desist order and direct an election or a rerun, it would in effect be rewarding the employer. ." The Court went on to mention the time lapses in the administrative process and the diminution of opportunity to reverse the results of an initial election in a rerun election. Moreover, the Court appeared to implic- itly emphasize that its unqualified statement that the critical factor as to the propriety of a bargaining order was, whether the unfair labor practices had undermined the Union and caused the election to be set aside, and not the nature of the unfair labor practices or their remediable or irremedia- ble nature. It did this by referring to a study of election cases and observing that there appeared to be a difference in the effect of various types of unfair labor practices and their remediable or irremediable quality Thus: The study shows further that certain unfair labor prac- tices are more effective to destroy election conditions for a longer period of time than others. For instance, in cases involving threats to close or transfer plant operations, the Union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the Union if elected seemed less irremedia- ble with the Union winning the rerun 75% of the time It is apparent that either of the foregoing types of unfair labor practices referred to in the study cited by the court could reasonably be found to have undermined a union and caused an election to be set aside but the Court did not qualify its statement regarding the propriety of a bargaining order, when the unfair labor practices had undermined the Union and caused an election to be set aside, by conditioning the statement on the nature of the unfair labor practice, its remediable or irremediable nature, or the possibility of a fair rerun election in lieu of a bargaining order Further to emphasize this position the Court said. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions neces- sary for a fair election, he may see no need to violate a cease and desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to reestabl- ish the conditions as they existed before the employer's unlawful campaign [in view of the next sentence it is clear that the conditions to be reestablished of which the Court speaks are not conditions for a rerun election but the condition where a majority of employees had designated, by cards, the Union as their collective- bargaining representative]. There is, after all, nothing permanent in a bargaining order ... The Court then goes on, as we read its decision, to make reasonably clear that it has been discussing, above described, pervasive unfair labor practices and that practices that undermine a union's majority and result in the setting aside of an election are such, i e., pervasive.48 This is evident from the Court's statement that- The only effect of our holding here is to approve the Board use of the bargaining order in less extraordi- nary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majori- ty strength and impede the election forces. It will be noted that in contrast to the first category previously discussed by the Court in which the pervasive unfair practices undermined majority strength, it is now speaking of less pervasive practices which have only "the tendency to undermine majority strength." The key factor in both categories is the undermining of the union majority. In the first category, pervasive unfair practices undermine the union majority but in the second category, the unfair practices, not being pervasive, have only a tendency to '" A lower court had admitted the possibility and appropri ateness of a bargaining order "in 'exceptional' cases marked by 'outrageous' and 'pervasive' unfair labor practices [since] 'their coercive effects cannot be eliminated by traditional remedies We would assume that these "exceptional," "outrageous ," and "pervasive" unfair labor prac- tices to which the lower court was referring were such steps as the discharge of union adherents and organizers or blunt warnings of the plant closing if a union was voted in As we have endeavored to show, however, the Supreme Court , judging from what it said as described heretofore, was not confining the propriety of a bargaining order to exceptional or outrageous unfair practices but stated that, if the unfair practices were pervasive enough to have undermined a union majority, and to have resulted in the setting aside of the election, a bargaining order was appropriate We take pervasive in this connection to mean that if the unfair practice was diffused to all the employee electorate or most of them and was with regard to a subject, or was of a nature, that it undermined their support of the union, then it is the pervasive unfair practice of which the Court is speaking even though it may not be outrageous in the sense of discharging all union activists and coercion of that nature 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undermine Also, in the first category, the pervasive practices which undermined the majority, caused the election to be set aside by this very fact, while, in the second category of less pervasive practices having a "tendency" to undermine the majority, they have only a tendency to impede the election process but not necessarily to destroy it The third category, of which the Court speaks is " . a third category of minor or less extensive unfair labor practices, which , because of their minimal impact on the election machinery , will not sustain a bargaining order "d9 With respect to the second category, above, "the less pervasive practices which have the tendency to under- mine majority, strength and impede the election process," the Court stated: If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present , is slight and that employee sentiment once expressed through cards, would, on balance, be better protected by a bargaining order, then such an order should issue The Court, then, in remanding three of the cases to the Board , for a finding in a specific area, indicates that, absent an affirmative finding that "an election would defi- nitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred," the Board's authority, if not, possibly, its obliga- tion, to issue a bargaining order, is manifest (Emphasis supplied) 50 The evidence in the instant case has convinced the Exam- iner that Respondent's unfair labor practices , in conjunction with other statements and activities that were antiunion but not illegal, effectively undermined the Union's majority and warrant the setting aside of the election If the matter of remedy was one of first impression, we would recommend that the election be set aside; that a cease and desist and affirmative statement order be issued to remedy the unfair labor practices, since we consider them remediable; and that a rerun election be conducted at an appropriate time However, the applicable guidelines are to be found in the Gissel Packing case, above, and we apply those standards to the matter of appropriate remedy We have described the three categories of unfair labor practices set forth in the Court's decision. In our opinion, " In connection with the third category we believe that the Court's description thereof again makes clear the crux of the first and second categories The first category, involving undermining the existing majority, had a maximum and destructive impact on the election machinery, the second category involved practices only tending to undermine majority and only tending to impede the election machinery, the third category involved minor unfair practices not undermining the majority and having a minimal impact on the election machinery '° "Nor did it [the Board] make a finding that , even though traditional remedies might be able to ensure a fair election , there was insufficient indication that an election (or a rerun in General Steel ) would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred We think it possible that the requisite findings were implicit in the Board 's decisions below to issue bargaining orders (and to set aside the election in General Steel) " The Court went on to say that because the Board's practice at the time required it to phrase its findings in terms of an employer's good- or bad-faith doubts, it was remanding "these [3] cases to the Board for proper findings [of the nature indicated by the Court, above] " the instant case does not fit into the third category and we therefore eliminate it from further consideration on the question of remedy.51 In our opinion , the instant unfair labor practices fall in category one of the Court's decision since the unfair practices were pervasive and, in our opinion, the unfair practices "in fact undermined a union's majority and caused an election to be set aside." The unfair labor practices were the soliciting of grievances and complaints and express- ing a willingness to correct them at general meetings reach- ing the entire employee electorate , and correcting them, all in a context of express reference to the union campaign; and the Respondent's written and oral statements to all the employee electorate , regarding existing benefits, were pervasive and did undermine the Union's majority and caused the election to be set aside. For reasons previously set forth in our analysis of the Gissel decision, we do not read that decision as defining outrageousness or heinous- ness as necessary ingredients of cases falling within category one We do not view the instant unfair labor practices as brutal or outrageous such as outright discharges of union adherents or threats to close the plant but we do not regard them as minor infractions and we find them to have been pervasive among the entire electorate and to have been material factors in undermining the Union and nullifying the election." Since, from our reading of Gissel, a factual situation, as here, that falls within category one, merits or requires a bargaining order as the appropriate remedy, we so recom- mend. Although we believe that the instant facts place the case within category one, above, we will discuss the possible applicability of category two (approval of "the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes"). We would agree that this case is "less extraordinary ," than some, both as the term "extraordinary" is usually understood or even in the sense of being less extraordinary because less outrageous. We do not agree that the unfair practices here were "less pervasive" than pervasive practices falling under category one. The instant practices , in our opinion , were about as pervasive as any unfair practices could be They reached the entire employee electorate and did so effectively We do not agree that the instant unfair practices had simply "a tendency to undermine majority strength." We are per- 51 " a third category of minor or less extensive unfair labor practices which, because of their minimal impact on the election machinery, will not sustain a bargaining order " Gissel, above " We have spoken earlier of the connotation of the word "pervasive" as used by the Court By way of further amplification , we note that in describing the third category of unfair practices the court used the words "minor or less extensive unfair labor practices [with] minimal impact on the election machinery " Obviously, the terms "extensive" and "pervasive" convey the same basic thought Extensive or pervasive unfair practices refer to the reach or the range or the number of employees affected if the practices, although extensive , have little impact and do not reach areas of material employee sensitivity , they will not undermine the union Pervasive practices are both extensive in reach and of a nature to undermine the Union and nullify the election They need not be "outrageous " OLIN CONDUCTORS suaded and convinced that the unfair practices were material factors in undermining the union majority and that, in conjunction with other aspects of the antiunion campaign that were not illegal, the union majority was undermined. Nor would we agree that the unfair practices had only a "tendency to impede the election processes." In our opinion, the unfair practices, by undermining the union majority, frustrated and nullified the election, the election process. Assume, however, arguendo, that the instant facts some- how place the case within category two. Applying the Gissel standards to situations that are found to belong in category two, it would be our opinion that, with the use of traditional remedies, a fair rerun election would be feasible and would be feasible in the instant case, if it is in category two However, even this posture, in our opinion, would not be possible here in view of an additional amplification by the Court regarding category two situations We believe that it would be difficult not to find that "even though traditional remedies might be able to ensure a fair election, there was insufficient indication that an election (or a rerun. ) would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred " While we believe that a fair election is a better method of determining employee desires than a card count, we cannot definitely state that, after unfair labor practices are remedied by traditional methods and thus we "might be able to ensure a fair election," that a rerun election "would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred " Employees' desires, like any human desires, are fairly complicated and difficult to divine. We believe an election would be the more reliable test but, under all the circumstances posed, we would hesitate to say that the election would "definitely" be the more reliable test than would the voluntary cards, signed before any unfair labor practices What lingering or subliminal effect the latter might have, we do not know In circumstances such as the Court was discussing, it is fairly clear that by positing the necessity of a finding of the above nature, the Court has placed the burden on those, including the Board, who might opt for traditional remedial action and a rerun election in category two situa- tions. The Court could have placed the burden differently, to wit, unless the Board found that reliance on the card count "would definitely be a more reliable test of the employee's desires" than a fair election after the unfair practices had been remedied, then an election would be appropriate. Instead, and, we assume, not inadvertently but deliberately, since the Court was setting forth a standard or criteria to be met, the Court's formulation places the burden in the other direction and unless it is found that an election "would definitely be the more reliable test of the employees' desires" than the pre-unfair labor practice card count, the latter presumably prevails and there is no rerun election 57 " It does not follow that if we are unable to find that an election would definitely be a more reliable test of employee desires, that we would therefore find, or that it follows, that the failure to find the 489 Accordingly, pursuant to Gissel and pursuant to any reasonably applicable Gissel standard as defined by the Court, it is our opinion, that a bargaining order must be, and is, the appropriate remedy in the instant case We accordingly recommend such an order We also recommend that Respondent cease and desist from its unfair labor practices and recognize and bargain with the Union, upon request, as the exclusive bargaining representative of employees in the appropriate unit. We deny the Union's motion for additional relief as set forth in its motion We are not persuaded that such additional relief is appropriate. RECOMMENDED ORDER Upon the above findings of fact and conclusions of law and upon the entire record, it is recommended that Olin Conductors, Olin Mathieson Chemical Corporation, its offi- cers, agents, successors, and assigns, shall I Cease and desist from- (a) Refusing to recognize and to bargain collectively with the Union as the exclusive representative of its employ- ees in the appropriate unit described hereinabove in the decision with respect to wages, hours, and other conditions of employment. (b) Soliciting complaints and grievances from its employ- ees, in a context of union organizational activity, for the purpose of removing or rectifying, and by removing or rectifying in whole or in part, such complaints and griev- ances that may have led employees to support the Union (c) Stating to employees by a combination of written and oral means that the advent of a union would mean that all existing benefits would have to be negotiated for from scratch and that, in effect, unless the Union was successful in renegotiating each existing benefit and having them placed in effect, such benefits would not exist inasmuch as the negotiations would have started from scratch insofar as benefits were concerned (d) Stating to employees for the first time and at a time when a union organizational campaign and a petition for certification were pending that, in July 1969, absent a union presence in the plant as bargaining agent, at least a cost of living increase would be given pursuant to an established wage evaluation procedure although such wage evaluation program had theretofore made no claim to being a cost of living escalator provision but merely a program to maintain wages and conditions of employment at levels comparable to those in other plants in the area. (e) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action to effectuate the policies of the Act foregoing is equivalent to a finding that a card check would definitely be (or is) a more reliable test of employee desires than an election However, for all practical purposes, the Court, by placing the burden in the election path, has in effect, made the card check an almost impregnable determinant of employee desires in category two situations We would be inclined to believe that almost all rerun elections, after the use of traditional remedies, will be found in category three situations, and not in other categories 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, recognize and bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit (b) Post at its Sedalia, Missouri, plant, copies of the notice attached marked "Appendix."54 Copies of said notice, on forms to be provided by the Regional Director for Region 17, shall, after being signed, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customar- ily posted Reasonable steps shall be taken by Respondent to insure that said notices are not defaced or covered by other material. (c) Notify the aforesaid Regional Director, in writing, within 20 days from the service of this decision and recom- mended order, what steps Respondent has taken to comply herewith." IT IS RECOMMENDED that the election held on May 7 and 8, 1969, in Case 17-RC-5999, be set aside " In the event no exceptions are riled as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulation, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 51 If these Recommendations are adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 17, in writing within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial, at which the Company, the Union, and the General Counsel of the National Labor Relations Board, were represented by attorneys and called and examined witnesses and introduced evidence, the Trial Examiner, who heard the evidence, has issued a decision in which he found that the Company had engaged in certain violations of the National Labor Relations Act and, to correct the violations, he recommended certain action to be taken by the Company. In essence, it was found that the Union, the IBEW, had received valid signed authorizations from a majority of the employees in the unit; that the Union so informed the Company; and requested that the Company recognize the Union as the employees' collective-bargaining representa- tive; the Company refused; thereafter an election was sched- uled and held, the Union lost the election; it was found that after the Union had received authorizations from a majority of the employees and before the election, the Company campaigned against the Union, and in important respects, committed unfair labor practices as part of the campaign, it was found that the unfair labor practices were a material factor in undermining the support that a majority of the employees had given to the Union initially and were a material factor in causing a majority of the employees to vote against the Union. To remedy the situation brought about by the Company's unfair labor practices, a decision of the United States Supreme Court, dealing with similar situations in other cases, has prescribed the remedy, and the Trial Examiner here has prescribed the same remedy, which is that the Company cease its unfair practices and recognize and bar- gain with the Union as the collective-bargaining agent of all employees in the unit because the Union had been designated by a majority of the unit employees as their representative unitl the Company undermined such employ- ee support by its unfair labor practices. Accordingly, you are advised that: WE WILL, upon request, recognize and bargain col- lectively with Local 124, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bar- gaining representative of employees in the appropriate unit. The unit is. All production and maintenance employees, including group leaders, shop service mechanics, die reamers, shipping, receiving and store room employees employed by the Company at its Sedalia, Missouri, plant, but excluding laboratory techni- cians, office-clerical employees, professional employees, guards and supervisors as defined in the National Labor Relations Act. WE WILL NOT advise employees, when a union campaign is going on and when an election is pending, that they will receive at least a cost of living wage increase as a result of a wage evaluation, when, prior to the union campaign, neither in the Company's employee handbook nor elsewhere, was there provision that the employees had a cost of living escalator as part of their employment conditions. WE WILL NOT, as part of a campaign against a union, solicit employees to tell management of any complaints and grievances employees had that might have led them to support a union, for the purpose of enabling management to remedy such complaints and grievances and thus demonstrate that management and not a union was the party to whom they should give allegiance and that a union was completely unnec- essary. WE WILL NOT inform employees, in writing or orally, that if a union becomes the bargaining agent, all existing benefits will have to be negotiated from scratch and that unless the Union is able to successfully renegotiate each existing benefit, the said benefit will have ceased since the negotiations on benefits would have started from scratch or from zero benefits. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce employees n the exercise of their rights under the law OLIN CONDUCTORS 491 OLIN CONDUCTORS , OLIN This is an official notice and must not be defaced by MATHIESON CHEMICAL anyone. CORPORATION This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with Dated By its provisions may be directed to the Board's Office, 610 (Representative) Federal Building, 601 East 12th Street, Kansas City, Mis- (Title) souri 64106, Telephone 816-374-5181.