Ortronix, Inc.

ORTRONIX, INC. 385 Ortronix, Inc. and Sheet Metal Workers ' International Association , AFL-CIO. Case 12-CA-3249 October 28, 1968 SUPPLEMENTAL DECISION AND ORDER 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 Supplemental Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,3 conclusions,4 and rec- ommendations of the Trial Examiner. By MEMBERS FANNING, BROWN, AND JENKINS On December 13, 1965, the National Labor Rela- tions Board issued a Decision and Order, in the above-entitled proceeding, in which it affirmed, with- out comment, the Trial Examiner's Decision, adopted his findings that the Respondent had violated Section 8(a)(5) by refusing to recognize the Union after it was certified by the Board, and ordered the Respondent to take specific action 'to remedy such unfair labor practices. Subsequently, the Board filed a petition with the United States Court of Appeals for the Fifth Circuit for enforcement of its Order. Thereafter, on July 11, 1967, the Court handed down its Decision2 denying enforcement and remanding the case to the Board "for a full hearing as to the validity of the elections and certification." On December 8, 1967, the Board issued an order reopening the record and remanding the case for hearing before Trial Examiner Kessel. On December 11, 1967, the order was amended so that the hearing could be held before a Trial Examiner to be designated by the Chief Trial Examiner. The Board's Order directed a Trial Exam- iner to receive evidence to determine the validity of the elections and the certification, in conformity with the court's decree, and further ordered that upon conclusion of such hearing, the Trial Examiner should prepare a Supplemental Decision. The Respondent then filed a Motion to Amend or Clarify and a Motion to Stay, both of which were denied by the Board. On June 25, 1968, Trial Examiner Sidney Sherman issued his Supplemental Decision, attached hereto, in which he recommended that the Union's objections to the election held March 31, 1964 be sustained and the results of the election be set aside, and that the employer's objection to the election held January 21, 1965, be overruled and the Union be certified. The Trial Examiner further found that the Respondent had engaged in the unfair labor practices, as alleged, and recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Supplemental Decision. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Supplemental Decision together with supporting briefs. 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. 173 NLRB No. 57 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Ortronix, Inc., Orlando, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 156 NLRB 3. 2 380 F.2d 737 3 We agree with the Trial Examiner that the October 1963 , conduct of the Respondent alone would not require that the first election be set aside, but that those incidents were not too remote when considered in conjunction with the speeches immediately before that election, and hence the first election was properly set aside based on the totality of the Employer 's conduct (see TXD, fn. 29). We also agree with the Trial Examiner 's ruling in his in. 16 that the testimony given in an earlier hearing in another proceeding by witnesses not now available was not admissible to establish the facts to which they had testified , but not for the reason set forth by the Trial Examiner , i e., the absence of authentication of the transcript through the court reporter in that case . Rather, we note that the transcript might have been authenticated by other means and admitted for some purposes under other circumstances . However, it cannot be accepted as proof of the matters asserted in the absence of an opportunity for cross-examination of the witnesses by the Respondent and for observa- tion of the witnesses by the Trial Examiner in order that he might make credibility resolutions In accepting the findings of the Trial Examiner , we do not adopt his statement regarding the first election which implies that Respondent "won" the election . The Respondent could not win the election as it was not on the ballot. 4 In the absence of exceptions , Member Brown adopts pro forma, the Trial Examiner 's conclusions and the statements in fn 26 of his Supplemental Decision. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE SIDNEY SHERMAN, Trial Examiner: The charge herein was served upon Respondent on June 3, 1965, the complaint issued on June 9, 1965, alleging a refusal to bargain and on September 14, 1965, Trial Examiner Kessel issued a decision granting the General Counsel's motion for judgment on the pleadings, and ordering Respondent to bargain. On December 13, 1965, this decision was affirmed by the Board. ' On July 11, 1967, the United States Court of Appeals for the Fifth Circuit denied enforcement of the Board's order and remanded the case for hearing by the Board on various issues raised by Respondent.2 On December 8, 1967, the Board issued an order reopening the record and remanding the case for hearing before Trial Examiner Kessel. On December 11, 1967, this 1 156 NLRB 3 2 380 F.2d 737. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order was amended by directing that the hearing be held before a Trial Examiner to be designated by the Chief Trial Examiner, and the undersigned was duly designated for that purpose. The case was heard on April 1, 2, and 3, 1968, and the only issues litigated were those bearing on the validity of the Charging Party's certification as the representative of Respondent's employees. No briefs were filed before me. Upon the entire record,3 including my observation of the witnesses, I adopt the following findings and conclusions I THE RESPONDENT Ortronix, Inc., herein called Respondent, is a Florida corporation and is engaged at its only plant in Orlando, Florida, in the manufacture of electronic and sheet metal products. During the 12 months immediately preceding the issuance of the instant complaint, Respondent received direct- ly from out-of-State suppliers goods valued at more than $50,000 and the value of its sales and services relating to National defense totaled more than $1,000,000. Respondent is engaged in commerce under the Act. II THE UNION Sheet Metal Workers' International Association, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The central issue raised by the pleadings was whether Respondent's admitted refusal since May 28, 1965, to recog- nize, and bargain with the Union, violated Section 8(a)(5) and (1) of the Act. Subsidiary questions are whether the Union's certification on May 17, 1965, as the representative of Respondent's employees on the basis of an election held on January 21, 1965, was invalid (a) because the Board improperly set aside an election held on March 31, 1964, which the Union lost, or (b) because the Board improperly refused to set aside the election of January 21, 1965, which the Union won.4 A. Sequence of Events The Union's campaign to organize Respondent's employees began in March 1963. On September 20, 1963, the Union filed a petition for a Board elections A hearing on the petition was held on October 8, 9 and 10. On March 2, 1964, the Regional Director issued a Decision and Direction of Election.6 In the election held on March 31, 84 votes were cast for, and 166 against, the Union. On April 6, the Union filed objections to the election. On June 3, the Regional Director issued a Supplemental Decision in which he sustained certain of the Union's objections and directed a second election, and on August 17, 1964, he issued a Second Supplemental Decision, which was, in effect, an addendum to the earlier decision, and 3 For corrections of the transcript and a ruling on Respondent's motion to strike certain testimony , see the order of June 17, 1968. After the hearing, Respondent offered in evidence its Exhibit 15, which was received , after due opportunity to the other parties to object thereto. See the order of June 17, 1968. in which he found merit in an objection to the election, which he had failed to dispose of in the prior decision. Respondent's requests for review of the foregoing Supplemental Decisions were denied by the Board. The second election, held on January 21, 1965, was won by the Union, and on January 26, Respondent filed objections to the election. On April 2, the Regional Director issued a Third Supplemental Decision, and on April 12, Respondent filed with the Board a request for review, which was denied on May 14, and the Union was certified on May 17, 1965. Since May 28, 1965, Respondent admittedly has refused to recognize, or bargain with, the Union as the representative of its employees in an appropriate unit. On June 2, 1965, the Union filed the instant charge, and on June 9, 1965, the instant complaint issued. In its answer to the complaint, Respondent admitted that it had refused to bargain with the Union, but contended that the Union was not validly certified because the first election should not have been, and the second election should have been, set aside. The General Counsel moved for judgment on the pleadings, which was opposed by Respondent on the ground that it was entitled to a hearing before a Trial Examiner on the issues raised by its answer. On September 14, Trial Examiner Kessel issued a Decision granting the General Counsel's motion for judgment on the pleadings, and ordering Respondent to bargain with the Union. Respondent's exceptions to that Decision were rejected by the Board, which on December 13, 1965, issued an order affirming that Decision.? However, on July 11, 1967, the Court of Appeals for the Fifth Circuit refused to enforce the Board's order and remanded the case "for a full hearing as to the validity of the elections and certification." Pursuant to such remand, the case was referred by the Board to this Examiner. B. Discussion 1. The procedural issue At the outset, Respondent's counsel contended that the instant hearing should be governed by the rules of evidence and procedure applicable to representation proceedings, rather than by those governing unfair labor practice proceedings. Some support for this contention was afforded by the language of the Court in remanding the instant case. After reciting the various contentions of Respondent in opposing the objections to the first election and in support of the objections to the second election, the Court said. In our view there exist numerous substantial and material issues of fact-there is head-on clash between the company and Union allegations of irregularity in the two elections-which call for a formal hearing and the failure of the Board to provide one was a denial of procedural due process. See United States Rubber Company v.NL.R.B., 5 Cir., 1967, 373 F. 2d 602. The employer here seeks to overturn the result of an election and the burden is on it to show that the election was unfairly conducted. A hearing is, therefore, necessary and indispensable if a proper and fair 4 There is no issue as to the appropriateness of the unit in which the election was conducted. 5 Case 12-RC-1802. 6 Respondent 's request for review of this Decision was denied by the Board 7 156 NLRB 3 ORTRONIX, INC. 387 resolution of all the disputed facts contained in the charges and counter-allegations of the company and the Union, taken with the facts which the Regional Director considered as a result of his investigations, is to be made by the Board. Until this is done, under the circumstances here, the employer will not have been given an opportunity to carry the burden of proving its case. Citing the foregoing allusions by the Court to the burden on Respondent of showing that the (second) election was unfairly conducted, Respondent contends that the Court meant there- by to imply that, upon remand, the hearing should be conducted throughout in the same manner as a hearing upon objections in a representation case, where the objecting party (union or employer) has the burden of presenting evidence in support of its objections, and not in the same manner as a hearing in a refusal-to-bargain case, where the General Counsel has the burden of proving the Union's majority status, including, where that is properly in issue, the lack of merit in the Respondent's objections to the election on which such status is predicated. As a corollary to the foregoing contention, Respondent urged that, here, the burden was on the Union to show that its objections to the first election were meritorious, and that the General Counsel was not authorized to play a partisan role, but, as in any hearing on objections in a representation case, his responsibility was only "to insure that the record contains as full a statement of the pertinent facts as may be necessary for determination of the case."8 Under this view, the General Counsel would have been limited in the instant case to presenting evidence as to matters not in controversy or matters of record, and would have been precluded from calling and examining witnesses as to any other matter and from cross-examining Respondent's witnesses The General Counsel and the Union took issue with this view, insisting that the General Counsel was entitled to exercise all the authority conferred upon him by Section 3(a) of the Act with respect to the prosecution of complaints before the Board. Respondent's position may reflect some confusion between (1) proceedings like this, where the only matter before the Board is an unfair labor practice case, and (2) a consolidated proceeding, where a representation case and complaint case have been joined together. In the latter situation, the General Counsel is relegated to a nonadversary role with regard to issues peculiar to the representation case.9 However, here the representation proceeding has not been consolidated with, but has been merged into the complaint case, and the only issues presently before the Board for decision are those raised by the allegations of the complaint that the union was validly certified as the representative of Respondent's employees and that Respondent's refusal to bargain was therefore unlawful 10 It is axiomatic that in any unfair labor practice case the burden of proof is on the General Counsel, as the moving party, to prove the allegations of the complaint and no basis has been suggested for departing from this rule, other than the aforequoted language in the court's opinion. However, there is reason to regard such language as mere dictum, since at no point in the proceedings culminating in the decision of the court did any party contend that, if there was a hearing before the Board on the instant complaint, it should be governed by the rules pertaining to representation hearings.' i While the court's opinion is entitled to respect as the law of the case, it would seem that to justify such a radical departure as Respondent proposes from basic principles of procedure, as well as from the provisions of Section 3(a) of the Act, a clearer expression of the court's intention in that regard would be necessary. Moreover, it seems a fair reading of the court's language that it meant only to say that Respondent's contention that it was justified in refusing to honor the Union's certification because of matters allegedly affecting the validity of such certification constituted an affirmative de- fense, as to which Respondent properly had the burden of proof (or that Respondent at the very least had the burden of coming forward with some evidence to offset the fact of the Union's certification.) That would explain why the court alluded only to Respondent's burden in this proceeding, and not to that of the Union, which, of course, was not in the position of pleading an affirmative defense, but only of asserting the validity of the allegations in the complaint. In view of the foregoing considerations, Respondent's proposal to limit the General Counsel's participation in the hearing was rejected at the instant hearing,' 2 and that ruling is now adhered to.i 3 2. The first election a. The Decision and Direction of Election That Decision, which issued on March 2, 1964, provided, inter alia, that a number of individuals, whose status as supervisors was in dispute, might vote subject to challenge. In its request for review of that Decision, Respondent contended that the reasons assigned therein for disposing of the issues in that manner were invalid and that the Regional Director should have made a determination in that Decision as to the eligibility of these persons. The Board denied the request for review. In its answer to the instant complaint, Respondent, in effect, renews the foregoing contention. However, Respondent did not allude thereto at the instant hearing. In any case, since 8 See Board 's Statement of Procedures , Sec. 101 20 (c) and 101 21 (c) 9 Such consolidation is often resorted to where the Board has before it at the same time ( 1) a representation case in which a union has filed objections to an election because of alleged coercive preelection conduct by the employer, and (2) an unfair labor practice case, in which the same conduct is alleged to violate Section 8(a)(1) of the Act In such a consolidated proceeding, the General Counsel properly prose- cutes only those matters pertaining to the objections which fall within the scope of the complaint. As to any other aspect of the objections, the General Counsel plays a neutral role, and the union has the burden of adducing relevant evidence 10 Moreover , even if it be assumed that there is a consolidation here in substance , if not in form , of the two proceedings, it is clear that the issues pertaining to the validity of the certification are not peculiar to the representation case but necessarily stem from the allegations of the complaint , and are therefore properly prosecutable by the General Counsel 11 Certainly, Respondent had no reason to urge the court to place on Respondent the burden of proving its objections 12 However, out of an abundance of caution, I directed that all witnesses called by the General Counsel be described on the record as witnesses "for the General Counsel and/or the Union." 13 See Belber Manufacturing Corp , 146 NLRB 358, 366, where the Board rejected a contention similar to that urged here by Respondent. Respondent does not contend that due process requires that it be afforded a representation case hearing rather than an unfair labor practice case hearing Such a contention would, in any event, be groundless. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union lost the election, any error in the Regional Director's treatment of the eligibility of alleged supervisors could not have prejudiced Respondent, and it is presumed that Respondent does not now seriously contend that the first election (which it won) was invalid for that or any other reason. b. The Union's objections On June 3, 1964, the Regional Director issued a Supple- mental Decision sustaining two of the Union's objections to the first election, (Objections Nos. 4 and 7) and in his Second Supplemental Decision, which was, in substance, merely an addendum to his prior decision, a third objection (No. 2) was sustained. These will next be considered. (1) Interrogation Objection 2 alleged interrogation of employees about their Union membership, activities, or preferences. The Regional Director found that on various dates in October 1963, six employees were interrogated about their own Union senti- ments or those of other employees. Although such conduct occurred from 5 to 6 months before the first election, the Regional Director concluded that it was not too remote to affect the election. In its request for review of the Second Supplemental Decision, Respondent did not take any issue with the facts found by the Regional Director but only with his legal conclusion that the interrogation was not too remote in time to affect the election. Respondent's request for review on this ground was denied by the Board, and the court's opinion contains no comment on the merits of this, or any other, objection to the election. 14 At the instant hearing, this, as well as the other objections were fully litigated de novo, and it will be considered de novo on the assumption that this was contemplated by the remand. Employee Rose Ruland testified that about October 1, 1963, Creamer, an admitted supervisor, after asking another employee, Steelman, in the witness' presence, what he thought of the Union, turned to the witness and asked her the same question, and that on October 24, Morusty, Creamer's assis- tant, interrogated the witness concerning her wearing of a Union button. Employee Barris testified without contradiction, and I find, that in October he was asked by Howitt , an alleged supervisor, how he and other employees felt about the Union, and how the witness would vote in the election, if it were held the next day. However, Barr acknowledged that Howitt told him at the same time that it was up to him whether to vote for or against the Union, and that he did not have to answer Howitt's questions. Irene Bentley, an employee, testified that early in October, Hooker, an admitted supervisor, asked if the witness had seen 14 As already noted, the court remanded the case only because it thought Respondent had been foreclosed from presenting additional evidence, and not because of any disagreement with the propriety of the Regional Director 's findings on the evidence discussed by hun. 15 Barr was classified as a leadman and directed the work of five or six other employees . Respondent did not affirmatively contend that he was a statutory supervisor , and such evidence as was elicited on this point would not, in any event, support such a contention. 16 In addition to the foregoing , the General Counsel offered in evidence testimony at a prior hearing, in another unfair labor practice case against Respondent (Case 12-CA-2761), concerning interrogation another employee take one of the Union cards or buttons that had been distributed to the employees that day during their lunch break.! 6 Hooker denied the interrogation ascribed to her by Irene Bentley, but admitted that she was not relying on her present recollection of the matter but only on a written statement prepared in 1963 by an agent of Respondent. Under all the circumstances, I credit Irene Bentley's testimony as to the interrogation by Hooker. Creamer testified that he became a supervisor in the beginning of 1963, and that he was "reasonably sure" that he did not interrogate Ruland or any other employee. When asked to explain the basis for this belief, Creamer, after some hesitation, cited only the fact that he had been instructed by higher management not to discuss Union activities, and stated that he was sure he complied with that instruction. As I was favorably impressed by Ruland's demeanor and as her recollec- tion of the matter seemed firmer than Creamer's, I credit her testimony and find that both she and Steelman were interro- gated by Creamer in the manner described by her; and, as Morusty did not testify, I also credit Ruland as to the interrogation by Morusty. Morusty's supervisory status was litigated at some length. Ruland testified that Morusty, acting as Creamer's assistant, assigned work to about 25 employees, and that Stanley Bentley, an admitted supervisor, told the witness to see Morusty about time off, in the absence of Creamer, and to consult Morusty about any work problems or personal problems. Moreover, it was stipulated that Respondent's files contained a number of "warning notices" issued by Morusty in the summer of 1963, consisting of adverse comments on the performance of several employees, and recommending that two of them be terminated. Respondent's President Kilbey acknowledged that warning notices in an employee's personnel file might ultimately lead to disciplinary action, depending on how serious the matter was. Neither Morusty nor Jones, who had ultimate responsibility for disciplinary action in her department, nor Stanley Bentley was called to testify.! 7 Under all the circumstances, particularly the undenied testi- mony of Ruland concerning Stanley Bentley's instructions to her to report to Morusty for time off in the absence of Creamer and to take up with Morusty any work problems, which impliedly included any grievances about her working environment and her relations with her fellow employees, it is found that Morusty was a statutory supervisor at all times here relevant. As to Howitt, the record contains nothing about his duties and authority other than a stipulation that he was night foreman in the mechanical department. As this alone is insufficient proof that he was a statutory supervisor, no finding of interrogation by Respondent will be based on Barr's testimony about Howitt. of other employees by Creamer , Stanley Bentley, and Hooker. The General Counsel explained that the witnesses who so testified at the prior hearing were no longer available Respondent objected to such offer, and , as the General Counsel failed to authenticate the prior record through the court reporter in that case , the proffered testimony was rejected as hearsay . (The poor case culminated in a settlement agreement ) 17 Respondent 's counsel explained that he was unable to locate Morusty, and that Bentley was presently in Indiana , and it was not felt that the expense of obtaining his testimony was warranted No reference was made by counsel to Jones. ORTRONIX, INC 389 It follows that the General Counsel has proved 4 instances of interrogation involving only 3 employees (Ruland, Steelman and Irene Bentley) out of a unit of over 300 employees, occurring over 5 months before the election. In view of the remoteness of these incidents in relation to the election,18 and the relatively small number of employees affected,19 a finding that by the foregoing interrogation alone Respondent inter- fered with the election is not deemed to be warranted.20 (2) Threats and promises Union Objection 4, which was sustained by the Regional Director, reads:21 Promised employee benefits conditioned on refraining from voting for or supporting the Petitioner [the Union] , and directly and in a veiled manner threatened employees with economic reprisals if they supported the Petitioner or if it won the election. In support of this objection, employee Campbell testified that about October 1, Parrish, an admitted supervisor, re- marked in the presence of an unspecified number of employees that they might as well enjoy their coffee breaks while they could, because they would be taken away when the Union "got in." Although Parrish controverted this testimony, I credit Campbell on the basis of demeanor, as well as the circumstantiality of her testimony. Campbell testified, also, that about November 1, Personnel Director McGraw, at a plant meeting, warned that anyone who solicited for the Union on company time would be discharged 22 McGraw testified that in the early spring of 1963, there was posted on plant bulletin boards a notice, a copy of which was received in evidence, which set forth 23 plant rules, enforceable by suspension or discharge, including a prohibition of the following conduct: Solicitation within the plant for personal gain or for any other reason, including membership in any organization while on Company time. Welfare and similar collections may be made only after receipt of written permission from the Division Superintendent or Department Head. According to McGraw, after receiving complaints from supervisors that a considerable amount of production time was being lost by discussions among employees while at work, and assuming that such discussions involved solicitation, he re- minded the employees of the foregoing rule and of the penalties prescribed for violation thereof. McGraw acknowl- edged that, in citing the ban on solicitation in the rule, he might have indicated that this included solicitation for a union. President Kilbey's version was that he received numerous reports from employees that they had been solicited by other employees during work hours to sign Union cards, and that he directed McGraw to talk to the employees about the matter. While there are obvious discrepancies between the versions of McGraw and Kilbey, they are not so material as to require rejection of their testimony in toto, particularly when one considers that it was given more than 4 years after the event, and that there is no other contrary testimony. It is accordingly found that the November 1 warning was delivered by McGraw as a result of complaints by supervisors or employees about Union solicitation during work time. Although Campbell professed to be unaware of any no- solicitation rule, Respondent's President Kilbey confirmed the existence and promulgation of the foregoing notice,23 and, in view of such corroboration, it is found that such notice was posted at least as early as the spring of 1963. Accordingly, even if it be assumed, as Campbell's testimony implies, that McGraw on November 1, made reference only to union solicitation on company time and warned that any employees engaging therein would be discharged, it is not clear how such a warning could afford ground for setting aside the election. The General Counsel does not challenge the validity of the no-solicitation rule.24 The gravamen of his complaint seems to be that, while warning the employees on November 1, that Union solicitation during work violated the plant rule and would be punished by discharge, Respondent faded to issue any like warning with respect to other forms of solicitation during work time, which, according to the testimony of Campbell, prevailed in the plant However, the rule itself, proscribed such other solicitation, and there is no evidence that Respondent modified the rule so as not to apply thereto. Certainly, such modification may not be inferred merely from the fact that Respondent, confronted with a special problem involving Union solicitation on company time, called to the attention of the employees the fact that such solicitation violated the rule. Nor may such modification be inferred from the testimony elicited by the General Counsel from Campbell concerning work-tune solicitation by employees of other employees to buy merchandise. Although such solicitation, so far the record shows, was not the target of any warning by McGraw, there is no cogent evidence with respect to such 18 Irene Bentley testified that Hooker's interrogation did not affect her vote in the election , and it is highly speculative that the votes of Ruland or Steelman were affected by the interrogation described above, after an interval of over 5 months. 19 There was no evidence that any other employees were aware of these incidents 20 West Texas Equipment Co., 142 NLRB 1358. 21 Objection 7, which was also sustained, substantially duplicates Objection 4, and will not here be separately considered. 22 There is a procedural problem here. While Objection 4 alleged threats of "economic reprisal " for adherence to the Union, no reference was made to the foregoing November 1 incident by the Regional Director in dealing with Objection 4 It is true that reference was made thereto in the Second Supplemental Decision in connection with the discussion of Objection 2 (interrogation), but it was there cited only in justification of the Regional Director's view that the effect of the interrogation in October was not dissipated by the passage of time, since Respondent thereafter engaged in other unlawful acts, including the November 1 warning . It may be, therefore , that the incident should be considered, if at all, in connection with Objection 2 rather than 4. However, as the result would not be affected, in any event , it will be dealt with here. 23 While he gave the date of such promulgation as the late summer of 1962, rather than the spring of 1963, I do not deem this discrepancy of sufficient moment to require rejection of Respondent 's evidence that such a rule was in fact promulgated before McGraw's November 1 warning Neither Campbell nor any other employee specifically denied that the notice in question was posted , and Campbell's ignorance of the no-solicitation rule may well be attributed to her failure to read the notice or to read that portion thereof relating to that rule. 24 While the ban on solicitation during "company time " might be deemed ambiguous, in that such time could be construed to include work breaks, the General Counsel did not so contend, and there was no evidence that it was in fact so construed by Respondent or the employees There was, on the contrary, evidence that the employees freely engaged in solicitation for the Union during work breaks. (See Irene Bentley 's testimony, related above , regarding the distribution of Union cards or buttons during lunch time ) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicitation, as there is in the case of the Union solicitation, that higher management was apprised thereof,2 5 or that it was so extensive as to cause substantial loss of production time. Accordingly, there is insufficient basis for finding that on and after November 1, the Respondent construed the no- solicitation rule as directed only against Union activity or intended to convey the impression to the employees that that was the sole object of the rule. Accordingly, it is found that McGraw's warning of November 1, does not warrant setting aside the election.26 Respondent's speeches Finally, in support of the Union's fourth objection there were introduced in evidence copies of speeches given by McGraw to employees on March 23, and 26, 1964, and a speech by Kilbey on March 30, 1964. McGraw's speeches stressed, inter alia, the danger under a union of strikes and loss of employment. Thus, the March 26 speech contains the following (1) With the Union, there is always the danger of strikes and work stoppages which cause unemployment. If any- thing, the Union guarantees you insecurity. (2) Without a union, we can guarantee uninterrupted production and delivery to our customers.... With a union, we face the danger of strikes and work stoppages which interrupt production, decrease business, lose customers, and cause the loss of jobs and fringe benefits. (3) When the union makes a demand which Ortronix feels is not in the best interests of the employees and the Company, we will say NO. The union will probably call a strike, and there goes jobs and business down the drain. (4) Under the law, if the Union makes you go out on strike, Ortronix is free to replace the strikers with new employees. When the strike is over, someone new has your job, and you are out in the cold. The law does not force Ortronix to rehire you. In addition, the March 26 speech referred to the danger that under a Union contract the employees might lose some of their existing benefits. On this score, the speech contains the following (5) Bargaining does not start with present benefits. We may start bargaining with no benefits and go up from there. The union may even "trade" benefits for things they want for union security. For example, a check-off clause may be "traded" for one or two of your paid holidays. (6) The union cannot guarantee you anything in the way of new and additional benefits. They can't even guarantee you that you will keep all of the benefits you now have. If the union demands interfered with the efficient operation of the Company, the Company would be legally justified in demanding a reduction in wages or fringe benefits in order to operate profitably 27 In the March 30 speech, Kilbey cited examples of the connection between unions and strikes and the difficulty of operating profitably under work restrictions imposed by unions, and concluded on this note: What can the Union get you. In my opinion, all they can guarantee you is a lot of grief and that you'll pay your dues. In addition, Kilbey's speech indicated that as a result of certain new business obtained by Respondent it expected to be in a position "to pave some of the parking lots, buy new hand tools, afford company picnics and provide outdoor lunch benches." At the hearing, when asked whether he made the latter remarks to show that the employees did not need a union to obtain the benefits mentioned by him, Kilbey candidly answered, "Correct." That this was his purpose was evident, in any case, from the timing and circumstances of his speech. That a promise of benefits made for such a purpose interferes with freedom of choice in an election hardly needs citation of authority. As to the various remarks related above concerning the dire consequences of union representation, the conclusion that they are coercive seems amply supported by such Board decisions as Dal-Tex Optical Company, Inc,28 and Astronau- tics Corporation of Amenca.2 9 25 Kilbey professed to be aware only of the annual collections among employees for the Community Chest, which he authorized, as provided for in the rule (He admitted that in September 1963, he authorized a political candidate to tour the plant and shake hands with the employees during work time However, this was not contrary to the letter of the rule, which forbade only solicitation by employees, and was, in any case, only an isolated incident.) Campbell testified to collections by "supervisors" from employees during worktime for an employee "Sunshine Club." The only "supervisor" identified by her in that connection was Sipe, who directed Campbell's work However, the evidence as to his supervisory status was meager, and, in any event, under the terms of the rule, such collections were permitted if authorized by the Division Head or Department Superintendent. Absent any evidence on that point, it may not be assumed that there was no compliance with the rule in that aspect. Campbell's testimony indicates, also, that for an unspecified period prior to December 1963, she was solicited at work by McLaughlin to buy Avon products. The record shows that McLaughlin was a statutory supervisor, albeit a minor one, at least until August 1963. However, there was no evidence to refute the denial of McGraw and Kilbey that they were aware of any merchandising activity by employees (or supervisors) during worktime. (Since McLaughlin, if she did engage in such activity, contrary to the company rule, would not be likely to disclose that fact to higher management, this is not a situation where her knowledge may properly be imputed to Respondent. The same would be true of Sipe, were he deemed to be a supervisor) See Astronautics Corporation of America, 164 NLRB No 89, Campbell Soup Co , 170 NLRB No 167 26 Even if it were found that such warning, under all the circum- stances, converted the general no-solicitation rule into a rule only against Union solicitation, it still would not be clear how such a rule could unduly impede the Union's efforts to reach the employees. I am aware of no authority for holding that the promulgation of such a rule constitutes interference with an election, absent discriminatory enforce- ment thereof as between competing unions or factions involved in the election. There was no evidence of such discrimination here. 27 The foregoing remarks were delivered in the form of answers to questions posed by McGraw According to his testimony, some of these questions had actually been asked by employees on the occasion of his March 23 speech, as in the case of excerpts ( 1), (3), and (6), above The other questions originated with McGraw, himself. 28 137 NLRB 1782 (warning that collective bargaining may lead to loss of benefits, and would probably result in strikes and loss of employment) See also The Trane Company, 137 NLRB 1506. 29 164 NLRB No. 89 (bargaining would start "from scratch", employer not required to continue existing benefits ). In that case the Board cited the fact that the "bargain -from-scratch" statement was made in the context of other unfair labor practices. Here, while it has been found that the preelection interrogations and the threat by Parrish, considered above, were too remote in time to affect the election, the same conclusion does not apply when they are considered in conjunc- tion with the preelection speeches . This is particularly true of Parrish's threat that, if the Union prevailed , Respondent would take away the employees ' coffee breaks, if one considers such threat in conjunction with McGraw's warning that Respondent might bargain from "no benefits" and that there was no assurance that under a union contract existing benefits would be retained ORTRONIX, INC 391 With respect to the present objection, Respondent appar- ently relies on the authorities and arguments appearing in its request for review of the Regional Director's Second Supple- mental Decision.30 There, the thrust of Respondent's argu- ment was that, contrary to cited precedents,3 i the Regional Director, in evaluating Respondent's propaganda, had failed to consider that it was issued in reply to the Union's election- eering claims and arguments In this connection, the record shows that between March 23 and 27, 1964, the Union distributed seven handbills, which stressed the inadequacy of Respondent's wages, cited other alleged substandard working conditions in Respondent's plant, and enlarged on the efficacy of a union in remedying these conditions and as a protection against arbitrary discharge. Typical is the following A decent Wage Scale and Grievance Procedure can be yours under a strong Union Agreement negotiated by the Sheet Metal Workers Union and your Committee at Ortronix. Certain of the cases cited by Respondent indicate that the Board will allow greater leeway to an employer, in a preelection campaign, where his remarks are provoked by, or addressed to, the Union's propaganda claims. However, none of these cases goes so far as to hold that, in response to a Union's claim that it will aid the employees to achieve greater job security and other benefits, an employer may assert, as here, that designation of a union as the employees' bargaining agent is a guarantee of insecurity and "grief " While Respond- ent was justified in pointing out that the Union's demands would be the subject of negotiation and that no one could assure the employees what the outcome would be,32 or that Respondent's financial condition would limit the amount of any wage gains under a union,33 or that it had the right to replace economic strikers in the event of a strike,34 there was no justification for implying, as Respondent did, that loss of job security and other forms of "grief" would be a certain and inevitable result of voting the union in. Moreover, none of these cases holds that a union's election- eering promises justify an employer in making promises of his own regarding improvements in working conditions .3 5 It is accordingly concluded that, even after giving due weight to antecedent events, McGraw's speeches and Kilbey's speech were coercive in the respects noted above and war- ranted setting aside the first election. 3. The second election This election was held on January 21, 1965, and resulted in a vote of 79 for, and 59 against, the Union.36 Respondent filed timely objections to the election on five grounds, all of which were overruled by the Regional Director, without a hearing, in his Third Supplemental Decision, and Respondent's request for review of such decision was denied by the Board. The first objection in effect asserts merely that the second election was invalid because the first election was improperly set aside. Consistently with the findings above, this objection is overruled. Respondent's second objection was to the effect that the selection by the Regional Director of the date of the second election was arbitrary, in that Respondent had requested an earlier date. At the hearing, Respondent stated that it did not intend to offer any evidence in support of this objection. Presumably, this signified waiver of the objection. In any case, absent any evidence in support thereof, it is hereby overruled. The third objection alleges that the Regional Director acted arbitrarily in including in the official notice to employees of the time and place of the second election a statement as follows: NOTICE TO ALL VOTERS: The election conducted on March 31, 1964, was set aside because the National Labor Relations Board found that certain conduct of the Em- ployer interfered with the employees' exercise of a free and reasoned choice. Therefore, a new election will be held in accordance with the terms of this Notice of Election. All eligible voters should understand that the National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit, and protects them in the exercise of this right, free from interference by any of the parties. At the instant hearing, in support of this objection, Respondent offered in evidence only a copy of the official election notice. In rejecting this objection, the Regional Director relied on The Lufkin Rule Company case,3 7 where the Board, in response to a motion filed by the union involved, directed that the official notice of a second election contain language substantially identical with that quoted above.3 8 Neither in its request for review nor at the instant hearing did Respondent suggest any reason for distinguishing the Lufkin case,39 and I can perceive none. Accordingly, it is recommended that this objection be overruled. Respondent's fourth objection reads as follows. That the Petitioner [Union] , through its agent or those acting for or on behalf of the Petitioner, misrepresented to the employees of the Employer material facts relating to the profit of the Company on the eve of the election and at a time when the Employer did not have an adequate opportunity to respond. Further, the Petitioner made material misrepresentations in handbills distributed by the Petitioner on the 18th day of January, 1965 and on the 30 Respondent made no argument on the merits before me , but in its answer to the complaint incorporated by reference the contentions advanced in its various requests for review. 31 Decorated Products, Inc., 140 NLRB 1383, Arch Beverage Corp., 140 NLRB 1385, Hy Plains Dressed Beef, Inc., 146 NLRB 1253, American Greetings Corp., 146 NLRB 1440, Claymore Manufacturing Co , 146 NLRB 1400, Shure Brothers Incorporated, 147 NLRB 43 32 See Hy Plains Dressed Beef, Inc, supra. 33 Ibid, Arch Beverage Corp., supra 34 Decorated Products, Inc., supra. Moreover, had Respondent here commented on the Union's own strike record, rather than attempting to equate unions , in general , with strikes , such comment might well have been privileged. See American Greetings Corp , supra, Shure Brothers Incorporated, supra 35 The Board has consistently refused to equate union promises with employer promises in this respect , but regards the latter alone as coercive, the rationale being that the employer has the obvious , present power to fulfill his promises , whereas the fulfillment of the Union's promises depends on contingencies, which are either apparent to the employees or may readily be pointed out to them by the employer. 36 See G C. Exh. 7. 37 147 NLRB 341. 38 The instant objection contained an assertion by Respondent that it believed that the disputed language was inserted in the notice by the Regional Director on his own motion, and not at the request of the Union. However, while in the Lufkin case the Board acted on a motion by the union involved, there is no reason to believe that such a motion would be required in all cases. 39 In fact , in its request for review, Respondent conceded that the application of the rule of the Lufkin case to the instant situation was "a matter of apparent discretion " and offered no argument with respect thereto. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 19th day of January, 1965. Such conduct prevented the employees from exercising their free and untrammeled choice in the election. In Hollywood Ceramics Co, Inc.,4 0 the Board announced that, in determining whether a misrepresentation warranted setting aside an election, it would consider the following factors 1. Whether the misrepresentation involved a substantial departure from the truth with regard to a matter of more than de minimis significance to the employees. 2. Whether the other party had an opportunity to make an effective reply. 3. Whether the employees had such independent knowl- edge of the subject matter of the misrepresentation as to enable them adequately to evaluate it 4. Whether the party making the misrepresentation had such intimate knowledge of the subject matter thereof that the employees might be expected to attach special weight thereto 4 1 In discussing hereinafter the alleged Union misrep- resentations, an attempt will be made to indicate the extent to which the foregoing factors are applicable. At the outset, it may be noted that none of such misrepresentations related to matters within the peculiar knowledge of the Union. In support of the instant objection, Respondent adduced the following- a. The January 18 handbill A union circular distributed on January 18, 1965, read, in part, as follows: (1) The employees have been shabbily treated in most instances To name a few ... How well were you informed and how well were you treated when pay day came and went, and you got no pay? Was management thinking of you ... They were not only silent, they failed to show their face.... (2) How about the 12% pay cut? Has this been fully restored? (3) How about those employees on layoff this summer ... How many, when recalled, received their former inade- quate low wage rate? Most, if not all found they had lost their "seniority" and were forced to start again at the "new employee" hiring rate! Was this fair treatment9 (1) The missed payday As to (1), above, the reference there is to the fact that on December 13, 1963, Respondent was unable to meet its payroll and no pay checks were distributed. Respondent takes issue only with the allegation in the handbill that management "failed to show their face" on that occasion. Respondent adduced testimony that on December 13, pursuant to an announcement made to all employees over the plant public address system, several representatives of management circu- lated throughout the plant and made small loans out of their 40 140 NLRB 221 41 E g , where a union misrepresents the benefits obtained by it for employees in another plant For cases involving application of one or more of the above criteria, see York Furniture Corp., 170 NLRB No. 69, United Steelworkers of America (Luxaire, Inc.) v. N.L.R.B., 393 F.2d 661 (C.A.D.C.), and cases there cited , Newport Mining Corp., 170 NLRB No. 85. own funds to employees , in order to mitigate any hardship they might suffer as a result of missing their pay. As there was no effective contradiction of such testimony , it is found that such loans were in fact made and that the statement in the handbill that management , in effect , ignored the employees' plight on December 13, was to that extent inaccurate. However, in a speech delivered by McGraw on January 20, the day before the election , the following reference is made to this allegation of the handbill: The Union didn't tell you how Mr . Thiele and Mr. Kilbey and Mr. Bowers dug down into their own pockets to give personal loans to employees when we didn't get paid. Is this what the Union calls "not showing their face?" It is evident, therefore , that Respondent not only had an adequate opportunity to make an effective reply to the Union's charge, but did in fact make such a reply. (2) The "12 per cent pay cut" and the recall of employees at the "new employee" rate As to (2), above, McGraw acknowledged at the instant hearing that the employees suffered a reduction in pay in April 1964, but insisted that this amounted only to 9 to 10 percent and not 12 percent, as was represented in the handbill. Union Agent Reid testified that he was informed by employees that the wage cut amounted to 12 percent, and employee Watts testified (a) that a management representative announced that there would be a 12 percent cut, and (b) that his own hourly pay was in fact cut from $1.99 to $1.75, or by slightly more than 12 percent. From a review of an exhibit prepared from Respondent's own records, which shows the extent of the pay cuts for about half of Respondent's work force (as of the date of the second election),42 it appears that, while some employees hourly pay was cut by more than 12 percent,43 m the vast majority of cases the reduction amounted to less than 12 percent, and in some cases was even less than 5 percent. It seems not unlikely, therefore, that McGraw's figure of 9 to 10 percent was closer to the average percentage loss suffered by the employees than the Union's 12 percent figure. To that extent, the Union's statement is deemed inaccurate. As to (3), above, Respondent's records show that 27 employees were laid off in the spring and summer of 1964, and recalled in the fall months. McGraw testified that, while these employees lost their seniority by reason of their layoff, their pay rate was not adversely affected thereby, and they returned to work at the same rate as they had when laid off, subject to any intervening, plant-wide changes in wage rates.44 Respond- ent's records show, that, while 3 of the 27 laid off employees returned at the same rate as was currently being paid to newly hired employees in the same classification, the rest returned at rates ranging from 5 cents to 40 cents above the current hiring rate Thus, the Union's assertion that "most, if not all" of the laid off employees returned at the hiring rate was substantially inaccurate Although it has been found that (2) and (3), above, contained departures from the truth, it is appropriate to inquire under the rule of Hollywood Ceramics, supra, whether, 42 Resp . Exh. 15. 43 E.g., M Hardeman ( 14+ percent), Nevius (17+ percent), Adkins (13 percent), Ohmer ( 14 percent). 44 Such changes included the 9 to 10 percent pay cut effected on June 1, 1964, which is discussed above, and subsequent , partial restoration of such pay cut. ORTRONIX, INC 393 inter alia, the employees had sufficient independent knowledge of the subject matter of the misrepresentations to enable them to discount them, and whether Respondent, in any event, had sufficient opportunity to expose the Union's inaccuracies. The record shows that McGraw made no reference to either of the foregoing representations in his January 20 speech, and at the hearing he gave shifting explanations therefor, at first insisting that he either did not take note of the foregoing statements in the handbill, or that, in the case of the allegation as to the pay cut, he did not have an opportunity to verify the Union's 12 percent figure before he delivered his speech, but, when confronted with a pretrial affidavit, in which he attributed his failure to comment on these matters in his speech to the fact that he did not regard them as sufficiently important to warrant comment, McGraw acknowledged that such was in fact his judgment on January 20 . He insisted, however, that, in reaching this conclusion, he had considered only the fact that the older employees would be familiar with the true facts about the pay cuts and the rates paid those recalled from layoff, either through their personal experience or thanks to the plant "grapevine,"4 s and that he had overlooked the fact that 30 odd employees had been hired after June 1, 1964, when the pay cut was instituted, and so had no personal knowledge of the facts pertaining thereto, and would not, he assumed, acquire such knowledge or learn the truth about the rates paid to those recalled from layoff. When asked if he made this assumption because the newly hired people were not "in" with the older employees, McGraw answered vaguely, "More or less," and offered no other explanation. Thus, the Respondent is now in the position of asking the Board to overrule the judgment made on the spot by its own personnel director as to the materiality of the inaccuracies in the Union's propaganda, and as the only basis therefor cites his asserted afterthoughts about the validity of certain assump- tions made by him on January 20-afterthoughts, which not only conflict with the initial reason assigned by McGraw for not answering the Union' s allegations, but which are predi- cated on an apparently arbitrary assumption that, while the plant grapevine was so effective as to reach all the older employees within 10 minutes after the event,46 it would not reach any of the newer employees at all. It seems that little weight should be given to McGraw's attempts to discredit his own initial judgment through un- supported speculation. Rather, such initial judgment is entitled to controlling weight as that of the representative of manage- ment who was in the best position to appraise the temper and mood of the employees and to determine what items in the Union's handbill were likely to influence their choice in the election. In any case, it can no longer be seriously contended that Respondent did not have an adequate opportunity to reply to those misstatements. This is abundantly clear from McGraw's own, final position that his failure to reply was due to considerations other than lack of opportunity. It is accordingly concluded that the employees had suffi- cient independent knowledge of their own rates and those of their fellow employees to take the sting out of the Union's misrepresentations as to those matters, and that, in any case, Respondent had sufficient opportunity to make an effective reply. b. The January 19 handbill On January 19, the Union distributed a handbill which, in effect, labeled as false a management promise to restore past wage cuts, and posed the following question' Is it not true that the overall wage pattern is lower than a year ago? A year and a half ago' Two years agog In his January 20 speech, McGraw stated: We're restoring the wage cut as fast as we can just as we promised When it is completely restored we'll go to work on the merit review porgram, just as we promised you last October.... Every cent that can be channeled into wages is being spent that way, and we guarantee that we will continue to do this until everyone is making at least as much as he was last June, before the wage cut. It is thus clear that Respondent not only had an oppor- tunity to, but did, comment on the Union's charges regarding the restoration of the wage cuts and the current wage level. It is also notable that in his speech, McGraw neglected to take issue with the claim that the wage cuts had not been restored and that the overall wage pattern was currently lower than in the past. At the hearing, McGraw at first asserted that "almost all" the wage cuts previously effected had been restored by January 20, but he later testified that as of January 20, no employee's wage cut had been fully restored 47 As to the Union's allegation that the overall wage pattern was lower in January 1965, than at various times in the past, McGraw insisted that it was false because Respondent's "basic pay policies," as established in January 1963, had not changed. In explaining this conclusion, he stated, "The basic rates for the jobs and the methods for hiring had not been changed or altered in any way" at the time of the second election. However, McGraw acknowledged, in effect, that in January 1965, the actual level of wages was lower than the year before Thus, Respondent's position is, essentially, (1) that the Union's charge that management had failed as of January 20, to fulfill its promise to restore wage cuts was false because by that date some progress had been made in that direction, and (2) that the Union's claim that the "overall wage pattern" was lower than in the past was false, because there had been no change adverse to the employees in basic wage policies. However, both these positions assumed that the employees would interpret the Union's allegations in a particular manner. Thus, as to (1), above, it is assumed that the employees would interpret the charge as to the wage cuts as meaning that no part of such cuts had been restored (which was false) and not 45 According to McGraw, this grapevine was so effective that 10 minutes after the laid off employees were recalled "their rates were known by everybody in the plant." 46 See preceding footnote. 47 From examination of Respondent's Exhibit 15, which, inter aka, lists the relevant pay rates of all the "older" employees not affected by the 1964 layoffs, (about half of the unit in January 1965), it appears that a few employees, who were still in the same classification as they had been before the June 1964 pay cut, had by January 1, 1965, in fact, been fully restored to their former rate . However, as to the bulk of such of these employees as were on that date still in the same classification as before the cut the exhibit shows that not more than half of the loss in pay rate had been restored , and as to some, particularly those in the higher brackets, there had been no restoration at all Thus, Ohmer, who had in June 1964, suffered a cut from $2.90 to $2.50, was still receiving $2.50 on January 1, 1965 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as meaning that the wage cuts had not been fully restored (which was true). Even if one accepts this view, it is difficult to see how the employees could have been misled as to the extent to which their former pay had been restored, since we are dealing here with employee wage rates, which, according to McGraw's own testimony, were a matter of instant, common knowledge among the employees 48 In any case, the more likely construction of the Union's charge is that management had not fulfilled such promise as it had made regarding restoration of the wage cuts. Unfortunately, there is no evidence as to what that promise was other than the self-serving, hearsay evidence of the statement in McGraw's speech that the promise was to restore the wage cuts "as fast as we can." Even if it be assumed that that was all that management promised, the Union's charge amounted merely to an expression of opinion that Respondent had not restored the wage cuts as expeditiously as it could have done. Clearly, such an expression of opinion was susceptible of evaluation by the voters. As to (2), above, Respondent assumes that the employees would construe the charge regarding the decline in the wage "pattern" as referring to its "basic pay policy" and not to the actual level of wages, which admittedly had, in fact, declined during the preceding year.49 Since it was natural for the employees to be more concerned about their actual take-home pay then about such a nebulous concept as Respondent's pay policy, it seems more realistic to assume that they regarded the handbill as referring to the actual pay level. Moreover, it is not clear from McGraw's testimony what he meant when he said that Respondent's basic pay policy had not changed since 1963, citing the fact that there had been no change in the "basic" job rates and hiring "methods." Even if this is construed as meaning that there had been no change in starting rates, Respondent's records do not confirm this entirely. Thus, Respondent's Exhibit 15, prepared from such records, shows that, while employees had previously been hired for the job of "S M 2/C" at rates ranging from $2 to $2.50 an hour, the hiring rate for that classification in the fall of 1964 was only $1.85 an hour. Moreover, it appears from such records that as a result of the June 1964 pay cut, the wage rates of at least seven employees50 were reduced below their hiring rate It is not clear, therefore, what significance to attach to McGraw's testimony about an unaltered "basic" rate. Moreover, while admitting that Respondent's merit review program, which had formed the basis of all merit increases, was suspended in the spring of 1964, McGraw failed to explain why he did not regard this as a change in "basic pay policy" adverse to the employees Accordingly, whatever view one takes of the matter, the Union's charge regarding Respondent's wage pattern has not been shown to be false, and, indeed, appears to be amply warranted by the facts. Moreover, even if it were thought to be in some way misleading , such charge concerning the em- 48 For reasons indicated above, I give no weight to McGraw's "assumption" that such knowledge did not extend to those 30 odd employees hired since June 1964. 49 There was no evidence as to how the level of wages in January 1965, compared with that in effect on the other dates mentioned in the handbill Even apart from the Court of Appeals ' statement as to Respondent 's burden of proof , it would seem that it was incumbent on Respondent to come forward with some evidence on that score In any case , McGraw had adequate opportunity to point out in his speech any inaccuracy in that respect to the Union's charge, but failed to do so. ployees' own wage rates would be susceptible of evaluation by them for reasons already stated. c. The union meeting Respondent adduced evidence concerning an alleged misrep- resentation at a Union meeting, with regard to Respondent's profits Employee Haught testified that at a Union meeting on January 19, 1965, attended by 40 to 50 employees, and presided over by Union Agent Reid, one of those in attend- ance, Colleja, announced to all those present that, according to a newspaper item, Respondent had "cleared" $160,000, and that he thought the employees were "entitled to some of it", that the witness asked Colleja what paper he was referring to, remarking that he had not seen the item in question, and that Reid at this point announced free beer and invited the employees to partake. Reid confirmed that Haught was at the meeting, but disclaimed any knowledge of Colleja's attend- ance, and denied that any employee at the meeting had made the remark attributed to Colleja by Haught Reid did acknowl- edge that at a Union meeting, the date of which he could not recall, an employee remarked that he understood that Re- spondent had obtained a new contract and asked how the employees could get a "better shake" from Respondent. According to Reid, he answered that the only road to better conditions was through negotiations. The record shows that on December 25, 1964, there was published in a local paper a report that during a recent week Respondent had received an order in the value of $160,000. While it appears from the evidence that any statement that Respondent had earned $160,000 in profits at any time in 1964 would have been a gross misstatement, there was no evidence that the foregoing reference to new business in the amount of $160,000 was false. Thus, if one is to credit Reid, there is no basis for finding any misrepresentation by an employee at a Union meeting. On the other hand, if one is to credit Haught, there was such a misrepresentation. Haught's credibility was seriously impaired by the fact that, when confronted with a pretrial affidavit purporting to be signed by him, and containing a denial that he ever attended any Union meeting, he acknowledged that the signature was his but vehemently denied that he had ever before seen the affidavit, which was notarized by a Board agent. Under all the circumstances, I deem incredible such denial, which implies that a Board agent tricked the witness into signing a blank sheet of paper, and then inserted the contents of the affidavit without his knowledge or consent. While, in view of Reid's corroboration of Haught on this point, I credit his testimony that he attended the Union meeting of January 19, the fact that he would swear to the contrary in his affidavit and that he would at the hearing repudiate the affidavit in such a bizarre and implausible manner precludes giving any credit to his testimony, where it is contradicted by other testimony not subject to any comparable infirmities.' i In view of this, as 50 Schwarm, Tomaleski, Boyle, Lovely, Rupert, Schimansky, and Staves Si There is no need to speculate as to the reason for Haught 's various self-contradictions. However , from the fact that the affidavit contains a denial that Haught made any statement about Respondent 's profits at a Union meeting, it is inferred that his concern at the time of making the affidavit was to exonerate himself of the charge that he had played the role which, subsequently , at the hearing he attributed to Colleja. and Haught 's denial of attendance at any Union meeting was incidental to this self-exculpatory purpose ORTRONIX, INC 395 well as demeanor, I credit Reid's denial that any employee at a Union meeting made the remark attributed by Haught to Colleja 52 In view of all the foregoing considerations, and since, as already stated, it is clear that none of the alleged, or actual, misrepresentations discussed above related to matters within the peculiar knowledge of the Union, it is concluded that there is no merit in the fourth oblectlon.53 As no merit has been found in any of Respondent's objections, it is concluded that the Union did not unduly interfere with freedom of choice in the second election, that its certification on the basis of such election was valid, and that Respondent's refusal on and after May 28, 1965, to recognize, or bargain with, the Union violated Section 8(a)(5) and (1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth m section III, above, occurring in connection with its operations described in section 1, 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 thereof V THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described below. It will therefore be recommended that the Respondent bargain collectively upon request with the Union as the exclusive representative of these employees and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Ortronix, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Sheet Metal Workers' International Association, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Ortronix, Inc., at its Orlando, Florida, plant, including sheet metal assemblers, sheet metal assemblers senior, carpenters, welders, machine operatois, sheet metal mechanics, machinists, painters, jig and fixture mechanics, electrical assemblers, wiremen, material handlers, test technicians, maintenance technicians, stock clerks, shipping and receiving clerks, ware- housemen, drivers, inspectors and timekeeper, excluding all other employees, including office clerical employees, profes- sional employees (including engineers), technical employees (including electronic technicians and draftsmen) and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On May 17, 1965, and at all times thereafter, the Union was and now is the representative of a majority of the Respondent's employees in the appropriate unit described above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on May 28, 1965, and thereafter to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that Ortronix, Inc., Orlando, Florida, its officers, agents, successors, and assigns, shall be required to. 1. Cease and desist from refusing to bargain collectively with Sheet Metal Workers' International Association, AFL- CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) On request, bargain collectively with Sheet Metal Workers' International Association, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and embody any understanding reached in a signed contract. (b) Post at its place of business in Orlando, Florida, the notice attached hereto and marked "Appendix."54 Copies of said notice, to be furnished by the Regional Director for Region 12, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material 52 In any case, even if one were to credit Haught's version, it is not clear how the Union could be held responsible for a remark made at a Union meeting by one in attendance , which merely purported to report a news item Respondent seems to contend that, by not disclaiming responsibility for the remark, even though not made by an agent or apparent agent of the Union, it impliedly adopted or ratified the remark. No authority for such a proposition is cited and I am aware of none. See Cornveau & Routhier Cement Block, Inc., 171 NLRB No. 113 53 Respondent 's fifth objection alleges- That the Petitioner [ Union] through promise of benefit and through action threatened , coerced and restrained the employees of the Employer by statements and conduct and thereby prevented the employees from exercising their free and untrammeled choice in the election. At the hearing, Respondent stated that it would offer no evidence with regard to this objection , and, absent such evidence , there is no basis for sustaining this objection 54 If this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "Recom- mended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals enforcing an order" shalt be substituted for the words "a Decision and Order." 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith.55 55 In the event that are adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from the date of receipt of this Order what steps the Company has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended we hereby notify our employees that: WE WILL bargain collectively upon request with Sheet Metal Workers' International Association, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is. All production and maintenance employees at our Orlando, Florida, plant, including sheet metal assem- blers, sheet metal assemblers senior, carpenters, welders, machine operators, sheet metal mechanics, machinists, painters, jig and fixture mechanics, electrical assemblers, wiremen, material handlers, test technicians, mainte- nance technicians, stock clerks, shipping and receiving clerks, warehousemen, drivers, inspectors and time- keepers; excluding, all other employees, including office clerical employees, professional employees (including engineers), technical employees (including electronic technicians and draftsmen) and supervisors as defined in the Act. ORTRONIX, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Bldg., 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711,Ext 257.