Essex Wire Corp.

ESSEX WIRE CORP. Essex Wire Corporation and International Union, United Automobile, Aerospace and Agriculture Implement Workers of America (UAW). Cases 7- CA-6931, 7-CA-7085, and 7- RC-9027 February 5, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 30, 1970, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to such alleged violations. Finally, the Trial Examiner found that cer- tain conduct of Respondent after the petition in Case 7-RC-9027 was filed interfered with the election and recommended that the election be set aside. As he recommended a bargaining order issue to remedy the unfair labor practices, the Trial Examiner further re- commended that the petition in the representation proceeding be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross- exceptions and a brief in support of the Trial Examiner's Decision, while the Charging Party filed a brief in answer to the Respondent's exceptions and statement adopting the General Counsel's cross-ex- ceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below? i The Charging Party also filed motion to strike the Respondent's excep- tions. The Respondent filed an answer in opposition. The Charging Party's motion is hereby denied as the matters relied upon are insufficient to warrent dismissal of the exceptions. In its answer in opposition the Respondent requested leave to correct a typographical error in its exceptions. No party ooses such correction. The request is granted. As we have ve adopted the Trial Examiner's findings with respect to the validity of the Union's authorization cards, we do not pass on the General 397 We agree that the Respondent violated the Act as found by the Trial Examiner 3 and further agree that its unlawful conduct warrants and requires the is- suance of a bargaining order to remedy effectively that conduct. However, contrary to the Trial Examin- er, we find that the Respondent also violated the Act in the following manner: (1) By Supervisors Kolarovic, Smith, Timmons, and Personnel Manager Shields questioning employees concerning their wearing union buttons; (2) By Smith and Shields asking employees Bailey and Williams respectively why they wanted a union; (3) By Ford, a company officer, asking employees Fisher and Williams on the day of the election if they would vote for him and stating on an earlier date to employee Rodebaugh that he, Ford, did not believe Rodebaugh had signed up with the Union; and (4) By Plant Manager Edington asking employee Fisher on the day of the election if she were with him. All of the foregoing constitute either direct or indi- rect probing into the employees' reasons for support- ing the Union or inquiries whether or not they supported the Union or intended to vote for it in the election. No justification has been shown for such inquiries. Accordingly, we find that Respondent, by the above interrogation of its employees concerning their union activities, engaged in conduct tending to coerce its employees in the free exercise of their rights protected by the Act and, thereby, violated Section 8(a)(1).4 We also find that such conduct, as it occurred after the filing of the petition, warrents setting aside the election and additionally supports the conclusion that a full and proper remedy in this proceeding re- quires the issuance of a bargaining order. We cannot agree with our dissenting colleague that the Board should not enter a bargaining order in this case on the ground that the Union's proven majority was not large enough and on the inference that some of its valid cards, despite the absence of any evidence of their invalidity, must have been obtained through misrepresentation. Here, as in United Packing Compa- ny, 187 NLRB No. 132, our colleague has taken a position contrary to the holding of the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575. There the Court held that (1) authorization cards Counsel's exceptions to the Trial Examiner's findings of invalidity with re- spect to six cards for such cards cannot affect the Union's majority status 3 However, we do not agree with the Trial Examiner's finding that the Respondent violated Section 8(a)(l) by misstating certain union wage gains in its August 20 handbill Neither do we find that such conduct in the circumstances here is objectionable election conduct under Hollywood Ce- ramics Company, Inc., 140 NLRB 221. The Company's handbill was a reply to one previously circulated by the Union Both involved regrettable inaccu- racies But where, as here , each party had an opportunity to present its (inaccurate) argument, we are unwilling to conclude that the employees were so unable to evaluate the issue presented that on the basis of the mutual inaccuracies the election should be set aside. 4 See e.g , Avondale Shipyards, Inc., 162 NLRB 421, Laney Tank Lines, 166 NLRB 1053, 1060, Marsh Supermarkets, Inc, 140 NLRB 899, 901 188 NLRB No. 59 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "may be the most effective-perhaps the only way of assuring employee choice" where the employer has engaged in conduct disruptive of the election process, N.L.R.B. v. Gissel, supra at 602; and (2) a bargaining order is warranted where, as here, an employer has engaged in conduct which has a tendency to under- mine the union's majority and impede the election process. N.L.R.B. v. Gissel, supra at 614. Apparently, our colleague would apply the Gissel rule as to bar- gaining orders only where, as suggested by the Fourth Circuit, an employer has engaged in "outrageous" and "pervasive" unfair labor practices. Such a limita- tion on the Board's authority to order bargaining was specifically rejected by the Supreme Court in Gissel, where the Fourth Circuit's contrary opinion was rev- ersed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Essex Wire Cor- poration,Traverse City, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 1(d) and substitute therefor the following: "(d) Interrogating employees directly or indirectly concerning their wearing union buttons, their reasons for supporting the Union, and their voting inten- tions." 2. In footnote 32 of the Trial Examiner's Decision substitute "20" for "10" days. 3. Substitute the attached Appendix for the Trial Examiner's Appendix. CHAIRMAN MILLER, concurring in part and dissenting in part: We are called upon to conduct a post mortem exam- ination of an unsuccessful union organizing campaign which was expertly conducted and vigorously contest- ed on both sides. I agree with my colleagues that the General Counsel has proved that the Respondent en- gaged in conduct which violated Section 8(a)(1) of the Act and which justifies setting aside the election.' I disagree, however, in two particulars: 1. The majority adopts the finding of the Trial Ex- aminer, which I would disavow, that certain state- ments by Respondent's representatives concerning potentially adverse consequences of union represent- 5 However, like the majority, and for the reasons they advance, I would not find that the inaccurate handbill distributed by the Respondent on August 20 constituted in the circumstances a violation of Section 8(a)(1) or objection- able preelection conduct ation were prohibited by the statute. 2. The majority holds, and I disagree, that this is an appropriate case for entry of a remedial order to bar- gain under N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. 1. The statements of potential economic consequences The majority hold that the statements by two super- visors and a speech by the plant manager constituted threats of reprisal and of loss of benefits and thus violated Section 8(a) (1). As to the supervisors, the record reveals the subject matter of a series of discus- sions between Supervisor Dunfee and three employ- ees, and of several conversations between Supervisor Morgan and one employee. Those conversations and the plant manager's speech appear to have involved substantially the same issues. The tenor of the conver- sations and of the plant manager's speech is reflected by the Trial Examiner's summary of Dunfee's testi- mony: According to Dunfee, his conversations with em- ployees under his supervision as to the conse- quences of unionization were only in terms of possibilities. Never did he admit to saying that the Company would not negotiate, that it would close the plant, or that it would discharge em- ployees. He would reiterate, however, to those " with whom he spoke, that the Company, which was a large supplier of turn-signals to both Ford and Chrysler, had to keep them satisfied, that customers would be concerned about a strike if the Union gained representation rights, and would not want to keep all their eggs in one bas- ket. If a strike occurred, there was a possibility of loss of jobs, and even if there were only a possi- bility of a strike, the Company might lose con- tracts which would necessitate layoffs. Emphasizing the possible consequences of a loss of business, Dunfee told employees that the Company could move its plant in a matter of days, that he knew of a large plant that had moved over a weekend. With respect to negotiations, he said that ev- erything was negotiable, the parties would start from the word go, that it was possible that all their benefits would be out, and that negotiations would go on from there or from the minimum wage. He also testified that he told employees that at the bargaining table everything was give and take, that bargaining normally starts out with the existing benefits but there was a possibil- ity of losing some in order to gain others. He denied telling Smith that Ford would not nego- tiate, but he discussed things that Ford could ESSEX WIRE CORP. 399 possibly do. Since Don Ford, he said, would probably be a hard man to negotiate with, bar- gaining might take months. The four employees involved in the conversations testified, variously, that the supervisors' statements were communicated as -unconditional statements rather than as predictions of possible consequences. There is similar employee testimony as to Ford's speech. My colleagues, like the Trial ,Examiner, de- cline to resolve the conflicts as to what vas said and instead hold that the statements were coercive in ei- ther version. I am compelled to disagree. To be sure, discussions of possible strikes and the uncertainties of collective bargaining are likely to stir strong emotions and may easily become the occasion for coercive statements. I agree that one who undertakes to speak about such issues must choose his words with care. We impose that burden of care in order that there may be some communication about matters of sharp dispute and vital concern. Yet Dunfee's testimony indicates that he chose his words with care and, if he is to be be- lieved, I cannot say that he violated the Act. Nor am I willing to say, in this case, that the statute prohibited the reiteration of these ideas by another supervisor and by the plant manager during a speech. This case well illustrates the difficulties which the Board faces in judging the propriety of campaign statements. If Dunfee's statements to the employees were as described by the employees, then I would join the majority in finding them impermissible under the Act. But I am unwilling to decide that campaign state- ments are prohibited by the Act without careful scru- tiny, initially, of the statements which were actually made. I would expect the Trial Examiner and the Board to determine, as accurately as the record al- lows, what was said. Only then can we decide whether the words used could reasonably have had a coercive impact on the hearers . I am emphatically unwilling to hold, as the majority appears to do, that the issues which Dunfee raised (or responded to) may be dis- cussed only in terms which are incapable of misun- derstanding by any listener, however timorous or sug- gestible, or must not be discussed at all. That is a standard which silences debate and diverts us from our statutory goal of fostering rational self-determina- tion. 2. The appropriate remedy gain with the Union. In evaluating the appropriate- ness of that remedy it is well to note that this record does not disclose the genre of employer conduct which normally attends such an order. It is not alleged that any employee's employment has been adversely af- fected in violation of Section 8(a)(3), and the exten- sive record contains no proof of any incident which might give rise to any such allegation. Nor is this a case where the employer effectively undercut the union's support by promising to remedy, or reme- dying, sources of employee discontent upon which the union had based its campaing. Compare United Pack- ing Co., 187 NLRB No. 132. Finally, we do not deal with a respondent whose record before this Board, either generally or in this case particularly, permits us to conclude that there is any likelihood that objection- able conduct or unfair labor practices would recur during a second election following entry of a more traditional remedial order. Indeed, the record would lead one to the contrary conclusion. At best then this case seems, if the majority be correct, to occupy that irreducible minimum ground marked out by the Court in Gissel; it is indeed a "less extraordinary" case, and is "marked by less prevasive practices, " supra at 614. Gissel authorizes a remedial bargain order in such a case because "effectuating ascertainable employee free choice becomes as impor- tant a goal as deterring employer misbehavior." Yet, even if I could agree with the majority that Respondent's "less pervasive" practices "nevertheless still have the tendency to undermine majority strength and impede the election processes," supra at 614, I would hesitate to enter an order to bargain. I do not find, under all the circumstances here that the Union's authorization cards afford us an especially reliable measure of employee desires and I would expect an election to be considerably more representative of those desires, if properly conducted. To avoid further protracting this opinion, I simply outline the circum- stances which make me less than confident that we have, on this record, any reliable evidence of employ- ee desires: 1. Accepting as valid all the cards tendered, the Charging Party enjoyed a slender majority of only 189 in a unit of 345. 2. If one discounts 7 cards solicited after recogni- tion was denied, and 7 others which the Trial Examin- er seems properly to have invalidated, the putative majority shrinks to 175 of 345, only 2 in excess of a bare numerical majority. 3. Five of the seven cards invalidated by the Trial Examiner were demonstrably obtained by misrepre- The majority invokes the authority of N.L.R.B. v. sentations as to their purpose. It taxes credulity that Gissel Packing Co., 395 U.S. 575, to sustain a remedial there were not at least a handful more which were so order directing the Respondent to recognize and bar- obtained but as to which no proof was available. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Seven other cards (those of Barber, Clous, Lam- bert, Newman, Patterson, Welsh, and Wisniewski) were solicited under circumstances which in varying measure jeopardize their validity under Cumberland Shoe Corp., 144 NLRB 1268, and substantially impair their evidentiary value as an indicator of employee desires. In summary, I am unable to conclude that, on bal- ance, employee sentiment would be better protected by a bargaining order than by a second secret ballot election conducted after a period of compliance with the provision of a standard remedial order. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that their selection of International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other union would lead to strikes , loss of contracts or custom- ers, removal of plant equipment, and loss of jobs. WE WILL NOT threaten our employees that con- tract negotiations with the Union would start from a lower base than our present level of wages and benefits. WE WILL NOT promise our employees benefits in the form of a "surprise package" if the Union is not selected as their bargaining representative. WE WILL NOT question our employees about wearing union buttons, or about why they want a union, or if they intend to vote for, or support, us in any representation election. WE WILL NOT misrepresent the cost to our pre- sent employees of union dues and initiation fees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activi- ties. WE WILL upon request, recognize and bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the collective-bargaining agent of the employees in the appropriate unit of our plant at Traverse City, Michigan. The unit includes: All production and maintenance employees, excluding truckdrivers, office clerical and plant clerical employees, technical, engi- neering and confidential employees, super- visors, professional employees and guards as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, ex- cept that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. Dated ESSEX WIRE CORPORATION (Employer) 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 compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313- 226-3200. TRIAL EXAMINER'S DECISION and REPORT ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: This consolidated pro- ceeding arises out of efforts by International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (UAW), herein called UAW or Union, to obtain recognition as the majority representative of the em- ployees of the Respondent, herein called the Employer or Company, at its plant at Traverse City, Michigan. UAW began its organizing campaign on June 6, 1968; 1 it made a demand for recognition on July 10, based on signed authorization cards allegedly received from a majori- ty of the employees m an appropriate unit; it filed a petition on July 18, after the Employer refused to accord it recogni- tion on the basis of the cards unless an impartial third party designated to check the authenticity of the signatures would also be authorized to investigate whether the signers had signed under duress, misrepresentation, or mistake as to the purpose of the card; a stipulation for certification upon 1 Unless specifically stated otherwise, all events described herein occurred in 1968 ESSEX WIRE CORP. 401 consent election was approved on August 2, and an election by secret ballot was conducted on August 21, which the Union lost. On August 28, the Union filed timely objections to conduct affecting the results of the election . On objections 3 and 5 , it filed original and amended charges in Case 7-CA-693 1, and on December 13, it filed its charge in Case 7-CA-7085. On October 29, the Regional Director for Region 7, after investigation, issued a complaint in Case 7-CA-6931 and a notice of consolidated hearing on the unfair labor practice and objection allegations. I conducted a hearing in this consolidated matter on vari- ous days between January 27 and March 13, 1969 , at Trav- erse City, Michigan2 All parties appeared at the hearing and were afforded full opportunity to participate. During the hearing, I granted motions of the General Counsel to amend the complaint in certain respects and to consolidate there with Case 7-CA-7085, which alleged as a violation of Section 8(a)(1) certain post election conduct engaged in by a company supervisor during its attorney 's investigation and preparation for the hearing. The major issues to be decided are whether a m ajority of the employees in the appropriate unit had validly designat- ed the Union as their bargaininrepresentative as of an appropriate date ; whether-some-of the cards were signed because of misrepresentation or other misconduct by the Union; whether Respondent violated Section 8(a)(1) through speeches, conversations with empployees, promises, threats, and solicitation of grievances b group leaders, foremen, and higher supervisory officials ; whether such conduct, occurring during the critical period between the filing of the petition and the holding of the election, war- rants setting the election aside ; and finally , whether on the basis of all the Respondent's conduct, an order requiring it to bargain with the Union , despite the Union's loss of the election, is warranted. Upon the entire record in this case, including my observa- tion of the witnesses , and upon consideration of the briefs filed by the General Counsel , the Company, and the Union, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Essex Wire Corporation is a Michigan corporation with its principal headquarters in Fort Wayne, Indiana. J It has a large number of plants and facilities in Michigan, Indiana, and other States, at which it is engaged in the manufacture of wire and related electrical products. Its plant at Traverse City, Michigan, is part of its Electro-Mechanical Division, which is engaged in the manufacture of switches, coils, re- lays, and related devices for the automotive industry. Dur- ing the calendar year 1967 Respondent purchased for its Traverse City plant goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to that plant from points located outside the State of Michigan. I find that Respondent is an employer engaged in commerce within the meaning of the Act. 11 THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background UAW had previously conducted an organizing campaign at the Traverse City plant which culminated in an election on May 3, 1967. The Union lost the election and the case was closed. The Traverse City plant at that time was operat- ed by Boyne Products, Inc., which also had plants at Boyne City and Atlanta, Michigan. Donald Ford was president of Boyne Products. About November 1967, Boyne Products was merged into Essex Wire, and Boyne's plants became part of the Electro-Mechanical Division of Essex Wire, which then comprised seven facilities in Michigan, Ohio, and Indiana. Ford became general manager of the Division and a vice president of Essex Wire. Thirteen months after the May 1967 election, the Union began the organizing campaign with which we are con- cerned here. It started with a distribution of campaign mate- rial, including an authorization card and a postage-paid envelope for return of the signed card. The campaign mate- rial contained arguments for unionization based on the treatment the employees had received since the last election but said nothing about a relationship between signing the enclosed card and the holding of an election. Nor did the authorization card itself mention that it had any purpose other than designation of UAW as the employees' bargain- ing representative. The card read as follows: AUTHORIZATION TO UAW Date 19 I, authorize UAW to represent print name me in collective bargaining address no . street city phone no. class of work hourly rate clock no. dept. no. shift Employed by Company address Signature of Employee 2 On April 2, 1969, after the close of the hearing , a deposition was taken from Ted Edginton, the plant manager, who had been unable to testify at the 3 Respondent's name was changed after the issuance of the complaint to hearing because of illness. Essex International, Inc. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the time of the first UAW meeting, June 17, about 70 signed cards had been returned in the mail. (G.C. Exh. 219). By July 1, about 70 employees had also authorized UAW to advise the Company that they had joined an in-plant organizing committee. Many of them wore UAW badges of various kinds, and a number of them were active in passing out cards, either to be returned directly to them or to be mailed to the Grand Rapids Office of Schultze, the UAW International representative who was in charge of the cam- paign. Some solicitors limited themselves to passing out cards only to those who would accept them, while others were more active in trying to persuade fellow employees to sign. The card-signing campaign was practically over by July 10, when Schultze wrote the Company that a majority of the employees had signed up and requested bargaining. Solicitation of cards was limited to the employees' non- work time, but conversation about the advantages or disad- vantages of unionization was apparently widespread. About 190 cards were eventually submitted to the Board to sustain the UAW's bargaining demands, and of these the employer challenged more than 60 on various grounds of mistake, invalidity, and misrepresentation. The matter will be dis- cussed in detail later, but for my present purpose of touch- ing on the issues presented, it is enough to say that about 173 valid cards would constitute a majority. An election was held on August 21, which UAW lost by a vote of 106 to 180. The complaint alleges various forms of violations of Sec- tion 8(a)(1) committed by a number of foremen and higher plant officials occurring during the months of June, July, and August, as well as a violation of Section 8(a)(5) based on Respondent's refusal to accord recognition to UAW even though it had no good-faith doubt of the Union's majority.4 B. Paragraph 10(a)-Dunfee George Dunfee was foreman of a department consisting of about 45 employees. Paragraph 10(a) of the complaint alleges that during July and August Dunfee coercively inter- rogated employees about their union activities and sympa- thies, and threatened them with layoffs, loss of jobs, and loss of benefits if the Union was selected. Dunfee, who was no longer employed by Respondent at the time of the hearing, testified on Respondent's behalf, while the witnesses for the General Counsel on conversations with Dunfee were three employees under his supervision, Nedra Smith, Ruth Fish- er, and Jean Williams. Smith and Fisher would frequently meet at Dunfee's desk during lunch and coffee breaks for conversation with him, and during July and August a recurring topic was the Union's organizing campaign, its meaning for the employ- ees, and the possible effects on their conditions of employ- ment if the Union Succeeded in gaining recognition. Dunfee consistently accentuated the negative aspects of what un- ionization could mean to the employees. The possibility of a strike, replacement of employees and consequent loss of their jobs, the loss of company contracts with ensuing lay offs, the moving of equipment and machinery out of the plant, the difficulties to be expected with vice president Ford as the negotiator on the Company's side, and the fact that negotiations would not necessarily end up at the pres- ent level of benefits, were all points which Dunfee dwelled on in his conversations with Smith, Williams, and Fisher. 4 The Supreme Court's decision in Gissel Packing Company, 395 U S 575, was issued after this case was tried and after briefs were submitted to me Matters litigated at the hearing and argued in the briefs concerning Respondent's good-faith doubt and the subjective intent of the card signers are thus now largely irrelevant under the holdings of that Decision According to Dunfee himself , much of what he told them he also told other women in his department.5 Smith and Williams particularly questioned him, expressed doubts, and argued with him about what could be expected from unionization, but Dunfee, although sometimes seeming to joke, always took the opportunity to express his forebodings about the advent of the Union. More specifically , Nedra Smith testified that Dunfee told her that Don Ford was a hard man to deal with ; negotia- tions would be difficult with him ; there would be a strike regardless of what the employees wanted ; the Ford Motor line would be closed ; or they would lose the Ford contract if there was a strike and the strikers would be replaced. At other times, he told her that in negotiating for a contract they would lose their present benefits and their wages would go down to the federal minimum . Jean Williams corroborat- ed Smith's testimony as to much of what Dunfee had told her. Ruth Fisher's testimony was not as detailed but she did corroborate the other two that Dunfee had told her that if the Union got in they would have to strike and that negotia- tions would not go smoothl ; that the plant might lose its Ford contract, causing layoffs ; and that the whole Ford line could fit into one of the Company's other plants. According to Dunfee, his conversations with employees under his supervision as to the consequences of unioniza- tion were only in terms of possibilities. Never did he admit to saying that the Company would not negotiate , it would close the plant, or it would discharge employees. He would reiterate, However, to those with whom he spoke that the Company, which was a large supplier of turn-signals to both Ford and Chrysler, had to keep them satisfied , and that customers would be concerned about a strike if the Union gained representation rights and would not want to keep all their eggs in one basket. If a strike occurred , there was a possibility of loss of jobs , and even if there were only a possibility of a strike , the Company might lose contracts which would necessitate layoffs. Emphasizing the possible consequences of a loss of business, Dunfee told employees that the Company could move its plant in a matter of days, that he knew of a large plant that had moved over a week- end. With respect to negotiations, he said that everything was negotiable, the parties would start from the word go, that it was possible that all their benefits would be out, and that negotiations would go on from there or from the minimum wage. He also testified that he told employees that at the bargaining table everything was give and take , that bargain- ing normally starts out with the existing benefits but there was a possibility of losing some in order to gain others. He denied telling Smith that Ford would not negotiate, but he discussed things that Ford could possibly do. Since Don Ford, he said, would probably be a hard man to negotiate with, bargaining might take months. C. Paragraph 10(b)-Morgan Edwina Inman's testimony concerns her conversations about the Union with her foreman, Geor a Moran, the supervisor on the turn-signal switch line for GMC. Only Inman testified about such conversations with Morgan, al- though he also talked to others of the 50 or so employees whom he supervised. Inman testified that Morgan had told her that if the Union got in it was a possibility that depart- ments could be moved or the plant shut down; that before 5 During the period of the campaign, Dunfee was in charge, on the day shift, of assembling and testing directional signals on the Ford Motor Com- pany line ESSEX WIRE CORP. the Company would let the Union get in it could move the plant or shut it down; that in negotiating wages they would start at the bottom and not at the level the employees were already receiving; and that a customer of the Company might not want to buy from a plant with a Union shop. It seems to have been assumed by both Inman and Morgan that the Company was the sole supplier of Chrysler's turn- signal switches and again, as in the case of Dunfee, there were remarks and hints that a customer would not want "to keep its eggs in one basket" and might therefore end its reliance on the Company if there was any possibility of a strike. This is made evident too from Morgan's testimony that there was a possibility (with specific reference to Chrys- ler) that an election or negotiations with a union, or a strike, might cause customers to reduce their purchases and to shift to other suppliers. Morgan also said that he had told Inman that the Company's handbook, setting out its policy and rules on employee relations matters, would not be in effect if the Union got in, and that everything would have to be bar- gained for "from there up again." Morgan made this point again after an employee meeting shortly before the election at which Don Ford had thrown the employee handbook over his shoulder, by telling Inman that Ford meant that everything was negotiable. Morgan denied ever telling In- man that Ford had said he could move some of the machin- ery out if the Union got in. Conclusions as to Dunfee and Morgan I find no differences in substance between the testimony of the witnesses for the General Counsel and that of Dunfee and Morgan. What differences there are, it seems to me, are as to the degree of specificity in which Dunfee and Morgan phrased their observations, so that even taking their testi- mony as wholly accurate, they were saying that unioniza- tion could only lead to long drawn-out negotiations from a lower base than at present, that customers would withdraw orders even if there was only a possibility of a strike, and that when the inevitable strike occurred, there would be a loss of jobs. Continued emphasis by supervisors on such possibilities, in the event of unionization, as strikes, removal of equip- ment, loss of orders,and consequent loss of jobs are under- stood by employees as probable rather than as remotely contingent. Nice distinctions between probability and pos- sibility are not understood by employees to whom all talk of loss of jobs is taken as a personal threat. The predictions of Dunfee and Morgan as to the effects of unionization were not based on any objective considerations regarding the Company's customers (all of whom in the automotive indus- try and therefore knowledgeable about the Union) but on unwarranted assumptions equating union representation with an inevitable strike, loss of contracts and jobs. I there- fore conclude that Dunfee's and Morgan's dwelling on the possible effects of unionization were in fact threats of repris- al and loss of benefits rather than objective predictions, and as such violated Section 8(a)(l) 6 D. Paragraph 10(b) and 10(1)-Kolarovic Kolarovic is a young man who appeared to be in his early 20's. His classification was setup man with a leader rate of 6 The Sinclair Company, 164 NLRB 261, enfd 397 F 2d 357 (C A 1), and sub nom N L R B v Gissel Packing Co, 395 U S 575 See also cases cited in fn 9 of the Trial Examiner's Decision in Sinclair, cited above, and N L R.B v C J Pearson Co, 420 F 2d 695, (C A 1), enfg 173 NLRB 1469 403 20 cents per hour over the setup rate . Neither setup men nor leaders are supervisors merely by virtue of their classifica- tion, but the General Counsel contends that Kolarovic's duties during the period involved here establish his supervi- sory status and that his statements or conduct toward cer- tain employees violated Section 8(a)(1). During June, July, and August. Kolarovic was in charge of the bonding department on the night shift which em- ployed 25 to 30 women. He supplied them with material, kept the machines adjusted, removed production parts as they were completed , and took production readings from machine counters . He received daily written instructions from the day-shift foreman of the bonding department and he was under the direct supervision of the one night-shift foreman. His written instructions told him what machines and operations to run and for how long. Although he was permitted to wear a white shirt on duty, which only foremen wore, it was under rather special circumstances and would not in itself establish a supervisory status for him. However, employees not knowing of these circumstances would tend to equate the white shirt with supervision, and in fact Kola- rovic told at least one employee that he was her foreman. Many of the women in the bonding department on the night shift could perform more than one of the various types of operations. Within the limits of the instructions given him as to which operations were to be performed and for how long, Kolarovic could and did exercise discretion and judg- ment as to the women to assign to the various operations. He could switch them between operations, decide whether he had too many for his needs, transfer them to the night- shift foreman for reassignment, and was, in short, reapon, sible for making efficient use of a substantial complement of employees . I find that Kolarovic exercised responsible judgment in making work assignments and was for that reason a supervisor. Norman Priest, a day-shift janitor, testified that he was lowering the flag in front of the plant about 3:15 p .m. a few weeks before the election, when Kolarovic asked him how come he was still wearing his union button. Priest said it was because he wanted to and, according to Priest, Kolarovic then said it was up to Priest to decide. Kolarovic denied that any such incident had ever happened. Since Kolarovic was then on the night shift which started at 4 p .m., Priest's story would mean that Kolarovic was at the plant at half hour or more early. Such an early apear- ance is understandable in the case of a young and eager supervisor. I think on the whole that it is more likely than not that the incident described by Priest actually happened and I therefore credit Priest . However, the inquiry as to why he was wearing a union button does not seem to me, in the absence of any further significant conversation , to have been coercive. I find no violation in Kolarovic's inquiry of Priest. Late in July, Kolarovic also spoke to Leila Rosenburg, an employee in the bonding department. He told her that the Company was the exclusive supplier of a particular part for Chrysler and that, if the employees happened to go on strike and could not produce that part, it would lose its Chrysler contract. This is a legitimate prediction of economic conse- quences, free from any implication that union representa- tion of itself would make a strike inevitable , to be followed by a loss of contract and jobs. It is thus markedly different from Dunfee's and Morgan's linking the employees' choice of a union with a following strike , either because the Union would force one on the employees, or because Ford would make negotiations altogether futile. During the same period, Kolarovic selected three employ- ees in his department for special attention because he thought they were prounion. These were Rosenburg, Onalee DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kietzman, and Emily Dillon. He either read, or had them read to themselves, certain sections of the UAW consti- tution which provide that attempts to decertify the union might subject members engaged in such conduct to a fine of not more than $100.7 He also gave them an article from Reader's Digest for August 1968, entitled "Let's Enforce Our Labor Laws Fairly." The substance and tone of the article are fairly summarized by the editor's own three sen- tence digest preceding the article, designed for those readers for whom the article itself might be too long or too difficult. It reads as follows: Unions have rights. So does management and the individual worker himself. But the National Labor Rel- ations Board, in judging between them, displays such flagrant bias that our free-bargaining system is serious- ly threatened. This also seems to me to be legitimate comment on the part of Kolarovic and the Company. The employees could read the Union's constitutional provision permitting fines for attempts to decertify it and the magazine article and decide for themselves whether their impact was sufficient to outweigh their desire to have the Union represent them. Calling the attention of employees to this type of material is protected by Section 8(c) of the Act, when not accompa- nied as it was not here, by any threat of reprisal or promise of benefit. E. Paragraph 10(c)-Smith Delbert Smith was supervisor of the maintenance depart- ment where Norman Priest worked as a janitor. About a week before the election, as Priest was sweeping up near Smith's desk, Smith asked him when he was going to take off his union button. Priest said he would in about a week. According to Priest, Smith then called him over to his desk and asked him why he wanted the Union, that Mr. Ford had such a good package deal that he didn't see why the employ- ees would even want the Union. Priest said he asked him to explain some of these deals, but Smith said he couldn't. Smith denied that he mentioned a "package deal" but ad- mitted that he had asked Priest on this one occasion why he wanted the Union, that they had gotten a raise every year in the past and would probably get one in the future. Even assuming that Priest's recollection was better than Smith's, and Smith had mentioned Ford's "package deals" as a reason why the employees should not want or need a Union, I find no intimation of a promise of benefits in the remark. In view of the wage increase given less than 2 months before, I regard Smith's reference as having been to that increase rather than to something to be awarded in the future conditioned on the Union's defeat. As for Smith's interrogation of Priest about when he was going to take off his union button and why he wanted the Union, it does not, under the circumstances, strike me as coercive. I find no merit in the allegations of the complaint regarding alleged violations of Section 8(a)(l) by Smith. F. Paragraph 10(d)-Timmons Albert Bailey, a senior inspector, testified that his supervi- sor, Bill Timmons, called him into his office one day about 7 Kietzman testified that Kolarovic also told her that anyone trying to get rid of the Union might be subject to imprisonment as well as a fine I think her recollection played her false in this instance I credit Kolarovic's denial that he mentioned imprisonment to Ktetzman as a possible penalty for attempting to decertify the Union 8 It had been the Company's practice for the past few years to grant a the middle of July and asked him why he was wearing a union button and what his beef was . According to Bailey, he was in Timmons' office about an hour discussing the union situation, and Timmons had told him that the Company's contracts with its customers provided that they could in effect cancel part of them if a union came in or there was a strike . Bailey also testified that Timmons told him the Company's plant at Zanesville had enough room to hold the entire Traverse City plant if it wanted to move. Timmons' version is that he called Bailey into the office of Dave Nighbert, the assistant plant superintendent, to discuss a falling off in the quality and quantity of Bailey's work. When Bailey walked in he was wearing a number of union buttons and badges , and Timmons admitted that he said to him, "Al, I notice you are wearing a union button," to which Bailey responded that it was none of Timmons' business. According to Timmons, he had called Bailey in about his work performance 6 months before, when Bailey had an unsatisfied grievance about call -in pay, after which his work had improved for a time. On this occasion, Tim- mons thought there might be some similar reason for Bailey's attitude toward his work and thus asked him what was bothering him. Bailey said, according to Timmons, that there was nothing wrong , and Timmons then discussed his work with him for about 15 minutes , during which Bailey said he would try to do better. Timmons also testified that on two other occasions, when Bailey was not present, he had talked about the effects of the Union on employment with employees in his depart- ment, and that in response to their queries he had said that if the Union got in and there was a strike , it was possible that the Company would lose some of its business, or would have to move part of its production to other plants.9 Many of the in-plant organizing committee, including Bailey, openly revealed their union sympathies by wearing a profusion of buttons and badges at work. Comments by supervisors on what organizers meant to be obvious does not seem to me to be coercive interrogation , and I therefore find that even if Timmons asked Bailey , as Bailey testified, why he was wearing a union button the inquiry was not coercive. Although Timmons denied that his further conversation with Bailey included a discussion about the Union, he ad- mitted saying to other employees just about what Bailey testified Timmons had told him. As was also true of Dunfee and Morgan, Timmons was associating the advent of the Union with possible economic consequences to the employ- ee, and although he did not say directly that union repre- sentation would inevitably lead to strikes, loss of business, and employee layoffs at the Traverse City plant, the close connection between the two sets of circumstances was clear- ly drawn. AlthouTimmons may have wanted to empha- size only that these were possible consequences, their juxtaposition would necessarily leave his auditors the im- pression that the coming of the Union would, more proba- bly than not, lead to the loss of jobs. general wage increase as of July 1 It had done so in 1968, after an announce- ment early in June Neither the announcement nor the grant of the wage increase in 1968 is alleged to be a violation 9 On cross-examination by the General Counsel , Timmons assented to a leading question that it was possible that he had said that customers would take some of their orders out of the plant if the Union got in However, on later cross-examination by the Charging Party, Timmons denied that his statement as to possibility was based on the Union's coming in, but only on whether it called a strike I find that what Timmons said is what I have set out in the text above ESSEX WIRE CORP. G. Paragraph 10(e)-- Wood Myrtle Tompkins, an employee in the wire department, testified that a week or two before the election, her supervi- sor, Stanley Wood, told a group of women, 10 in answer to a question, that if the Union went to the bargaining table the employees would go back to $1.60, and that is where they would start from. Tompkins said that in making this remark Wood had referred to a little black book which Respondent's attorney had prepared for supervisors on what they could and could not say to employees about the Union. Wood acknowledged having received such a booklet but said he had never referred to it or used it at work. He denied generally ever discussing the Union with employees and specifically denied that he had ever told any employees what Tompkins had testified to. Hackett testified that she had not worked the 2 weeks preceding the election, and denied that Wood had discussed the Union with any group which included her anytime during the organizing cam- paign. Gotheir, Anderson, and Vandervort uniformly de- nied that Wood had ever mentioned the Union, bargaining or going down to the minimum wage of $1.60. Although Tompkins impressed me generally as a credible witness, I must assume in the face of such overwhelming contra- diction by all whom she claimed to be in the group that she was in this instance mistaken. I therefore credit Wood on this matter and find that the allegations in the complaint regarding him have not been proved. H. Paragraph 10(f)-Shields 1. Interrogation Jerry Shields, personnel manager for the Electro-Me- chanical Division has his office in Detroit and visits the Division's plants on a regular basis. Normally, he would be at Traverse City 2 days every 2 weeks. Paragraph 10(f) alleges that Shields coercively interrogated employees about their union sympathies andsolicited grievances which he then promised to rectify to dissuade them from selecting the Union. The employee handbook provided for an informal oral grievance procedure of which Shields was a part, and his tours of the plant served to elicit from employees whatever they wanted to talk about with him. Shields was at Traverse City the day after the Union's first organizing committee meeting, early in June, and during the morning break period he stopped to talk to Nedra Smith and Jean Williams, both of whom were wearing union badges. In the union cam- paign the year before, Williams had been actively antiunion while Smith was neutral, and their open change of attitude prompted Shields to talk to them. Shields expressed his surprise, and said, according to Williams, "What's that for?" Williams answered that she thought the employees needed a union. Shields then said, "I never thought I'd see the day that you would wear that button, why do you think you need a union?" Williams then proceeded to tell him why, in some detail with particular emphasis on the recent Memorial Day Holiday when overtime had been given to newly hired women instead of to employees with more sen- iority. Shields said he would check into it. Shields' testimony is not substantially different, except that he recalled the two conversations as being separate but 10 Herself, Hackett, Gotheir, Anderson, Vandervort, and Mabel Miller. No Mabel Miller is listed on the Employer 's Excelsior list (G.C. Exh. 2-A). It is probably a transcript error for Mabel Middaugh who testified before Tomp- kins did. Middaugh was not asked about any discussions with Wood. 405 with one immediately following the other and with Smith also bringing up the Memorial Day matter. Late in June, on another visit at the plant, Shields ex- pressed surprise to Inman at her work station that so many girls in her area were wearing union buttons. She did not repl and Shields said nothing more. These inquiries of Shields took place in work areas during his regular tours about the plant, with employees whom he knew well. They did not develop into extensive probing as to their feelings about the Union, which were in any event obvious from their wearing union badges. I find, under these circumstances, that Shields' inquiries of Smith, Wil- liams, and Inman were not coercive and were therefore not in violation of Section 8(a)(1). A few days before the election, Shields came across Priest, who was wearing a number of union buttons. Priest testified that Shields asked him what the Company had done to him to make him wear a union button. Priest said he wanted to wear them, that nobody would know how he voted, and that Shields had then said, "Thank you, that's all I wanted to know." Shields, on the other hand, testified that he started the conversation by asking Priest how Rode- baugh, another janitor, who had just quit, was doing. At the same time he was looking at Priest's display of union insig- nia and Priest said "I guess you wonder about this." Shields admitted he did, and Priest told him not to worry about it, that he could vote either way. That ended the conversation. I credit Shields' version of his conversation with Priest, and find no violation of Section 8(a)(1) in Shields' silent wonderment over Priest's display of union badges on his person. 2. Handling of grievances In July, Bailey asked for leave to attend the funeral of his aunt who had raised him in his youth. Leave was granted but he apparently did not expect to be paid for it because the employee handbook allowed paid funeral leave only for employees attending on deceased parents or other members of the immediate famil. After he returned, Carlson and Strang, strong union adherents, raised with Shields a griev- ance of their own as to whether lengthy excused absences should count as service in determining increment raises. Shields investigated, discovered that it had uniformly though mistakenly been done for other employees, and granted these two the same benefit. During one of their conferences on this matter, Strang mentioned to Shields that she had been given funeral pay on the death of her stepfather, but that Bailey had not gotten it for the death of the aunt who had been his foster mother. The next time Shields saw Bailey, he asked him about the matter, and told him that the plant rule was not inflexible where circumstances warranted it. Shields then took the matter up with the plant manager and Bailey was given 1 day's pay as funeral leave. Shields handled both these matters in the same way that he had handled similar employee problems and grievances before the advent of the Union. I find no violation of Sec- tion 8(a)(1) therein. When Jean Williams complained to Shields that women with less seniority had been given work on Memorial Day, he asked her if she had taken it up with the plant manager. She said she had, and Shields then said that maybe they could make it up to her somehow. This is neither solicitation nor rectification of that grievance. Shields had no authority to override the plant manager's determination on assign- ment of work, and he was, in my opinion, attempting to smooth over Williams' displeasure by a polite but empty assurance. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodebaugh, a janitor, had complained to Shields about not being reimbursed under the Company's sickness and accident plant for his wife's illness. Shields asked him if he had brought his medical bills into the office as the insurance plan required. Rodebaugh said he had not, and Shields then told him to do so. According to Shields, Rodebaugh never did, and wa never reimbursed. (Rodebaugh's testimony is that he did bring the receipts into the office, but, in any event, heard nothing further about the matter.) This seems to me to be the type of activity expected of a personnel manager whether or not a Union was engaged in organizing. There was nothing unusual in Shields' attempting to help Rodebaugh out by explaining to him what he had to do in order to satisfy the requirements of the sickness and acci- dent plan, and I find no violation here. Onalee Kietzman testified to what the General Counsel alleges to be another violation by Shields in soliciting and rectifying grievances. She was asked about any conversa- tions she had had with Shields and answered as follows: A. Just one day I talked to him, he was out there and the girls had been telling a bunch of things that was going on they didn't like. He said something to me about did I have any complaints and we were yaking about getting more fans in the bonding department. That's the only time I ever talked to him directly. Q. What did he say if anything? A. He just said he was aware of the problem that we did need more fans and he would see what he could do. Kietzman had reported that she became ill from the smell of the glue machines one hot night, and that she and other women iii the bonding department were con- cerned about the lack of fans. There is no evidence that new fans were immediately brought in," but even if they were, it would not prove that the Company was instituting new or imrpoved benefits in order to win the em loyees away from the Union. The Company had an obligation to treat its employees at least as well as it had in the past, even if that meant promising them some relief from the heat and the odor of the glue machines. 1. Paragraph 10 (g)-Nighbert Dave Nighbert, the assistant plant superintendent, is al- leged to have granted a benefit to Al Bailey to dissuade him from aiding the Union. This is the same individual whom Shields is alleged to have solicited a grievance from con- cerning funeral pay. Bailey had some unresolved claims for call-in pay going back to 1967. On New Year's Eve 1967 he was called in to work but was then sent home. On his next paycheck he did not receive the call-in pay due him. I-Ie complained to his foreman, and a few weeks later was paid the amount due him for New Year's Eve. Five or six months later, during the organizing campaign, he went to see Shields to ask about call-in pay claimed to be due him from the year before. It was then discovered that under the Company's call-in policy, Bailey was still owed $3.71.12 Bai- 11 There is evidence, however, that a large number of fans had previously disappeared from company premises 12 Nighbert testified that he initiated the payroll investigation after Fore- man Timmons told him that Bailey said he had call-in pay due Timmons testified that he had heard from other employees in the department that Bailey was griping that he had not been paid for some occasions when he had been called in to work ley testified that he was called into the office, where Nigh- bert in the presence of Timmons handed him his check and said he hoped Bailey was on their side. Nighbert denied he was present when Bailey was given the check or that he said anything to Bailey about it. Colbath, who was then plant accountant, said that he and his assistant, Hentz, gave Bai- ley his check and that no other company official was pres- ent. I credit Colbath's account and find that Nighbert did not give Bailey the check or say to him "I hope you are on our side now.' The following incident was fully litigated but the General Counsel does not now contend that any violation of Section 8(a)(1) was committed. I will, however, dispose of it since Respondent's brief does touch on it. Nighbert called Bailey into his office during the campaign to warn him that the union handbills which he was distributing should not be left on benches, or in tote boxes where material was gathered to be carried away. Bailey was told that he could continue to distribute union literature by handing it to individual em- ployees during his free time. The limitation imposed on Bailey's right to distribute handbills is based on legitimate considerations dealing with housekeeping in the plant and the fear that union literature, if placed in tote boxes might inadvertently be shipped out to the Company's customers. No violation of Section 8(a)(1) has been proved here. J. Paragraph 10(h)-Edginton and Ford Rodebaugh testified that he and Plant Manager Edgin- ton talked about his insurance problems shortly before the election and that Edginton had asked him why he hadn't come to see him about it. Edginton then asked him why he went for the Union. Edginton recalled having asked Rode- baugh why he was limping and that Rodebaugh had told him he had suffered an on-the-job injury. Edginton said he told Rodebaugh it would be covered by workmen's com- pensation, but denied asking Rodebaugh whether his dissat- isfaction over his insurance problem had anything to do with his being for the Union. Don Ford and Rodebaugh also conversed briefly once during the campaign. Rodebaugh had asked Ford how he was, and Ford responded that he didn't believe Rodebaugh had signed up with the Union.13 Rodebaugh then related his insurance problems as being the reason for his signing up with the Union, and Ford said that everyone was entitled to make a few mistakes. Ford could not specifically recall such a conversation with Rodebaugh but admitted that it was possible since he frequently spoke with Rodebaugh when he saw him in the plant. There were other instances of conversations between Ed- ginton and Ruth Fisher, and between Ford, Ruth Fisher, and Jean Williams. They are of the same type as those already related-a single statement or inquiry, more an in- direct solicitation of the employee's support in the forth- coming election than an investigation of how the employee stood on the union issue. Actually, of course, Edginton and Ford knew the public stance taken by Rodebaugh, Fisher, and Williams since they were wearing union buttons and had signed up for the in-plant organizing committee. I do not regard such requests for support as coercive even though phrased as an inquiry as to how the employee felt about the Union. A day or two before the election, an official of the UAW local in Traverse City who had helped in the Essex Wire Campaign prepared and had circulated to the Company 13 Rodebaugh's name had been forwarded to the Company by the Union as one of its in-plant organizers. ESSEX WIRE CORP. 407 employees a handbill (Resp. Exh. 2) which the Company regarded as misrepresenting the gains which UAW had ob- tained in contracts with organized firms in the area. The Company then prepared its own handbill (G.C. 222) comparing its own wages with those of the unionized plants, which it passed out to its employees the morning of the election. " Ford and other plant officials took the two-hand- bills out into the plant and spent a minute or so with each employee, explaining the Company's position that its wage and fringe benefit program compared favorably with that of union plants. During these conversations , the morning of the election, Ford is alleged to have promised certain em- F loyees a "surprise package." The General Counsel relies or this allegation on the testimony of Ethel Kietzman, Jane Thayer, and Sharon Root. Kietzman said that Ford showed her the Union's circular first and told her that it was "dirty pool," then showed her the company handbill and said he had a surprise package coming up. She told him he was a little late with his surprise package, and that he had said, "I realize that now." Thayer also testified that in explaining why the Company's wage rate could be favorably compared with that of union plants, Ford mentioned that the Company gave a raise every year, and then casually said that they had a surprise package in store for the coming year but that he couldn't say anything about it . Sharon Root testified that Ford included her in his conversation with Thayer , in which the value of the Company's fringe benefits had come up. Thayer asked him why they couldn 't get the 55 cents per hour, which Ford claimed the fringes were worth , in cash added to their hourly rate , and that Ford had said that that wasn't the question now, the Union was, and that he then said there was a package coming but he couldn't tell her about it. Although Root's testimony is that Ford used the work "package" instead of "surprise package," I am sat- isfied that the effect of her testimony is similar to that of Kietzman and Thayer, that Ford was implying he had in mind improvements in their total wage structure which he could not disclose to them then. Ford admitted that in making his 1 to 2 minute presenta- tions to individual employees the day of the election he used "package" to denote the Company's present total wages and frmge benefits, but he emphatically denied that he used "surprise package" since that would have implied a promise for the future and he had been warned by his counsel against making such promises. The difference in testimony between the three witnesses for the General Counsel and that of Ford is important even though it turns on the single word "suiinse' and on the meaning to be attributed to "package .' If Ford is to be believed, he was merely making the legitimate argument that the Company's "package," its total outlay for wages and fringe benefits, compared favorably with that of the unionized firms in the area . If Kietzman, Thayer, and Root are to be believed, Ford was holding out the likelihood that if the employees did not burden him with the Union, he would be able to meet their hope for a raise in wages soon. I was particularly impressed by Thayer's calm , dispassion- ate manner in testifying , and by her full recollection of her conversations with Ford . I believe that her testimony about Ford mentioning a "surprise package" casually, almost in passing, is probably how it happened . Ford impressed me as canny, quick to recognize and to seize immediately an opportunity to make a point in his favor . It would be in character for him to slip in a seemingly off-hand remark about wage improvements if the employees voted for him. I therefore credit Kietzman, Thayer, and Root and find that Ford's statements to them constituted a promise of future benefits conditioned on rejection of the Union, in violation of Section 8(a)(1). Leila Rosenburg testified that shortly before the election a fellow employee, John Miller, told her that if she wrote her name on a slip of paper and gave it to him, Don Ford would come to see her. She did, and Ford appeared to hear her complaints . Rosenburg had a longstanding grievance about not being transferred from work on the bonding ovens with its heat and odor . She told Ford that Hicks , a supervisor, had promised her that he would transfer her but had not. Ford then said to Kolarovic , her immediate supervisor, that if Hicks had made the promise he thought it should be kept but Kolarovic said nothing . Some days later, apparently after Ford had talked to Hicks , he came back to Rosenburg and told her that they were going to have to build a new bonder, but he did not even then promise that she would be taken off the old bonder . It seems to me to be small comfort from Ford, and Rosenburg also took it as such . She contin- ued to resent working on the old bonder but was not trans- ferred. I do not agree with the General Counsel that Ford's statement that he would have to build a new bonder consti- tutes a promise of benefits to Rosenburg. K. Paragraph 10(i)-Ford's Speeches Ford made three sets of speeches to the Company's as- sembled employees which have a bearing on this case, al- though one was made before the union campaign began. A few days before the Union's initial contact with the employ- ees, Ford announced a general 8-cent-per-hour wage in- crease to be effective as of July 1. A wage increase had also been given in previous years as of July 1, and the complaint does not allege that the 1968 increase was violative of the Act. In the same speech, Ford also said that a decision on whether or not the Company would sponsor an employee credit union (petitioned for by a group of employees the previous month) would be announced in a few months, after the Company completed a study of its feasibility. The two sets of speeches during the campaign were given August 14-15 and 19-20. On each of the combined dates, Ford spoke three or four times to the employees by shift, building, or department. As most of the employees worked the day shift in the main building, most of the testimony concerns that particular speech. It does not appear that the speeches made to the various groups on each particular day differed significantly. Ford spoke extemporaneously, from an outline on which he had jotted down words or phrases to remind him of points he wished to cover. What Ford said on August 14 (referred to hereafter as the first speech) was the subject of controversy, much more so than that of Au- gust 19 (the second speech), since a transcript of the second speech was made available at the hearing by the Union into =possession it had come by some unrevealed method. In the first speech, Ford made reference to a letter sent by the Union to the employees on August 12. The Union re- sponded to this speech by another letter to the employees dated August 19, which was the subject of comment by Ford in his speech of that date. In both his speeches, Ford answered written and oral questions of employees. Ford began his speech of August 14 by contrasting the position of unions in the old days when workers were ex- ploited and unions served a commendable purpose, with their status today when they are big business and their interest in people is more in terms of dollars. He mentioned that the management at this plant had themselves all in These two handbills play a part in this case and will be considered in worked in factories and understood the employee's prob- detail later on this Decision lems, that a union was not needed and could only be a 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD divisive force. He used a blackboard to compare UAW contract terms at a neighboring organized plant with the wages and fringe benefits paid at the Essex Traverse City plant. He then calculated what the Union would obtain in dues, fees, etc., from the employees at the Company's three northern plants, estimating that it would come to $225,000 over a 3-year period. He spoke about conditions at the plant, mentioning that in the past year only three employees had been terminated for cause and that he was aware of certain dissatisfactions about ventilation and heat, pointing out that 30 fans had been stolen but that replacements were on order. He jus- tified the Company's decision to allow certain new employ- ees to work on the Memorial Day holiday, and explained why the Company thought it desirable to have a single job classification -for all female employees. Ford made the point that the-Traverse City plant was the only source of supply for turn signals for Chrysler passenger cars, and that the Company's customers could become nerv- ous about a plant going union, since it then became subject to strikes; and that in such a situation they might well look for a second source of supply and if a customer did so it could result in a loss of business for the plant which would be injurious to the employees. At this time, or in response to a later question on the point, Ford said that if the plant went union and there was an impasse and a strike situation, the Company would move equipment to another location because it could not let its customers down. He said that it would be perfectly legal and he felt the employees should be aware of it. He denied saying that he would close the Traverse City plant. At some point in this speech, Ford referred to a written question passed up to him from an employee. It asked whether it was true that if the plant because union the employees would lose none of their present benefits. Ford then took the employee handbook, threw it over his shoul- der and said that everything went out the window at the time of negotiations, and that everything in the handbook was subject to negotiations except the Company's insurance plan, which was so good that a would never bargain it away. He denied saying that negotiations would start from scratch or from rock bottom. There was also a question about the credit union, and Ford referred to his June speech in which he had promised them an answer within a few months. Ford now said that the Company had come to a decision on the matter but could not announce it because of the pending election. He read from the Board's notice of election, warning against making any promises to influence employee votingg. He did say, however, that the decision already reached on the credit union would not be altered after the election, regardless of its outcome. There was also a question about what the Company was going to do about the poor condition of the employees' parkin g lot, and Ford responded that funds had already been approved for paving the lot, and that it would be done. l5 Ford also spoke about possible union demands during negotiations for a union shop (inaccurately referred to by Ford and many employees as a closed shop) and for a checkoff of union dues. Ford referr ed to another area plant by name where, according to him, the Union had engaged 15 A request to appropriate almost $10,000 for the paving job had been approved by the company president, in May 1968, but Ford had delayed its expenditure, according to his testimony, because he considered other cash requirements of his Division more important. The lot had still not been paved by the time of the hearing in this case. in a long strike solely over getting a union shop. Ford said that at the moment he did not feel he had the right to tell the employees that they would have to join the Union, unless they were 100 percent in agreement with it. He said it would be a matter for negotiation, and that he himself would not be present at negotiations which would be con- ducted by a team from the Company's Fort Wayne head- quarters. He also said that he would have to approve the negotiated contract, and if he still had strong feelings about it at the end of the negotiations but was ordered to agree to it, he might well tell the Company to get themselves a new boy. As for the Company agreeing to check off union dues, he said he did not want to be the union's bookkeeper, but that too was a subject to be negotiated, and it might well be traded off for some union concessions. Ford closed his speech by referring to the Union's letter to the employees, dated August 12. In it the Union had said that without a union, management is king. Ford asked the employees if he or Edginton, the plant manager, acted like kings and spoke about all the work he had put into the plant when he had first established it. He blamed the unions for attempting to gain their ends by fighting management and accused them of ruining businesses by their unreasonable demands. Ford then pointed out that when the plant opened it had 89 people earning $1.30 an hour and that now with employment of around 350 they were earning $1.92 per hour plus fringe benefits which he claimed were the best in the area. In view of the large number of employees attending the meeting, the general hubbub, and the employees' flagging attention, it is understandable that the testimony of witness- es for the General Counsel who heard Ford is vague and spotty as to his speech in its entirety. Everyone, however, remembered that he had thrown the employee handbook over his shoulder and the gist of what he had said then. Their recollections as to his exact words are by no means uniform, but I agree with General Counsel's brief that whether he said "everything goes out the window" or "we will start from scratch" or "we will bargain from a clean table" is not of great significance ; what is significant is whether Ford's comments, in their totality, reasonably imply that the wages and benefits presentlenjoyed by the employees would be diminished if they voted for the Union. 16 I do not credit Nedra Smith's admittedly imperfect recol- lection that Ford had said that they would go down to the minimum wage. Although it is true that Ford said in his first speech that everything was negotiable (except for the employee's insurance plan which he would not bargain away), there was a parallel emphasis that negotiations would not start from the existing level of wages and benefits. The employees who testified for the General Counsel uniformly understood Ford to mean that benefits would be lost, and although Ford, I find, did not actually say that a loss was inevitable, his action in throwing the employee handbook away spoke louder than his words. To emphasize that the rights and privileges which the employees were then enjoying would "go out the window," while at the same time saying that everything was negotiable, would reasonably mean to the employees that the Union's bargaining efforts might well be expended merely in trying to regain what the employees had before unionization. An employer need not reassure employees that their pres- ent level of benefits is the floor from which bargaining will proceed, or that unionization always brings improvements, but it seems to me that Ford's actions and words conveyed 16 Wagner Industrial Products Company, Inc, 170 NLRB 1413. ESSEX WIRE CORP. to the employees that union representation would more like- ly than not be futile in gamin them improvements in their wages or working conditions. The answer is neither easy nor simple, but it seems to me that Ford's first speech in its entirety was reasonably understood by the employees to mean that bargaining might leave them worse off than be- fore. I conclude that Ford's speeches of August 14-15 con- veyed a threat of loss of benefits , as well as a loss of employment because its customers , supposedly fearful of an inevitable strike, would seek out other possible suppliers, or because the Company would not hesitate to move equip- ment out of the plant in order to reassure its customers that their needs would be met regardless of the unionization of the plant.'? A variation of the theme that unionization would mean a loss of employment was also expressed in Ford 's second speech, August 19-20, when he referred to the company's plant at Goshen, Indiana, where wages had reached so high a level after unionization that the Company had changed the type of work performed there, and no longer employed an women at all. On specific issues such as a union shop, checkoff of union dues, classification of women by jobs or departments, and permitting married couples to work in the plant, Ford em- phasized to the employees the improbability that he would ever agree to such union demands, thereby effectively un- dercutting his general observation that everything was nego- tiable. During his first speech, Ford answered two questions on the subject of the credit union and paving the parking lot. He said that the Company had made up its mind about sponsoring or establishing a credit union, as he had prom- ised he would in his June speech, but could not announce it before the election because the Board's rules forbade it from granting benefits in order to influence the election, but 409 that regardless of the outcome of the election its decision would stand. As for paving the parking lot, Ford said he could announce that it would be done because expenditure of the funds had already been approved. Although the inci- dents in all their ramifications were extensively litigated at the hearing, I find no argument concerning them in General Counsel's brief. In any event, I find no violation of Section 8(a)(1) as to either incident . Although Ford himself had already approved the establishment of a credit union in the plant, the consent of the appropriate federal government authorities had not yet been obtained, so that an announce- ment to the employees might still be premature . As to the parking lot everything needful had occurred before the cam- pai n began, and Ford was only telling the employees that no further company approval was needed.'s L. Paragraph 10(j)-Distribution of Handbills On August 20, the day before the election, a handbill (in evidence as Resp. Exh. 2) was distributed to the employees at the plant on behalf of the Union.19 Jerry Shields prepared a handbill for the Company (in evidence as G.C. Exh. 222) which was distributed to many of the employees on the evening shift of August 20 and on the day shift the morning of the election. Paragraph 10(j) of the complaint alleges that the company handbills substantially misrepresented the wages rates and increases prevailing at other plants and industries in the area in order to dissuade Essex employees from selecting UAW as their representative, and was there- by in violation of Section 8(a)(1). The General Counsel' brief argues too that distribution of General Counsel's Ex- hibit 222 also constituted conduct affecting the results of the election. The significant parts of the Union handbill read as follows:20 YOUR "FACT" SHEET FELLOW EMPLOYEES Below are listed all of the U.A.W. contracts in the Traverse City area and the wages and fringe benefits these employees were able to negotiate for themselves in their last contract. Total Economic Average wage PkR. Per hr. increase Per hr. Burwood Products--T.C. .37 Cost of Living .26 (Mostly women) e--T Essex Wi C M 08 l . . r . ( ost y women) Courter Products- Boyne City .45 .37 (Mostly women) Mt. Clemens Metal- Mancelona .61 Cost of Living .30 (Mostly women) Riverside Electric Marion .40 Cost of Living .30 (Mostly women) /a/ YOUR REAL "FACT" COMMITTEE 17 See cases cited in fn. 6. 's Storktowne Products, Inc., 169 NLRB 974,979 (Promise to air condition plant. 19 The handbill had been prepared by Ronald McKinnon who was then chairman of the UAW unit at Parsons Tool Division in Traverse City. Al- though he was not then an officer of the International or of any of its locals, he had been active during the Essex Wire campaign and used material compiled by the Union in preparing the handbill . The Union and the General Counsel do not deny that the Union is responsible for McKinnon 's compila- tion of distribution of the union handbill. 20 The sheet listed the names of 10 firms showing amounts under each of the two columns, but I have enumerated for comparison, only those firms which the Company also listed on its handbill. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company handbill, with respect to wage rates, reads as follows: DEBUNKING THE BUNK I told you yesterday that the Company couldn't mis- represent any wage rates or fringe benefits . I told you I would be, and I was, precisely correct. The Bunk Committee play fast and loose with the truth when they combined male and female rates (lumping tool maker, machinist, maintenance and pro- duction) to get a higher average and then totalled three years' increases under union contracts and compared them with one year's increase at Boyne-Essex. Here's what really happened! General Hourly Waste Increases for Plants Employing Mostly Females Over Last 3 Years 1966 1967 1968 3 Year Total Boyne--Essex .14 .20 .08 .42 Mt. Clemens Metal- Mancelona .10 ,10 .10 .30 Burwood .06 .07 .10 .23 Courter Products .10 .00 .06 .16 Riverside Electric .04 .04 (Still .08 talking) Thus, according to the Union's handbill, the average wage increase per hour at Essex was 8 cents while at the four unionized plants it ranged from 26 to 37 cents. No separate "total economic package per hour" was shown for Essex, but it can be presumed that 8 cents per hour was meant, and was meant to be compared with, for example, Burwood Products, which under that column shows .37 @ cost of e living.21 The Union achieved this result by comparing th Essex 1968 wage increase of 8 cents with the wage package for the entire contract duration period of the other compa- nies, most of which were for 3 years. Thus, the 8-cent figure for Essex underestimated its average wage increase per hour over the past 3 years and failed to give a figure for its total wage package for the same period used for the other compa- nies. The Company handbill called attention to its opponent's failure to use a proper basis of comparison between the wage increases it-had given over the past 3 years and those given by UAW organized lants, but then proceeded to its own partial revelation of tphe truth. It compared its increase of 42 cents over the past 3 years with those of the four UAW plants, to its own advantage, without indicating in any way that " eneral hourly wage increase" did not include the cost-o_living increases which had been negotiated by UAW with these plants and which were included in the wage structure. These cost-of-living increases had been given "across the board" to all employees as were its own general wage increases, and by excluding them from its basis of comparison it seriously understated what employees at un- ionized plants had been able to secure through bargaining. The union handbill, timed for maximum effect the day before the election, was guilty of a serious misrepresentation of facts within the Union's knowledge. It was something which the Company had to answer quickly if it wanted its comparative position on wage rates and past increases made 21 The meaning of the symbol @ is "at" as in "four apples @ 5 cents equals 20 cents." Here, the use of @ might mean either "plus" or "including," but McKinnon himself could not explain what he meant when he drew up his table. known. But, in counterin the Union's misrepresentation with one of its own, the Company left the employees no better able than before to judge whether employees in union plants were better paid than they. This was an issue of great importance to the employees, and the Company, in omitting from its computation of its competitors' wage rates the cost- of-living increases uniformly paid to all employees , misrep- resented the increases which the Union had been able to win for them over the past 3 years. I find that the company handbill cannot be justified as being simply an answer to the Union's misrepresentation, but was in itself so serious a distortion of its wage increases as compared to those of union plants that its publication and distribution constitutes a violation of Section 8(a)(l), as well as conduct affecting the results of the election. The company handbill was distributed by Ford and Ed- ginton personally the morning of the election to many of the female employees working on the day shift. Each spent a minute or two per employee justifying the Company's ex- planation and answering the Union's handbill. There was also a postscript to the company handbill, reading as fol- lows: P.S. Below is a copy of a recent pay stub of a new Burwood employee showing the deduction of $24.20 for initiation fees and first month's dues. Beneath was a reproduction of a salary check from Bur- wood Products, with the name of the employee deleted, showing the employee's gross earnings of $73.47, the amounts of state and Federal taxes withheld , another de- duction of $24.20 and a net figure of $32.37. In heavy black writing superimposed on the check, the deduction of $24.20 was explained as being initiation fees and the first month's dues for a union. It was common knowledge in the plant that Burwood Products was represented by UAW. Ford asked some employees, while distributing the handbills, how they would like to have that much taken out of their paycheck. The facsimile of the check and superimposed writing is accurate, that is, a Burwood employee had had $24.20 de- ESSEX WIRE CORP. 411 ducted from her pay for union fees and dues, leaving her with take-home pay of lust over $32. What it omitted, how- ever, led to a falsification of what Essex employees might expect as a result of voting for the Union . It failed to note that the check was for less than a full week's work, what the breakdown between initiation fee and the first month's dues was, or that the initiation fee (which was $20 ) had been imposed on this employee because she was newly hired. Shields, who had prepared the handbill for the Company, knew that UAW does not normally charge an initiation fee of employees working in the plant when the Union first becomes their bargaining representative . Thus, an employee who was given the company handbill or who heard Ford ask how she would like something like $24 taken out of her check was led to believe that the cost of belonging to the Union, as a percentage of her weekly earnings, was much higher than in fact it would be. I find that the Company handbill contained misrepresen- tations which interfered with the employees' right not to be misled on the possible effect of union representation on their take-home pay, in violation of Section 8(axl), as well as constituting conduct which in itself would warrant setting the election aside. M. Paragraph 10(k)-Brennan After issuance of the complaint, and 4 months after the election, Respondent's attorney interviewed employees on the matters alleged in the complaint , in the plant manager's office at Traverse City. Employees were called into the of- fice, told the purpose of the interview, that they were not required to remain and that no harm would result whether or not they consented to be questioned . A number of em- ployees refused to be interviewed and left the office. The complaint does not allege that Respondent has taken any reprisal against them. At the hearing in this case paragraph 10(k) was added to the complaint alleging that the Compan , through its super- visor, Pat Brennan, violated Section 8(a(1) by insisting that employees had to go to the office to allow its attorney to ask them if they would consent to be interviewed . Employees Lucille Carlson and Ethel Kietzman refused at first to go to the office but did so after Brennan told each of them sep- arately that she had to obey her supervisor 's order. Kietz- man asked Brennan what might happen if she continued to refuse, and he told her she might be temporarily suspended. He also told her, however, that she didn't have to say anything once she got to the office . Carlson and Kietzman then went to the office where each was told by the attorney that she could leave if she wanted to . They refused to be interviewed and left. It is unlawful intimidation for an employer to question his employees during his investigation of an unfair labor prac- tice complaint unless he assures them that they need not cooperate with him without fear of reprisal. Here, the Com- pany insisted that it have the opportunity to ask employees if they would cooperate in its pretrial investigation. There was no doubt an element of possible intimidation in such insistence, but, in my opinion, it is overbalanced by the employer's right to issue enforceable instructions to em- ployees during working time . I do not regard an instruction to an employee to hear out an attorney's request for co- operation as being in itself interference with the employee's right to refrain from such cooperation . I shall therefore recommend dismissal of paragraph 10(k) of the complaint. N. Paragraph 10(m)-Korson Employee Lucille Carlson testified that in a conversation late in July with her supervisor in the pressroom , Pete Kor- son, she had told him that the women in the pressroom should be separately classified and should get more money, and that Korson had replied that after the election, or when the pressroom was moved to the Arca building, he would be on his own budget and maybe could see his way clear to giving them more money . On cross-examination, Carlson admitted that Korson had also said in effect that this would be done after the election, win, lose, or draw. Korson's testimony, although confused because of his effort to emphasize his budgetary responsibilities in his de- partment, is not substantially different from Carlson's. He told her that if the press department would move to the Arca building its operations could be more efficient and since he was on his own budget, he could recommend that the press- room employees be given more money , and that this could happen after the election, win, lose, or draw. Carlson was interested in getting a separate classification for women press operators in the expectation that this would bring them a higher rate, and the issue of multiple classifications for women was generally a matter of concern to them. Korson was referring to this concern of the women in the pressroom by sayin that the move to the Arca build- ing would improve the efficiency of his department, and that he would then have a good reason to recommend to management a higher wage rate for its employees, all of whom were women. His reference to the election in connec- tion with the phrase "win, lose, or draw" implied that his recommendation would be conditioned only on the move and on more efficient o rations, rather than on the out- come of the election. I find no violation of Section 8(axl) in Korson's remarks. 0. The Unit The following unit was agreed to by the parties as appro- priate for the election: All production and maintenance employees employed at the Employer's plants at Traverse City, Michigan, excluding truck drivers, office clerical and plant cleri- cal employees, technical, engineering, and confidential employees, and supervisors, professional employees, and guards as defined in the Act. Although there was no dispute in this proceeding as to the description or appropriateness of the above unit, there was disagreement as to the status of a few employees. At the hearing, the Union contended that the employees whom it had challenged at the election should be excluded as super- visors, but evidence was presented only as to two of these, Larry Whiteford and LeRoy Kolarovic . After assuming their exclusion, the General Counsel contends that the num- ber in the unit as of July 10, 1968, the date of the Union's request for recognition, was 346. The Company, on the other hand, claims that there were 351 employees in the unit on the same date . As neither party fully explained how it arrived at its figure, I have made my own calculation based on General Counsel's Exhibit 2(a), the Employer's Excelsior list, which it supplied for the election , and General Counsel's Exhibit 2(b), a letter from the Company to the Board, dated October 9, purporting to correct that list with certain additions and deletions as of July 10. My count of the names listed in General Counsel's Exhibit 2(a) is 344. General Counsel's Exhibit 2(b) indicated that G. Beardsley, who had been included in the Excelsior list had not in fact been employed on July 10. It also lists eight names to be added to those employed on July 10, but of these, four employees (A. Russell, E. Wisner, D. Stein, and M. Belan- ger) had already been included in the earlier list. The other 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD four (G. Urban, K. Walton, M. Root, and E. Fasel) were properly in the unit as of July 10. Deleting Beardsley makes a net gam of 3, for a total of 347 , based solely on those named in the Excelsior list, as corrected. I now come to the status of Kolarovic and Whiteford, whom the General Counsel would exclude from the unit. I have already held that Kolarovic was a supervisor in the bonding department, in discussing his alleged violations of Section 8(a)(l). The evidence in the record as to Whiteford's duties and responsibilities is scant. Whiteford had been a tool-and-die maker and substituted occasionally for the toolroom foreman . His major duties at the plant in 1968 involved drafting, which he performed in an office away from the plant floor. Without knowing how frequently or regularly Whiteford served as foreman in the toolroom, I am unable to decide whether he is a supervisor, but it is clear that his work as a draftsman is sufficient to exclude him from the unit as a technical or an engineering employee, categories specifically excluded from the unit by agreement of the parties. With Kolarovic and Whiteford excluded, the correct count of the employees in the unit as of July 10, 1968, was 345. The valid authorizations of 173 employees is what the Union needs to establish its status as majority representa- tive. P. The Card Count On July 10, the Union wrote the Company demanding recognition and offering to prove its majority status through a card check. The Company's attorney answered on July 12, agreeing to a card check under conditions which the Union later found unacceptable. To substantiate his claim that the Union did in fact represent a majority of the employees in the appropriate unit, the General Counsel introduced 183 cards dated on or before July 10.22 The card of Days (190), one of these, was however, stipulated to be invalid, because it had never been signed, nor was any of the information on the card in her handwriting. There was no way of determin- ing either from the card or from anyone's testimony that Days had intended the card as an authorization to the Un- ion to represent her, or that she had in fact ever delivered it to the Union. The General Counsel also introduced eight cards dated July 12 or later, the last being dated July 30. That card (173), siggnned by Gmoser, cannot in any event be counted, since Gmoser had already signed a valid card on June 6 (172) which had not been revoked. Thus, excluding the invalid cards of Days (190) and Gmoser (173), there is a maximum of 189 cards on which the General Counsel must rely. Of these, more than 60, substantially more than are needed to destroy the Union's claimed majority, have been challenged by the Company on one or more grounds. 1. The cards signed after July 1023 Although the General Counsel does not explicitly argue that the cards signed after July 10 should be counted, I consider myself obligated to consider the question since the cards may be critical. The answer turns on whether the Union's demand for recognition was a continuing one. If it was not, its right to claim majority status depends on the number of valid cards in its possession either on July 10, the date of its claim or on July 12, the date its request for n Hereafter, for can of reference, authorization cards will be identified by the name of the employee whose card it purportedly is, and, in parentheses, the General Counsel's exhibit number under which the card was received in evidence. recognition was rejected. But here, the Union's subsequent action in filing a charge of refusal to bargain after losing the election indicates that it never abandoned its claim of ma- jority status but agreed to seek an election only in order to expedite resolution of its claim, after the Company refused to abide by a card check limited to investigation of card authenticity. I find that the Union's demand for recogni- tion, first made on July 10, when it believed itself to be in possession of valid authorization cards from a majority of the employees in the appropriate unit, was a continuing demand extending past July 26, the latest date on which a valid card was signed? 2. Dates, signatures, and delivery of cards The Company questioned the validity of the card of Grif- fith (189) because it is undated. I find that it was received in the mail by the Union on June 11, 1968, on the basis of General Counsel's Exhibit 219, a list of employees and the dates on which their authorization cards were received in the Union's office. There was no objection to the receipt in evidence of that exhibit. I also note with respect to the validity of Griffith's card that the handwriting expert au- thenticated her signature, and that General Counsel's Ex- hibit 215, a letter from the Union to the Company, dated June 18, 1968, includes Griffith as one of the employees who had joined the in-plant organizing committee. I have also checked Griffith's signature on her card (189) with the sig- nature on General Counsel's Exhibit 208, a sheet which employees signed authorizing the Union to inform the Com- pany that they had joined that committee, and they appear to be written b the same person. I find on the basis of the above that Griffith signed her card sometime between June 6 and 11, and that it is valid. Two cards were questioned by the Company on the ground that they were dated before the opening of the 1968 campaign. These are the cards of Madeline Fields (167) and Michaeline Novak (94). They are dated May 6, and May 10, 1968, respectively. The cards cannot have been signed on those dates, since no authorization cards had been distrib- uted to plant employees before June 6, 1968, nor had there been any earlier efforts in 1968 by UAW to organize these employees. Fields and Novak were not called as witnesses, so there is no testimony as to when they signed. The Compa- ny does not question the authenticity of their signatures, or that Fields and Novak were employed on July 10. There is evidence in the record which satisfies me that the cards were signed during the 1968 organizing campaign. I note that General Counsel's Exhibit 215, a list of names of employees who signed up as UAW orgganizers, mailed to the Company by UAW on June 18, shows that employee Madge Fields had authorized the Union to list her as an organizer. I find that Madge Fields and Madeline Fields are the same person, since only one employee with that surname is listed on General Counsel's Exhibit 2(a), the names of persons employed on July 10, 1968. I also note, as to the correct date on which Novak signed her card, that General Counsel's Exhibit 219, a list of names of employees showing the dates on which their authoriza- tion cards were received by UAW indicates that Michaeline Novak's card had been received June 12. I am satisfied from the foregoing that both Fields' and Novak's cards were xs D. Williams ( 194), Seigh (195), Sedwarft (196), Struble (197), Merrillat (198), Newman (199), and Hatfield (200). 20 The Kostel Corporation, d/bla Big Ben Shoe Store, 179 NLRB No. 121, and 172 NLRB No. 167, In. 7; Manila Manufacturing Company, 171 NLRB No. 151; Garland Knitting Mills of Beaufort, South Carolina, Inc., 170 NLRB No. 39, fn. 4. ESSEX WIRE CORP. 413 signed and dated during the organizing campaign, and that both are valid cards. Helen Strakov (129): Contrary to the assertion of the Respondent in its brief that the handwriting exert, Richard Bowen, gave only a qualified identification ofpStakov's sig- nature on a UAW authorization card, I note that on pages 95-96 of the transcript Bowen gave his unqualified opinion that the signature on General Counsel's Exhibit 129 was that of Helen Stakov. I shall therefore treat the card as a valid authorization. Ethel Fasel (187): The signature line on this card is blank. The handprinting at the top of the card shows the name Ethel Fasel, and it was the opinion of Bowen that this compared with certain handwriting on the standard of com- parison, Fasel's W-4 form, which the handwriting expert had used. I am satisfied that Fasel handprinted her name on the top line of the card, but failed to sign it. The test for determining whether an authorization card in the posses- sion of a union is to be counted is the intent of the person who signed or who failed to sign on the si ature line. Here, there is no way of establishing what Fasel s intent was, since she did not testify nor did anyone else testify that the card had been delivered to the Union with Fasel's permission. In these circumstances, I cannot now determine her intention with respect to signing and delivering the card, and I shall therefore re ect if from the count.25 Amidon (185): Her first name is shown on Company re- cords as Glennagine, but she is known in the plant as Jean Amidon, which is the way she signed her card. She testified that she signed as she didbecause she did not want her card counted. Signing the way one is commonly known is suffi- cient to express one's intent, and I consider Amidon's card to be validly signed. Other questions as to the validity of her card will be considered later. Tyler (140) and Stradinger (125): each testified that she had signed an authorization card at home after reading it, without intending at the time to return it to the Union. In both cases, the card was mailed to the Union by a member of her family without the signer's explicit direction. There- after, although each subsequently learned that the card had been mailed, neither made any inquiry about how she might recover her card from the Union, nor attempted to do so. Although an intent to deliver a signed card is a necessary element in proving its validity for authorization purposes, it may also be evidenced by the signer's subsequent failure to seek its recovery. 26 1 consider their cards to have been properly signed and delivered. 3. Alleged attempts to revoke cards David Clark (29): He testified that after signing a card at the solicitation of Merle Barger he decided he had done so without full knowledge of what it meant. He wrote a letter to that effect, and asked Edginton, the plant manager, for an address where to send it. He testified that he turned the letter over to Edginton. It was apparently never mailed, since Clark said he later saw it when he was interviewed by Respondent's counsel in preparation for trial. Clark admit- ted that he knew where the UAW office was, but never went there for his card, nor did he ask Barger for aid in getting 25 Bird Machine Company, 65 NLRB 311, 312. Compare with Jas. H Mat- thews A Co, 149 NLRB 161, 162 (Cullim's card) and I Taitel and Son, 119 NLRB 910, fn. 3 (Salyer and Sands) 26 The Sinclair Company, 164 NLRB 261, 267 (Dean's card), and Peterson Brothers, Inc, 144 NLRB 679,681 (Simpson's card); cf The Mather Compa- ny, 172 NLRB No. 28 (TXD), where Yoakum, a card signer, was apparently unaware that her card had been found and turned over to the union by someone unknown it back. Taking Clark's testimony at face value, I am sat- isfied that his efforts to revoke his card were ineffectual. However, I am finding his card invalid for other reasons, explained later. John Miller (89): He testified that he asked a member of the employees' organizing committee, whom he could not identify, to have his card returned to him or destroyed. Again, even if I were to accept Miller's testimony at its face value, I would find that he had not taken adequate steps to revoke the card which he had signed, merely by asking an employee who had not solicited his card to return it to him. Grace Vandervort (141): Her signed card is dated June 11, 1968. She testified that she had signed the card that evening at Del's Tavern in Traverse City, at the solicitation of Roy Smith, a business representative of the Union, but that she regretted the signing and called him the next day to have him return her card. According to her, Smith said he would destroy it, thereby making its return unnecessary. Vandervort and Smith both agree that they know each other by name and face. Smith admitted that he was in Traverse City on June 11, and had attended a union meeting until about I l p.m. that evening. Del's Tavern stops serving at 2 a.m. Smith was not asked if he had been at the tavern after 11 p.m., but he did testify that he had never solicited Vandervort to sign a card. Further adding to the confusion, Smith also testified that Vandervort had never called him to ask that her card be returned. Vandervort later joined an antiunion group of employees at the plant and helped distribute its literature. Her action objectively shows her antiunion attitude after signing her card. Although that in itself would not constitute a revoca- tion of her card, it does lend plausibility to her story that she attempted to retrieve her card from the Union. There is nothing inherently improvable about her story that she signed her card during an evening's drinking, and then re- gretted it in the cold light of the next day. I find Vandervort's testimony more credible than Smith's, and therefore find that she requested Smith to return her card and thereafter relied on his promise to destroy it. Her revo- cation was thereby effective, and I shall not count her card 27 4. Alleged failure to comprehend purpose of card A number of employees, Waite (144), Dullinger (35), Miller (89), Amidon (1185), and Worm (155) testified, among other things, that although they had filled their cards in properly with their names, addresses, etc., they had not noticed, had not read, or did not understand that part of the card which said "Authorize UAW to represent me in collec- tive bargaining" even though it was in prominent type on the face of the card. I find these cards not to be invalid for that reason. These were all people of presumptively average intelligence, able to read and write English. The Board has recently reiterated its rejection of the argument presented by Respondent that such cards should not be counted, in Levi Strauss & Co., 172 NLRB No. 57, as follows: An employee who signs [an unambiguous] card may perhaps not understand all the legal ramifications that may follow his signing, but if he can read he is at least aware that by his act of signing he is effectuating the authorization the card declares. To assume that the employee does not intend at least that much would be to downgrade his intelligence or charge him with irre- sponsibility. We are unwilling to do either. Without ascribing to such cards and their signing all the solem- nity and binding effect associated with deeds, or wills, 27 S E Nichols Company, 156 NLRB 1201 , 1211 (Hounhan's card). 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or contracts, or bills and notes, there is, we believe, in the case of clearly expressed authorization cards, as in the case of other signed instruments, no valid basis in reason or law for denying face value to the signed cards, absent affirmative proof that the signing was a product of misrepresentation or coercion. 5. Representations as to an election purpose for the cards I come now to the category which includes the bulk of the disputed cards. This case was tried, and the briefs to me were submitted, before the Supreme Court's decision in the package of related cases denominated as N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. One of the cases disposed of in that decision was General Steel Products, Inc., 157 NLRB 636, reversed in part 398 F.2d 339 (C.A. 4), in which the Supreme Court discussed and decided the effect of sign- ing single-purpose authorization cards, the impact of repre- sentations as to an election on the validity of the card, and the relevance of the subjective intent of card signers. These matters were all issues subjective in the instant proceeding. The hearing might have been shorter if the parties and I had known what the Supreme Court's decision and raionale would be, but in view of the diversity of holdings of the various courts of appeal on the many questions raised here, I thought it safer in the long run to take testimony on matters which have since turned out to be largely irrelevant to my determinations. The prime example of my excessive caution was my ruling at the hearing, strenuously objected to by the General Counsel and the Charging Union in he light of existing Board precedents, to permit employees to testify as to their subjective intent in signing authorization cards, after identifying the particular solicitor who had rep- resented that an election would ensue when the Union had obtained sufficient cards. Since the Court has affirmed the Board's prior position on the point, I have disregarded the testimony of employees as to what they intended by signing the cards and limit myself solely to representations by a solicitor to an employee as to the purpose of the cards. It should be noted that although many cards were signed and delivered to the Union without oral solicitation of any sort as a result of distribution outside the plant and a mail- ing to those who had signed cards in the election campaign of 1967, there was also a good deal of solicitation, discussion and argument among employees in the plant and away from it. About 70 employees joined the in-plant organizing com- mittee and were given packets of authorization cards for signature. Most of the organizers were relatively inactive in obtaining signatures, aiding the Union's' efforts at organiza- tion mainly by argument and persuasion. On the whole, except for two or three of the most ardent solicitors, my impression from the whole record is that intensive pressur- ing of employees was rare , although a few employees did testify that they signed to get a solicitor "off their back." There were also weekly meetings open to those employees willing to join the in-plant organizing committee at which n, and Schultze, the Union official in charge of the camp other Union representatives spoke. About a week before the filing of the petition on July 18, there was an open meeting for all employees at the Union hall (there is no evidence on how well attended it was) where Schultze read and ex- plained the card and the letter which he was about to send to the Company demanding recognition on the basis of its asserted majority. I credit Schultze's testimony, as against the rather vague recollections of employees who heard him, that he did not claim that the only purpose for signing a card was to obtain an election. A few days before the Union's general meeting, the Com- pany had held its own meeting at the plant for all employ- ees, where Shields, the personnel manager, had warned the employees that the Union might gain majority status from the cards alone, thereby foreclosing the holding of an elec- tion. At the Union meetin g a few days later, there was a question directed at Schultze from an employee asking whether Shields was correct in claiming that no election might be held, or that if the Union lost the election it might still win majority status on the basis of the cards alone. Schultze answered by saying that it could happen that way if the Company committed unfair labor practices. The framework and guidelines governing the effect of signing a single-purpose authorization card cannot be better stated than in the Supreme Court's own language in Gissel Packing, 395 U.S. 5T5, 606-609: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a un- ion adherent with words calculated to direct the signer to disregard and forget the language above his signa- ture. There is nothing inconsistent in handing an em- ployee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election .... We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else .... We agree, however, with the Board's own warnings in Levi Strauss, 172 NLRB No. 57, 68 LRRM 1338, 1341 and n. 7 (1968), that in hearing testimony con- cerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the Cumber- land rule.28 We also accept the observation that em- ployees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, par- ticularly where company officials have previously threatened reprisals for union activity in violation of # 8(aXl). We therefore reject any rule that requires a probe of an employee's subjective motivations as in- volving an endless and unreliable inquiry. We never- theless feel that the trial examiner's findings in General Steel (seen. 5, supra) represent the limits ortthe Cumber- land rule's application. We emphasize that the Board should be careful to guard against an approach any more rigid than that in General Steel .... 28 in explaining and reaffirming the Cumberland Shoe doctrine in the con- text of unambiguous cards, the Board stated . "Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation . A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose . " The Board stated further in a footnote . "The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the 'sole' or 'only' purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than to form. It is not the use or nonuse of certain key or 'magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." ESSEX WIRE CORP. 415 Since the Supreme Court considered the Trial Examiner's comments and findings in General Steel regarding repre- sentations about elections and cards to be basically correct, I will follow the principles set out in his Decision, subse- quently approved by the Board in that case and in Levi Strauss, 172 NLRB No. 57, as a reliable guideline to the facts in the instant case. The Trial Examiner said, in General Steel, 157 NLRB 636, 645: At first glance, the distinction between representa- tions that an election is the sole purpose of the cards, and representations that an election is a purpose may seem a fine one, but the distinction goes to the very basis of the rule. Thus, by stating that the card may or will be used to secure an election, the solicitor neither contradicts the lain statement on the card nor miss- tates the Union s actual intention . As the Board ob- served in Cumberland Shoe Corporation , 144 NLRB 1268, "the failure of the Union's solicitors to affirma- tively restate [the authorization contained in the card] does not indicate that it was abandoned or ignored." • s s tified only as Polly, if she would sign a card . Barber said, "I guess so," and then asked her what it meant if she signed. Polly said it was so that they could vote on the Union later on, this was just to bring it to a vote. I note that Barber was prepared to sign immediately on being asked, so that it is uncertain what effect Polly's later remark might have had. On the other hand, Barber did ask for an explanation of what her signing would mean, and Polly then said both that it was so they could vote on the Union later, and that it was just to bring it to a vote . I do not believe, in this context, that the hrase `just to bring it to a vote" was a misrepresen- tation. She was emphasizing one of the purposes of the card, an election, but not so completely that Barber could not evaluate what she was told in the light of the language on the card. I find Barber's card to be a valid authorization. Bishop (17) was serving in the Armed Forces at the time of the hearing, and neither he nor Balenger (also spelled Ballinger) who had solicited his card, testified. Blodgett, who was herself one of the more active union solicitors and whose testimony on her own soliciting efforts I find to be straightforward and honest , testified credibly that she had overheard Balenger ask Bishop to sign a card. Bishop said With respect to the 97 employees named in Appendix B Respondent in its brief contends, in substance, that their cards should be rejected because each of these employees was told one or more of the followin : (1) that the card would be used to get an election , (2) that he had the right to vote either way, even though he signed the card, and (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election . For reasons heretofore expli- cated , I conclude that these statements , singly orjoint- ly, do not foreclose use of the cards for t e purpose designated on their face .... I see no need to distill from the entire testimony of each of the following named employees a word or phrase which would neatly but artificially stand for the entire representa- tion made to each of them. I am satisfied from a careful reading of their testimony, and of those who made the solic- itation, where that is in evidence, that the solicitors did not assure the signers that their cards would be used for no other purpose than to help get an election . Their cards are to be counted as valid authorizations to the Union to represent them in collective bargaining. Amidon (185) Merrillat (198) Ask (158) Michels (86) Benton ( 15) Moran (90) Blodgett (18) Morse (93) Bowman (183) Nixon (96) Brown (22) Mary Ann Root (164) Cozart (31) Running (119) Crawford (32) Russell (120) Dullinger (35) Sears (113) Dunlap (166) Smith (123) Egan (45) Stein (124) Fritz (41) Stieg (184) Harrigan (181) Stone (159) Hatfield (200) Waite (144) Martinson (80) D. Williams (194) Maxson (81) The following cards raise more difficult questions as to whether the encounter and conversation between solicitor and signer amounted to misrepresentation as to the purpose of the card which would vitiate the purpose stated on the card itself. On July 10, after the campaign had been in full swing for a month, Barber (11) was asked by a fellow employee, iden- that if he wanted the Union he would vote for it. Ba edger replied that he could sign a card even if he wanted to vote no, that just because he signed, he didn 't have to vote yes. Implicit in her answer, it seems to me, is a representation, specifically directed toward overcoming Bishop's reluctance to commit himself on the Union , that signing a card meant only that it would be brought to a vote . I find this to be a false inducement to Bishop to get him to sign his card, and I will not count it. Clark (29) was solicited to sign a card by Barger. Clark said he wanted to know more about the card because, as he said, although he wanted the election to take place, he also wanted to know what would happen if he signed. Barger then told him that if he signed a card, "it wouldn't be used as a vote, it would just be used to bring about the vote." Clark then asked him wh,y, the card was worded the way it was, and that he wouldn t sign the card but would write a letter saying that he wished to bring about a vote. Barger then told him that he had to send in a card, "otherwise it would be as if you hadn't done anything at all." A week or so after Clark had signed, having learned that the card was something other than a showing of interest for an election, he asked Barger why he had told him it would be used just to bring about a vote, when it could also be used for "recog- nition of the UAW to bargain for us." Barger could not give him a satisfactory answer . About this time, Clark wrote a letter revoking his card, but instead of giving it to Barger or sending it directly to the Union, gave it to the plant manager to take care of it for him. I have previously found that Clark 's attempted revoca- tion was ineffectual, but I nevertheless find that Barger's response to Clark's inquiry about the possible effects of signing the card was untrue, in that it misled Clark into believing that despite the working of the card , its only effect was to bring about a vote. I find that Clark's card was not a valid authorization for the Union , having been secured by a misrepresentation as to its purpose. Clous (30) testified on direct that Balenger, who asked him to sign, had said they had to get so many cards before they could have an election, that after the election they wouldn't use the card, and that its only purpose was to get an election. Clous took the card but did not sign it for some days and then waited for a few more days before he re- turned it to Balenger. Before finally turning it in, he had almost daily conversations with Balenger and Blodgett about what the Union might accomplish . Clous also joined 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the in-plant organizing committee. Although I have no reason to discredit Clous' recollection that Balenger had told him that the only purpose of the card was to get an election, I am satisfied, from his other conversations with Balenger and Blodgett about the Union , that he was not induced to sign the card by that particular statement of Balenger's but rather that he eventually signed the card because he decided that he wanted the Union to represent him. Colborn (191) was solicited to sign a card by Helene Ray. Colborn asked her what the card actually meant , and Ray told her that it was to bring the Union to a vote and that was all it meant. Colborn kept the card about a week before signing and returning it to another union adherent. Al- though Colborn was aware of the Union 's arguments why it should be chosen as the bargaining representative, and may have been influenced to some extentby them, it is my belief, based on her entire testimony , that she would not have signed the card except for Ray's representation that all that the signing meant was to bring the Union to a vote. I do not regard Colborn's card as a valid authorization. Parsons (99) also was solicited by Ray . Parsons testified that she was bothered by the wording on the card that it was an authorization to UAW to represent her, and asked Ra what the phrase meant if, as Ray had told her, the cards were to be used Just to bring- it to a vote. According to Parson's undenied testimony, ay then told her that it was just a technicality, that it really didn't mean anything. This is a clear misrepresentation as to the purpose of the card, and I shall not count it. Gray (46) was solicited by Potvin . Potvin and Gray were good friends and tacitly decided not to talk much about the Union because the former was prounion while Gray consid- ered herself uncommitted. When Potvin asked Gray to sign, Gray asked her what it was about , that she didn't want to be held to anything because she didn't know a whole lot about it. Potvin assured her that if she signed, it would just allow them to come in so they could vote on it. Here too, I believe that the inquiry by the signer , of the solicitor as to what signing the card meant, was answered with an explicit representation that its only p ose was to bring the matter to a vote of all the employees . T shall not count Gray's card as valid. Lambert (65) signed on Bailey's solicitation . Lambert asked him what the card was for, and Bailey told him it was so he could vote in the election for the Union. Although Bailey's representation is somewhat similar to Potvin 's solic- itation of Gray, discussed immediately above , I find that Bailey did not exclude the purpose stated on the card itself (as did Potvin to Gray)-that of authorizing the Union to represent the signer. I shall therefore count Lambert's card. The cards ofNewman (199) and Patterson (100) present a like issue, whether the silence of a solicitor may constitute a representation sufficient to invalidate a card . Ken Smith, a union official, asked Newman to fill out a card. Newman said he would, but that he would not vote for it . Smith did not tell him that signing a card was a step in a process which might obviate the need for voting. Patterson told Pfeiffer, her solicitor, that she was signin a card just to bring it to an election , as she had done in 1967. Pfeiffer did not point out to her that signing the card could have another effect. With a good deal of doubt, I conclude that these two cards are valid. Although suppression of a material peice of information is itself a kind of falsification, I believe it is overbalanced here by the fact that Newman and Patterson had decided to sign the cards, after having an opportunityto read them, because of their own incorrect evaluation of what they meant . The failure of the solicitors to disabuse them of their own misunderstanding of the card's purpose was not a guaranty that the plain wording of the card could be disregarded. Miller (89) testified that he had first refused to sign a card, but then did so on Myrtle Tompkins' assurance that the card was strictly to bring the matter to a vote. Tompkins, on the other hand, testified that she met him as the af- ternoon shift was about to begin work, and asked him if he had signed a union card yet. He said he hadn't. She asked him if he wanted one and he said he did. He accepted the card and signed it right there . I had the impression from his testimony and demeanor that Miller was willing to tailor his testimony to fit what he thought the Company would be most pleased with. Tompkins' manner in testify' g seemd sincere to me, and I credit her testimony that she made no representation at all to get Miller to sign a card . I shall count his card. Patton (177) testified that Carlson gave her the card she signed, but that she talked to other women at the plant about what it meant-whether it was binding on them, and whether they were thereby joingin^ the Union. Fields and Carlson both told her that it wasn t binding, it was just to give them the right to bring it up for an election if they had enough signatures on the cards. Belying her recollection as to the order of events is the fact the Patton's card is dated June 7, the day after the first distribution at the plant gate. I find that Patton signed her card before individual solicita- tion of employees began inside the plant, and thus without reliance on the supposed misrepresentations of either Fields or Carlson as to the purpose of the cards. Welsh (148) testified on direct that she had told Blodgett, who asked her to sign a card, that she didn't want to sign because she was not sure that she was going to vote for the Union, and that Blodgett had then told her that it wasn't a vote for the Union but was just to get an election underway. Welsh said she would think about it and if she decided to sign, it would be dust to get the election underway. On cross-examination, without realizing, I think, the possible effect of the phrase "Just to get an election," Welsh said that Blodgett had not really asked her to sign a card , but had just given her one, saying that they needed so many people to sign cards so they could get an election underway. I think the fair import of her entire testimony is that Blodgett had not told her that the card was just for an election, but that Welsh hereself had told Blodgett that that was why she was signing. That may have been her subjective intent but it is irrelevant in view of the plain wording of the card. I shall count Welsh's card as a valid authorization of the Union. 6. Miscellaneous matters Janik (171) is a recent immigrant who does not read or write English. She accepted the Union's literature and card in an early distribution outside the plant, and brought them home with her. She testified on direct that she asked her husband to sign her name on the card, and that she knew "it was for the Union." On cross-examination, she took refuge in her inability to understand English well, in order, I suspect, to reveal as little as possible of-her past intentions to her employer. I find that she understood, well enough for the Board's purposes, what the card was intended for, and that her husband's signing her name was intended by her to show her support of the Union in its effort to gain represent- ative status. Wisniewski (154) testified that an unknown man claiming to be an employee of a unionized firm in the area and a union representative called on her at her home. He ex- plained some of the benefits at his unionized plant and then, according to her uncontradicted testimony, asked her to sign an authorization card to show that he had been there ESSEX WIRE CORP. 417 to talk to her, and so that no one else would have to come back to see her. She filled out the card and signed it. I find her card to be a valid designation of the Union 29 Druckenmiller (143), Pfeiffer, (102), Seigh (195), Sedwarft (196), Struble (197), and Ray (106) did not testify, and there is no evidence as to any improper solicitation or representa- tion made to them. It is true that Ray did solicit others to sign, and their testimony indicates that Ray may have been confused about the effect of signing a card, but that in itself does not invalidate her own card. Atkinson (9), Brown (22), Fisher (38), Jeffers (168), O. Kietzman (58), J. Korson (162), R. Manville (77), Mazurek (82), Snyder (128), and St. John (VanDeventer) (169) all testified, but I am satisfied from their testimony that each of them either signed his or her card before any representa- tion had been made to him, or else that the card was signed without reliance on such representation. In any event, I also find that, if a representation as to an election was made to them before they signed, it was insufficient to invalidate their authorization. 7. Recapitulation as to card count I have found that the necessary majority which the Un- ion had to attain was 173, based on an appropriate unit of 345 employees. The General Counsel presented 189 poten- tially authentic cards, including 7 dated after July 10. I consider these to be prima facie valid since the Union's demand for recognition on that date continued to be an effective demand. Of these 189 cards, I have found that 7 cards may not be used in determining the Union's majority for the following reasons: Fasel (187) because it was not signed; Vandervort (141) because it had been revoked be- fore the initial demand for recognition; and the remaining 5, Bishop (17), Clark (29), Colborn (191), Parsons (99), and Gray (46), because the totality of circumstances surround- ing their solicitation establishes that they were signed be- cause of misrepresentations as to their puspose. My calculation indicates that the Union therefore had obtained 182 valid authorization cards during its organizing cam- paign, or more than enough to prove its needed majority of 173. Moreover, even if jam wrong in considering the Union's claim to be a continuing one after July 10, so that the seven cards obtained after that date should be disregard- ed, the Union still would have had 175 cards as of the cutoff date of July 10. Thus, under either set of circumstances, I find that the Union had represented a majority of the Trav- erse City plant employees. Q. The Refusal to Bargain On July 10, the Union requested recognition, suggesting a third-party card check to substantiate its claimed majon- ty. On July 12, Respondent's attorney accepted the offer of a card check (but on terms which the Union later found unacceptable) while also claiming that there were questions about the claim which could best be resolved by the Board. Thereafter, the Company and the Union entered into a stipulation for certification upon consent election, pursuant to which the election of August 21 was held. As previously noted, the Union lost the election by a vote of 106 for, and 180 against, representation. Under the Supreme Court's opinion in Gissel Packing, an employer's motivation in refusing to recognize a union on the basis of signed cards is no longer determinative as to whether there has been an illegal refusal to recognize the majority representative. It is now incumbent on the Board to appraise the reliability of the cards, on the one hand, and the election process, on the other, as a gauge of employee sentiment. In making such appraisal, the Board is required to consider the impact of any employer unfair labor prac- tices. The Court approved the Board's authority to issue a bar- gaining order in cases marked by practices which have the tendency to undermine majority strength and impede the election processes. The Court went on to say, 395 U.S. 575, 614-615: The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should re-emphasize, where there is also a showing that at one point the union had a majorit ; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring em- ployer misbehavior. In fashioning a remedy in the exer- cise of its discretion, then, the Board can properl take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra). There is no way to count or measure quantitatively the pervasiveness or extensiveness of an unfair labor practice, its impact on the first election, or the possibility of erasing its effects in a future election many months later. It is, nevertheless, a decision which must be made, based on the Board's "expert estimate as to the effects on the election process of unfair labor practices of varying intensity. " Gissel Packing Co. supra, fn. 32. That decision must be mine, in the first instance, based on Board precedents which embody its "expert estimate" on factual situations which are never quite the same as the one under consideration. Here, the Company through foreman and higher manage- ment (Dunfee, Morgan, Timmons, and Ford) continually linked the employees' selection of the Union with strikes, loss of orders, removal of equipment from the plant, and loss of jobs. Some of them dwelt on the likelihood that negotiations would be long and difficult, that the Union would force the employees to strike, and that since ev- erything, including present benefits, was negotiable, it was not unlikely that the employees would be worse off by se- lecting the Union. I have also found that Ford promised some employees on the day of the election a "surprise pack- age" if the Union were defeated, and that the company handbill, distributed the same day, seriously misrepresented the wage increases which the Union had won for employees in other area plants, and what the financial cost of the Union was likely to be to the employees. These are neither isolated nor minimal violations, and in my judgment, are similar in their nature, extent, and perva- siveness with violations which the Board has, post-Gissel, held to warrant a bargaining order rather than a first or second election.30 I therefore find that by refusing to bar- gain with the Union and engaging in the unfair labor prac- tices described above, Respondent violated Section 8(aX5), and that to effectuate the policies of the Act, a bargaining order is required to remedy its refusal to bargain as well as its other unfair labor practices. 30 General Stencils, Inc, 178 NLRB No. 18; Thrift Drug Company of Penn- 29 N.L R.B v. Kinter Bros Inc., 419 F.2d 329 (C.A.D.C.), enf 167 NLRB sylvania, 179 NLRB No . 139, General Steel Products, Inc., 180 NLRB No. 8; 57 (cards of Radcliffe and Reichard) and Levi Strauss & Co, 180 NLRB No. 43. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. OBJECTIONS TO THE ELECTION Timely objections to the election were filed by the Union on August 28. Many of them raised the same issues as the conduct alleged in the complaint as violations of Section 8(a)(1), and the Regional Director therefore consolidated the two proceedings for purposes of hearing and disposi- tion3i I have found above that Respondent interferred with, restrained and coerced its employees' self-organizational rights in violation of Section 8(a)(1). Much of this occurred after July 18, the date on which the petition was filed and, thus, the cutoff date for consideration as to whether to set the election aside because of interference with the employ- ees' exercise of a free choice in the election . However, since I believe that the nature and extent of the unfair labor practices committed make it unlikely that their effect can now be dissipated merely by a remedial order limited to the specific Section 8(axl) violtions, I find that the employee sentiment already expressed through authorization cards would be better protected by a bargaining order than by a rerun election. I shall therefore recommend that the election of August 21, 1968, be set aside and that the petition in Case 7-RC-9027 be dismissed. V THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COM- MERCE The activities of the Respondent set forth in secion III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial 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. CONCLUSIONS OF LAW 1. Respondent is an employer enga ged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following em loyees constitute a unit appropri- ate for the purpose ofpcollective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees employed by Respondent at its plant at Traverse City, Michigan, excluding truckdrivers, office clerical and plant clerical employees, technical, engineering and confidential em- ployees, supervisors, professional employees, and guards as defined in the Act. 4. At all times since July 10, 1968, the Union has been the duly designated bargaining representative of the em- ployees in the aforesaid collective-bargaining unit. 5. By refusing on July 12, 1968, and thereafter to bargain with the Union as the exclusive representative of the em- ployees in the appropriate unit, Respondent has engaged in and is engagin in unfair labor practices within the meaning of Section 8(a(5) of the Act. 6. By the foregoing conduct, and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has 31 There were other objections to the election , relating to alleged assistance by the Company to an informal group of employees who were opposed to the Union, and to alleged electioneering by the Company within 50 feet of the polling place during the voting . These objections were litigated at the hearing, and I am satisfied from the testimony that they were not proved and are without merit engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not engage in unfair labor practices other than as found herein. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, my Recommended Order will provide that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As indicated above, an order to bargain collectively with the Union is appropriate to remedy the Company's viola- tions of the Act. Even in the absence of a refusal to bargain, I would find this remedy appropriate in the circumstances of this case in view of the Company's extensive violations of Section 8(a)(1), which prevented the employees from ex- ercising a free choice in the election. The unfair labor practices found here are such as to indic- ate an attitude of opposition to the purposes of the Act generally. I find therefore that a broad cease -and-desist provision is necessary to effectuate the policies of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that Respondent, now known as Essex International, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that their selection of the Un- ion would lead to strikes, loss of contracts or customers, removal of plant equipment, and loss of jobs. (b) Threatening employees that contract negotiations with the Union would start from a lower base than their present level of wages and benefits. (c) Promising employees benefits in the form of a "sur- prise package" if the Union was not selected as their bar- gaining representative. (d) Comparing its own wage and benefits structure with that of union plants by misrepresenting the wage increases received by the employees of such plants. (e) Misrepresenting the cost to its present employees of union dues and initiation fees. (f) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to join or assist International Union , United Automobile, Aeros- pace and Agricultural Implement Workers of America (UAW), or any other labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. (g) Refusing to recognize or bargain collectively with In- ternational Union, United Automobile, Aerospace and Ag- ricultural Implement Workers of America (UAW) as the exclusive bargaining representative of the employees in the apppropriate unit set forth in the conclusions of law above. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the collective- bargaining representative of all its employees in the appro- priate unit set forth above , with respect to rates of pay, ESSEX WIRE CORP. wages, hours of employment, or other terms of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its plant at Traverse City, Michigan, copies of the attached notice marked "Appendix."32 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.33 I Turther recommend that the complaint be dismissed as to any alleged violations not found herein; and that the petition for certification of representative in Case 7-RC- 9027 be dismissed. 32 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an order of the National Labor Relations Board " 33 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that their selection of International Union, United Automobile, Aeros- ( ace and Agricultural Implement Workers of America UAW), or any other Union, would lead to strikes, loss of contracts or customers, removal of plant equipment and loss of jobs. WE WILL NOT threaten our employees that contract nego- tiations with the Union would start from a lower base that our present level of wages and benefits. 419 WE WILL NOT promise our employees benefits in the form of a "surprise package" ifthe Union is not select- ed as their bargaining representative. WE WILL NOT compare our wage and benefits structure with that of union plants by misrepresenting the wage increases received by employees of such plants. WE WILL NOT misrepresent the cost to our present em- ployees of union dues and initiation fees. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their nght to self-organization, to join or assist International neon, United Automobile, Aerospace and Agricultur- al Implement Workers of America (UAW), or any oth- er labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid of protection, or to refrain from any or all such activities. WE WILL, upon request, recognize and bargain with In- ternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the collective-bargaining agent of the employees in the appropriate unit of our plant at Traverse City, Michigan. The unit includes: All production and maintenance employees ex- cluding truckdrivers, office clerical and plant cleri- cal employees, technical, engineering and confidentialyemployees, supervisors, professional employees and guards as defined in the Act. All our employees are free to become, or re- All our employees are free to become, or remain, or to refrain from becoming or remaining members of the above- named or any other labor organization, except that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. Dated By ESSEX INTERNATIONAL INC. (Employer) (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich- igan 48226, Telephone 313-226-3200.