Tommy's Spanish Foods, Inc.

TOMMY'S SPANISH FOODS Tommy's Spanish Foods, Inc. and Butchers Union Local 551, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Cases 21-CA-8758 and 21-CA-8891 December 14, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 22, 1970, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, 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. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and the Charging Party filed memoranda in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts only those findings, conclusions, and recommendations of the Trial Examiner which are consistent with the follow- ing modifications: The Trial Examiner found that Respondent violated Section 8(a)(1) of the Act by certain remarks and other conduct designed to prevent the Union from successfully organizing the employees of Respon- dent's firm. We agree with the Trial Examiner in some respects and disagree in others, as particularized below. 1. We think the Trial Examiner properly conclud- ed that the statements by Respondent's president, on July 22 and again on August 20, that, as a matter of principle, she would never agree in collective bargain- ing to a union-security arrangement-a provision which, to her stated knowledge, this Union invariably insisted upon-constituted restraint and coercion of the employees within the meaning of Section 8(a)(1). We have held that such an adamant avowal of intention to refuse to negotiate a lawful union- security provision tends to convey to employees a sense of futility about the value of prospective collective bargaining and, in consequence, improperly restrains their freedom of choice in regard to collective representation. M. F. A. Milling Company, 170 NLRB No. 111. When considered together with 187 NLRB No. 31 235 the other violations of Section 8(a)(1) hereinafter found, we have no doubt that this anticipatory and unreasoned threat to refuse to meaningfully consider the important subject of a union-security agreement abridged employee rights guaranteed by Section 8(a)(1). Wigwam Mills, Inc., 149 NLRB 1601, enfd. 351 F.2d 591 (C.A. 7). 2. We also agree with the Trial Examiner that the Respondent's references, in its letter of July 21, to a potential strike and the resultant permanent replace- ment of strikers were, in context, violative of the Act. In that letter, Respondent first noted, "[s]o there will be absolutely no misunderstanding," that it was "strongly opposed" to the unionization of its employ- ees. The letter went on to state that if the Union were voted in, and Respondent thereafter refused to meet its demands, the only alternative available to the Union would be to call a strike. "If that happens," the letter continued, "we won't close our doors even for one day . . . and we will permanently replace those who go on strike. The law permits us to do that and we Will. . .." The Trial Examiner found that these statements, considered in conjunction with Respondent's warning in a speech the next day that Respondent would never agree to a union-shop provision, a provision purport- edly always insisted upon by this Union, had the cumulative effect of telling employees that: ... the Union would inevitably call an unfair labor practice strike because of Respondent's bad faith anticipated refusal to bargain about union security, if the Union should seek such security, and that it would permanently replace or dis- charge unfair labor practice strikers. We agree with this analysis. The thrust of the Respondent's remarks surely tended to put the employees in fear that the conflict between the Union's assumed demand and the Respondent's declared response could only be resolved by a strike which would lead to the expeditious replacement of the strikers. In our view, this forecast was more than a discussion of the possible consequences of collective bargaining or of the legitimate rights of an employer; it was the announcement of a game plan, to be played by unlawful rules, calculated to make employees look upon collective bargaining as a one-way street leading to unemployment. The baldly stated proposition to be derived from the July 21 letter and the July 22 speech-that Respondent could and would perma- nently replace even those employees who might strike in protest of Respondent's unlawful refusal to bargain about union security-must be considered a frustrat- ing and inhibiting encroachment upon employee rights. Here again, Respondent stressed the futility of union representation, but this time in the more exacerbated framework of spelling out a scenario in 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which a strike, certain to be caused by Respondent's threatened unfair labor practice , would result in permanent replacement of the strikers . Respondent could not lawfully make permanent replacements in the projected situation , and it had no right under Section 8(c) to threaten to do so. Cf. Maxville Stone Company, 166 NLRB 888; Reed& Prince Manufactur- ing Co., 96 NLRB 850, enfd. 205 F.2d 131 (C.A. 1). 3. The Trial Examiner found that Respondent violated Section 8(a)(1) of the Act, on or about July 22, by denying economic benefits to its employees because of union-related considerations ; by impliedly promising, on the same date, to grant such benefits if the employees would reject the Union in a forthcom- ing election ; and by thereafter granting the promised benefits. In our view, the evidence does not support the finding that, on July 22, Respondent "refused" to grant an increase in insurance coverage to its employees. At best, the evidence, as fully described by the Trial Examiner, indicates that Respondent had, by July 22, looked into the question of improving such coverage. There is no clear showing, however, that by July 22 Respondent was in a position to grant-and, accordingly, to refuse to grant-the rather compre- hensive set of modifications of the program eventually announced in late October , some 2 months after the August election. We do, however, agree with the Trial Examiner's conclusion that the reference to proposed insurance improvements made in the July 22 speech by Respondent's president was unlawfully designed to influence the employees in the election by promising them increased benefits in the future . We note that the enlarged benefits had not previously been mentioned by the Respondent to the employees, and there is nothing in the record to support a finding that the expanded insurance program had , by July 22, been so definitively approved as to permit its characterization as an existing benefit. A promise of new benefits in the context of an antiunion speech, especially one as forceful as that under consideration, inevitably and improperly reminds employees of the fact that the employer is the ultimate source of all benefits, and further reminds them of the necessity for not incurring the displeasure of the dispenser of such benefits. N. L. R. B. v. Exchange Parts Co., 375 U. S. 405. We agree also with the Trial Examiner's finding that the actual grant of the increased benefits in October, while union objections were pending to the first election, was purposefully timed to further display Respondent's power to affect the economic well-being of its employees, and, in the circumstances, violated Section 8(a)(1). 4. Finally, we have concluded, after careful deliberation of the problems presented in each instance, that the Trial Examiner's findings of other violations of Section 8(a)(l) should not be affirmed. To begin with, we do not find, as the Trial Examiner did, that Respondent's statement in its August 20 letter to employees-"We need your help-not the tension, bitterness and possible loss of wages through strikes that a union can bring"-constitutes a separa- ble threat by Respondent to cause tension and bitterness in the wake of a union victory. In the same letter, Respondent referred to the possibility that a strike could "break" a company, in which case, according to Respondent, the Union would simply look for a new company to organize "and you look for a new job." Based on his earlier finding that the Respondent had threatened that it would cause a strike to be inevitable, the Trial Examiner concluded that the quoted reference to the necessity for seeking new jobs was an independent violation of the Act. In context, however, we do not consider the statement to be unlawful. The remark about the need for new jobs is premised on the speculated possibility that a strike could "break" the Respondent; we presume that the employees would understand that the Respondent did not desire and would not actively promote such a turn of events. Respondent also stated in this letter, "The worse thing that could happen to you would be if you were working for a company which was losing money, because then you would have no job security whatsoever." The Trial Examiner deemed this to be a threat of loss of employment if the Union were selected as bargaining representative. However, again looking at the immediate context in which this particular statement was made, we find that Respon- dent was addressing itself to a situation in which it might be forced to grant unreasonable increases in wages and benefits . Against this frame of reference, the remark about job security becomes, we think, a lawful comment on the basic economics of running a business. Finally, the letter of August 20 stated that the Union could do nothing for the employees that they could not do for themselves or that the Respondent was not prepared to do for them in the future. The Trial Examiner found that this statement emphasized the futility of joining the Union and was coercive within the sense of Section 8(a)(1). While we recognize that the statement may be read to imply that the Respondent had already determined that collective bargaining would avail the employees nothing, we think that the language lends itself as well to the lawful construction that Respondent had done, and would continue to do, as much as it reasonably could for the employees. We do not find this generalized appeal to be separately violative of the Act. TOMMY'S SPANISH FOODS 237 THE REMEDY Respondent has requested that the Notice to Employees proposed by the Trial Examiner be modified; the Charging Party has requested that Respondent be ordered to post such notices in both Spanish and English. Neither request has been opposed, both seem appropriate, and we shall grant them both. It should be noted that the requirement in our Order, below, that Respondent shall cease and desist from unlawfully giving benefits to its employees operates prospectively and does not imply that Respondent must withdraw the increased insurance coverage found unlawful above. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Tommy's Spanish Foods, Inc., Fullerton, California, its agents, officers, successors, and assigns, shall: 1. Cease and desist from unlawfully promising benefits or unlawfully giving benefits to its employ- ees; anticipatorily refusing to bargain about union security or other mandatory subjects of collective bargaining; threatening permanent replacement of any unfair labor practice strikers; telling its employ- ees that if they select a union as their collective- bargaining representative, a strike and loss of jobs is inevitable; or in any like manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its plant, in Fullerton, California, in both Spanish and English, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. CHAIRMAN MILLER, concurring in part and dissenting in part: While I agree with my colleagues' dismissal of certain of the 8(a)(1) violations found by the Trial Examiner, my evaluation of the evidence also per- suades me that the remainder of Respondent's actions here found unlawful by my colleagues fall well within the bounds of permissible conduct. While Section 8(a)(1) broadly prohibits employer coercion, restraint, or interference with the exercise of Section 7 rights, Section 8(c), with equivalent breadth, sanctions the expression of employer views, argu- ment, or opinion, if such employer statements do not amount to threats or promises. I cannot find that any of the remarks condemned by my colleagues fall into the latter categories. The Respondent's president told employees that she did not intend to agree to any demands which she felt were not in their best interests, or which she opposed as a matter of principle, and she singled out for specific mention a union-security arrangement which, she indicated, this Union had always sought from other employers. The majority decision, agreeing with the Trial Examiner, finds these statements violative of Section 8(a)(1) as an "adamant avowal of intention to refuse to negotiate a lawful union-security provision." I consider such statements no more legally offensive than a union's promise to employees that it will not settle for less than a $1-an-hour raise. In neither case are the respective parties declaring an intention to refuse to bargain, as such, about the mandatory subject; and in both cases it is evident to all concerned that the announced positions are, inevitably, subject to the give-and-take of the bargaining process and to the realities of the economic framework in which the parties will be negotiating. This is, I think, simply lawful rhetoric, which the Act does not forbid. The Respondent's other remarks about the possible consequences of unionization here found unlawful-that the Union might call a strike if its demands were not met, and that the Respondent legally could, and would, permanently replace those employees who went on strike-seem to me to be equally privileged. An employer is entitled to point out to employees that strikes may and do occur and he may describe the legal implications of such work stoppages. Even were I to find that the Respondent's July 22 statement of its position on the negotiation of a union-security agreement was violative of Section 8(a)(1), which I do not, I would have great conceptual difficulty in linking that statement with the Respon- dent's references of the preceding day to the possibili- ty of strikes and replacements, and finding, as my colleagues do, that the Respondent effectively threat- ened to permanently replace unfair labor practice strikers. In view of the general context and nature of the Respondent's remarks, and considering them I In the event that this Order is enforced by a Judgment of a United changed to read "POSTED PURSUANT TO A JUDGMENT OF THE States Court of Appeals, the words in the notice reading "POSTED BY UNITED STATES COURT OF APPEALS ENFORCING AN ORDER ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be OF THE NATIONAL LABOR RELATIONS BOARD." 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together with Respondent's stated commitment to bargain in good faith as the law requires, I cannot find in any of this a threat to force a strike in order to bring about a loss of employment. Finally, I would find that Respondent's actions with respect to the insurance increase mentioned to employees on July 22 and granted to them in October were entirely proper. The evidence is undisputed that, about a month before the petition for an election was filed, Respondent's president had begun to explore the possibility of expanding the employees' insurance coverage and had contacted two insurance brokers for this purpose. After the petition was filed, she discussed with her employees their present level of benefits and, in doing so, told them that she had been preparing, prior to the advent of the Union, to improve their insurance program. It seems clear to me that Respondent had a perfect right to inform employees of this fact. Just as an employer is free to rehearse for employees the benefits which they have previously received from the employer without a union, in order that they may evaluate the employer's past performance, so should an employer be permit- ted to notify employees of efforts in progress to improve the lot of the employees. Since it is uncon- tradicted that the Respondent's initial effort in the matter of increasing insurance predated the Union's appearance on the scene and, accordingly, cannot be characterized as simply a stratagem in response to the threat of unionism, I would find that Respondent's announcement of the contemplated insurance in- crease was permitted under Section 8(c). The facts presented in this case do not give rise to the inference of unlawful intent drawn by the Court in N. L. R. B. v. Exchange Parts Co., supra. Similarly, I disagree with the conclusion of the majority that the implementation of the insurance increase in October constituted a further violation of Section 8(a)(1). From all that appears, and as discussed above, the Respondent investigated the possibility of instituting expansion of its employee insurance program at a time when union considera- tions could not have played a part in that decision, and then, 2 months after the Union lost the election, and seemingly in the normal course of events, put into effect the new program which it had selected. The conception of the program having been legitimate, the Respondent was entitled, at the end of the gestation period, to effect a normal delivery. The General Counsel has submitted no evidence to demonstrate that a Caesarean section was performed in order to influence a possible second election, as the Trial Examiner speculated, and I would find that the Respondent acted within its rights in implementing the program. In accordance with the above discussion, I would dismiss the entire complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government All our employees have the right to join or assist or not to join or assist Butchers Union Local 551, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein the Union. You are free to join or not to join any union of your choice. We do not have the right to interfere with or restrain or coerce you in your choice and will not do so. WE WILL NOT tell you that as a matter of principle we will not enter into a union-security agreement with the Union if it is certified as your collective-bargaining agent. WE WILL NOT tell you that if the Union wins a future election, a strike is inevitable and that strikers will be permanently replaced, particularly in regard to those strikers who may strike because of our possible unfair labor practices. We have the duty, under the National Labor Relations Act, to bargain in good faith with the Union about union security and other matters, if a majority of you select the Union as your exclusive bargaining agent. WE WILL NOT promise or grant you benefits to increase the probability that you will vote against the Union. TOMMY'S SPANISH FOODS, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broad- way, Los Angeles, California 90014, Telephone 213-688-5200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner : Pursuant to due notice, a hearing in this consolidated matter, was held before me TOMMY'S SPANISH FOODS 239 on January 20, 1970, at Los Angeles , California. The parties fully participated . Upon charges filed by Butchers Union Local 551 , Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein the Union, on August 29, 1969, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint on October 15, 1969, alleging that Tommy's Spanish Foods, Inc., herein Respondent, violated Section 8(a)(1) of the National Labor Relations Act, herein the Act, and on December 3, 1969 , issued another complaint and order consolidating cases and notice of hearing upon another charge filed by the Union on November 5, 1969, alleging that Respondent had further violated Section 8(a)(1) of the Act. All parties appeared and have filed briefs which have been considered. Upon the entire record in the consolidated cases, including the briefs of the parties, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a California corporation engaged in the processing, distribution, and sale of frozen foods, with its principal office and place of business located in Fullerton, California. During the past calendar year in the course and conduct of its business, it sold and shipped goods valued in excess of $50,000, directly to customers located outside the State of California. At all material times, it has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION At all material times the Union has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues Did Respondent by threats and promises and by the granting of benefits shortly before resolution of objections by the Union to an election which is pending before the Board, violate Section 8(a)(1) of the Act? 1 B. The Facts The record is essentially stipulated. It consists of various letters admittedly distributed to Respondent's employees,2 by Respondent's presiden Manville, and an affidavit of nine pages signed by Respondent's president, Katherin Manville, on September 25, 1969,3 and it was stipulated that if called to the stand she would testify under oath "precisely as is contained in her affidavit." 4 I The Union seeks a bargaining order. General Counsel has not. There is no evidence as to majority status of the Union, etc., and, particularly because of General Counsel's silence on the matter , I find no occasion for recommending an order for Respondent to bargain with the Union. 2 Approximately 30. 3 Hereinafter, all dates refer to 1969, unless otherwise specified. 1. Statements by Respondent that it would not agree to any form of union security if the Union won the election An election was held at Respondent's plant on August 21.5 The Union lost and on August 26 filed timely objections. On October 23, the Regional Director issued a report, recommending that the election be set aside and directed the holding of a second election. On company time, on or about July 22, Manville held a meeting with all Respondent's employees in the administra- tive section of the office building. Among other things, Manville said to the employees, according to her affidavit, "I emphasized that the Union would undoubtedly ask for a union shop if it won the election, which would compel every employee to become a member and continue paying dues in order to work at Tommy's Spanish Foods, Inc. I strongly emphasized that I was opposed to a union shop and that belonging or not belonging to the Union should be a free choice at all times. I told the employees that I could not, as a matter of principle, agree to any union shop condition and that to my knowledge, this Union invariably insisted on the union shop. It was in connection with this specific point that I commented about the possibility of a strike and my reaction to it in the event one was called. " (Emphasis supplied.) In the same affidavit, Manville admits that about 2 days before the election she held meetings in her office with groups of about four or five employees at a time. She told them, among other things that Respondent would never agree to any union demand to which, "we were opposed as a matter of principle. This latter reference was primarily to the union shop." In an August 20 letter delivered to all employees, Manville stated Respondent would "flatly reject" any demands of the Union which Respondent did not believe were in the best interests of Respondent or its employees. (This obviously included union security.) She continued, saying there was no obligation under the law to sign "any contract which does not suit our purpe.e." She added that all the Union's contracts have the union shop in them which "makes it an absolute must" that every employee join the Union. She added, "we do not intend to agree to any contract where any employee of ours must join and pay dues in order to work here." Union security is a mandatory subject of collective bargaining. The above recited facts demonstrate that Respondent engaged in an unlawful anticipatory refusal to bargain. Respondent told each of its employees it would refuse to bargain with the Union with respect to union security even if the Union were selected by the employees as their collective-bargaining representative. I conclude Respondent was conveying to its employees that its mind was closed on this issue .6 The above recited facts establish a violation of Section 8(a)(1) of the Act by Respondent. As will be hereinafter found, Respondent told its employees 4 I consider her admissions against interest as contained in that affidavit as binding on Respondent. I make no such finding as to self-serving statements or explications which are not corroborated. 5 The Union's petition for an election was filed on July 15. 6 Cf. Duro Fittings Company, 121 NLRB 377 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the only way the Union could try to enforce its bargaining demands was by a strike, and added that all strikers would be permanently replaced. 2. Threat of loss of employment On July 21, Respondent delivered a letter to each of its employees stating, inter alia, "So there will be absolutely no misunderstanding, we are strongly opposed to the union organization of our employees . . . . If you vote this union in you know that the only alternative available to the Union, if we refuse to meet its demands,? is to pull you out on strike. If that happens, we won't close our doors even for one day and will run it with those of you who want to stay and we will permanently replace those who go on strike. The law permits us to do that and we will ...." (Emphasis supplied.) I conclude that Respondent conveyed to each of its employees that the Union always insisted on union security,8 and told them that Respondent had a closed mind on such subject and would never agree to union security and a strike was the only way the Union could enforce its demands of any kind. I find that Respondent conveyed to its employees that the Union would inevitably call an unfair labor practice strike because of Respondent's bad-faith anticipated refusal to bargain about union security, if the Union should seek such security, and that it would permanently replace or discharge unfair labor practice strikers .9 It was a violation of Section 8(a)(1) of the Act for Respondent to threaten to discharge employees who might engage in an unfair labor practice strike, particularly because Respondent implied such a strike was inevitable.10 What Respondent did was to convey to its employees that it was futile to vote for the Union because Respondent would unlawfully refuse to bargain about union security, and a favorable vote for the Union would only result in an unfair labor practice strike with unlawful discharges of striking employees resulting therefrom. This is my conclusion. This was violative of Section 8(a)(1) of the Act. It was a violation of Section 8(a)(1) of the Act for Respondent to create the impression on its employees that a favorable vote for the Union would inevitably result in a strike with permanent replacement of even unfair labor practice strikers. Strikes are not inevitable. Good-faith bargaining by management and labor can make them unlikely.ii It is significant in my finding of an 8(a)(l) violation as above, in this section, that in its August 20 letter to each employee, Respondent said, "But how many times have you heard of strikes in a non-union shop? Strikes are unions' prime weapon. Have you ever been caught in a strike and lost days, weeks, or months of pay, while some union tried to bend an employer to its will? 12 The union r Note sec . 111, B, 1, above, where it is found Respondent told the employees that the Union always sought union security and that as a matter of "principle" Respondent would refuse such demand 9 There is no evidence that this is so 9 There is no objective evidence that the Umon would call any kind of strike. Respondent did not say this but implied it Respondent, without objective evidence, implied to its employees that the Union would inevitably strike for union security as to which Respondent had a closed mind. officials don't suffer-their paychecks continue, and if a strike action breaks a company 13 they couldn' t care less. They just look for a new company to organize andyou look for a new job." This is an obvious implication that the "inevitable" strike which Respondent said would take place would result in the fact that the striking employees would look for new jobs, i.e., they would cease to be employees of Respondent. Aside from the fact that there is no objective evidence of the inevitability of a strike if the Umon won the election, neither is there any objective evidence that a possible strike would "break the company," or that the strikers would cease to be employees of Respondent not subject to reinstatement upon request. Respondent told its employees that the above "is certainly an important point to consider in deciding how to vote." Respondent likewise violated Section 8(a)(1) of the Act by stating in this letter, "We need your help-not the tension, bitterness and possible loss of wages through strikes, that a union can bring." This was a plain statement that should the Union win the election there would be "tension and bitterness" between Respondent and the employees. This is certainly not an inevitable result of a union representing an employer's employees. Respondent indicated to its employ- ees that the only consequences of a strike, besides "breaking" the Respondent, would be that the striking employees would have to look for new jobs. Such is an unlawful threat, particularly insofar as Respondent told them the Union would call them out on strike because Respondent would refuse "flatly," to agree to a union- security agreement which the Union would predictably, but not necessarily, seek. Respondent's self-serving statement that its obvious threat "is not meant as a threat," merely emphasizes that its statements were intended as a predetermined course of unlawful action. While discussing the employees' possible selection of a union and as part of its threats, as hereinabove noted, Respondent, in the same letter, told its employees, "The worst thing that could happen to you would be if you were working for a company which was losing money, because then you would have no job security whatsoever." Respondent, in violation of Section 8(a)(1) of the Act, conveyed to its employees that if they selected the Union in the election, Respondent would lose money, and they would have no job security. Respondent made threats of loss of employment "which are designed to create and instill in their [the employees'] minds a fear of economic suffering if they [selected] the Union." This violated Section 8(a)(1) of the Act.14 That Respondent, not content with letters and general speeches, threatened small groups of employees with refusal to bargain and inevitable strikes emphasizes its actions in threatening employees with loss of employment, should they select the Union. Manville clearly attempted io No objective evidence that this was so, even if Respondent committed unfair labor practices 11 There is no credible evidence here that the Union would not bargain in good faith. 12 There is no evidence here that the Union would have done anything but try to have mutual good-faith bargaining. 13 Plainly implying that that was what the "inevitable" strike would do. 14 Brownwood Manufacturing Co, 149 NLRB 921. TOMMY'S SPANISH FOODS 241 unlawfully to dominate the employees' exercise of Section 7 rights. The Respondent clearly told its employees that they could not exercise all their Section 7 rights through selection of the Union as bargaining representative and that they would be permanently replaced if they exercised their right to strike even because of Respondent's predicted unfair labor practices. This was a violation of Section 8(a)(1) of the Act. 3. Unlawful promises of benefits and threats of losses of benefits It was not until July 22 that Respondent advised its employees that it was considering and revising its employee insurance program. Respondent said it had been doing this when the Union filed its petition for an election. However, though allegedly it had been formulating these plans before the Union's petition, Respondent told the employees it could not grant such benefits while the petition was pending. In its letter of July 21, Respondent indicated, contrary to fact, that the filing of the petition was an abnormal course of events. The letter clearly indicated and said that if the petition had not been filed and the election had not been pending, the employees would have received advantageous increases in vacation and hospitalization plans. This was the same letter that advised the employees that, if they voted for the Union, the only alternative available to the Union, if Respondent refused to meet its demands, was to pull the employees out on strike with resulting loss of jobs for strikers. On July 22, at a meeting, Manville told all the employees that she would do something to improve Respondent's hospitalization plan. Manville admitted that it was not until after the petition was filed, and at this meeting, that she first spoke to the employees "openly" regarding improvement of Respon- dent's insurance programs.15 She told the employees that because of the pendency of the petition or election, Respondent could not grant the fringe benefits although she also indicated that, before the filing of the petition, Respondent had conferred with several insurance brokers, consistent with its policy "to provide the best benefits we could afford." She said that before the petition was filed, "something was in the process of being done." Respondent, on August 20, told its employees that the Union could do nothing for them that they could not do for themselves or that Respondent was not prepared to do for them in the future. Obviously this pointed out the futility of joining the Union for the purposes of collective bargaining in violation of Section 8(a)(1) of the Act.16 I find, based on the entire record, that Respondent's refusal, on or about July 22, to grant an increase in fringe benefits was based on "union considerations." This violated Section 8(a)(1) of the Act. There was a more than implied promise of benefits if the employees would reject the Union as bargaining representative. (See Sherman Distributing Company, Inc., 171 NLRB No. 194.) Respon- dent, here, made it plain to each of its employees that, if the 15 1 disregard her "feelings" that it was common knowledge in the plant that the employees, prior to this time, were aware of an intention of Respondent to increase fringe benefits This is not objective or substantial or probative evidence 16 Respondent engaged in conscious overstatements forbidden by the Union were not in the picture, they would receive an increase in fringe benefits. Thus, Respondent, in violation of Section 8(a)(1) of the Act, denied economic benefits to its employees because of the presence of the Union, and impliedly promised such benefits if the employees would reject the Union. Under all the circumstances of this case, including representation by an outstanding labor attorney, Mr. Nagel, I find no good-faith belief that it would have been an unfair labor practice to grant such allegedly preplanned benefits at that time, and I find the benefits were withheld because the Union was "in the picture." Such decision in the circumstances of this case, should be made without regard to whether a union is or is not "in the picture." Respondent's decision to withhold benefits was prompted by the Union's presence. Similarly, Respondent impliedly promised such benefits should the employees reject the Union. These actions were violative of Section 8(a)(1) of the Act.17 4. Respondent's increase in benefits while a question of representation was pending As noted, the Union lost the election on August 21, and filed objections, timely, on August 26. It is clear from Manville's affidavit that by interviewing and coercing groups of four or five employees at a time, in her office, before the election, the Respondent knew or should have known with most able counsel, that there was more than a possibility that it violated at least General Shoe Corporation, 97 NLRB 499, and that a new election might be directed. With full knowledge that the Union's objections might well be sustained and the election be set aside, Respondent after the election, lost by the Union, and before the objections were ruled on, chose to put into effect substantial increased insurance benefits for all its employ- ees. Knowing that a second election was a possibility, if not a probability, it was a violation of Section 8(a)(1) of the Act for Respondent to grant these increased benefits immedi- ately before a second election was directed. The insurance increases were to be effective as of October 1. I find that where Respondent had knowledge that objections to an election had been filed, and Respondent had reason to believe they might be sustained, and there was an unresolved question concerning representation, granting of increased benefits to employees by Respondent, during such time, violated Section 8(a)(1) of the Act.18 I find Respondent increased the insurance benefits as a reward for the employees voting against the Union and as an inducement to a favorable vote in a probably directed second election. I have considered that this Respondent committed many unfair labor practices before direction of the second election.19 I find no economic necessity evidenced by Respondent, or the record, that the increase in economic benefits in the form of increased insurance was required at that time. Act See N LR B v. Dowel! Division of the Dow Chemical Company, 420 F 2d 480 (C.A 5). 11 American Technical Machinery Corporation, 173 NLRB No 210. 19 See 20th Century Glove Company Inc, 165 NLRB No 122 19 See Ambox Incorporated 146 NLRB 1520, 1571. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This Respondent plainly restrained, threatened, and coerced its employees in the exercise of their rights as protected by Section (7) of the Act.20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and from any other invasions of its employees' rights under Section 7 of the Act, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. These unfair labor practices affect commerce within the meaning of the Act. [Recommended Order omitted from publication.] 20 See N L.R.B v C J Pearson Co, 420 F 2d 695 (C.A 1)