Birdsall Construction Co.

BIRDSALL CONSTRUCTION COMPANY 163 Birdsall Construction Company and Local 1680, International Longshoremen's Association, AFL- CIO. Cases 12-CA-5221-2 and 12-RC-3774 July 12, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND JENKINS On January 31, 1972, Trial Examiner Fannie M. Boyls issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief and the Union filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and the briefs, and has decided to affirm the Trial Examiner's rulings,' findings, and conclusions, and to adopt her recommended Order only to the extent consistent herev,ith.2 1. We do not adopt the Trial Examiner's finding that the two preelection speeches delivered by Respondent's president violated Section 8(a)(1) of the Act and interfered with the right of the employees to make a free and untrammeled choice in the election. Unlike the Trial Examiner, we conclude that the speeches do not contain threats of retaliation based on misrepresentation and coercion as contem- plated by the United States Supreme Court in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 618. Respondent's speeches amount to nothing more than an objective statement of the financial problems which it would face in the event of unionization, followed by a prediction that such problems could make relocation in the Miami area an economic necessity. In addition, while Respondent stated that economic pressures might force plant relocation, there is no suggestion that the employees could not continue their employment at the new site in Miami. On these facts, we view Respondent's speeches not as containing unlawful threats of retaliation in the event the employees selected the Union to represent 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing her findings - 2 Respondent's request for oral argument is hereby denied as, in our them, but rather as a recital of Respondent's belief regarding the demonstrable economic consequences beyond its control which could flow from unioniza- tion. As such, the speeches are protected by Section 8(c) of the Act. Gissel Packing Co., supra. 2. We also do not adopt the Trial Examiner's finding that Respondent interfered with the free choice of the employees at the polls through suggestions in the speeches that unionization could result in the adoption of a discriminatory union referral system. This conclusion is based upon our finding that such statements were not properly before the Trial Examiner at the hearing. As the Trial Examiner herself notes, the union referral system comments in the speeches were not alleged by the General Counsel as an unfair labor practice. Secondly, the Union's objection to such comments, as set forth in Objection 4 of the Union's March 24, 1971, Objections to Conduct Affecting Results of the Election, was overruled by the Regional Director in his Supplemental Decision, Order, and Direction of Hearing on Objections dated June 10, 1971. More- over, the Board affirmed this, decision, of the Regional Director by denying the Union's Request for Review as it related thereto. Finally, the record indicates that the parties did not litigate the union referral system statements at the hearing. Consequently, the Trial Examiner's finding in this regard is without evidence to support it. 3. We find, however, that Respondent's systemat- ic interrogations of unit employees violated Section 8(a)(1) of the Act and interfered with the exercise by employees of a free and untrammeled choice in the election. Such conduct warrants setting aside the election and the direction of a new election.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Birdsall Con- struction Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified. 1. In view of our conclusion in this regard, paragraph 1(a) of the Trial Examiner's recommended opinion, the record including the briefs adequately presents the issues and positions of the parties 3 The Trial Examiner considered it unnecessary to decide whether the interrogations found to constitute Sec 8(a)(l) violations also interfered with the election. We find that Respondent's conduct did result in such interference in view of the Board's rule that conduct violative of Sec 8(a)(1) a fortiori interferes with the exercise of a free and untrammeled choice in an election Dal-Tex Optical Company, Inc, 137 NLRB 1782. 198 NLRB No. 20 164 DECISIONS OF NATIONAL Order is deleted and paragraphs 1(b) and 1(c) are relettered 1(a) and 1(b), respectively. 2. Substitute the attached notice for the Trial Examiner's notice. IT Is FURTHER ORDERED that the election conduct- ed on March 18, 1971, in Case l2-RC-3774 be, and it hereby is, set aside, and that Case 12-RC-3774 be, and it hereby is, remanded to the Regional Director for Region 12 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Election and Excelsior footnote omitted from publication.] MEMBER JENKINS, concurring: I agree with my colleagues that Respondent's systematic interrogations of unit employees were unlawful ur.der Section 8(a)(1) of the Act and that the election should be set aside. However, I would also affirm the Trial Examiner in finding Respon- dent's speeches to the employees unlawful under Section 8(a)(1). I do not find it necessary to pass on the statements regarding the union referral system. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees about their union membership, views, or sympathies. WE WILL NOT, in any like or related manner, interfere with our employees in the exercise of their organizational rights guaranteed under the National Labor Relations Act. BIRDSALL CONSTRUCTION COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7227. LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE FANNIE M. BoyLs, Trial Examiner: Case 12-CA-5221-2, initiated by a charge filed on July 1, 1971, and a complaint and an amendment to complaint issued on August 3 and 19, 1971, respectively, was consolidated on August 19 with Case 12-RC-3774. These consolidated cases involve preelection conduct by Birdsall Construction Company, herein called the Company, which is alleged to constitute violations of Section 8(a)(1) of the Act or to affect the results of the election. They were heard before me in West Palm Beach, Florida, at various dates between September 16 and 24, 1971. At the conclusion of the hearing counsel for the General Counsel, for the Company and for the Charging Union argued orally upon the record. Thereafter counsel for the Company and for the Charging Union filed briefs. Upon the entire record in these proceedings, upon my observation of the demeanor of the witnesses who testified, and after careful consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a Florida corporation engaged in the business of transporting freight. It has its principal office and place of business at Riviera Beach in Palm Beach County, Florida. During the 12-month period preceding the issuance of the complaint, the Company derived revenue in excess of $50,000 from the furnishing of freight transportation services from points in Florida directly to points and places outside Florida . Based on these admitted facts, I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1680, International Longshoremen's Association, AFL-CIO, herein called the Union or the ILA, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES AND PROCEDURE At a representation election conducted on March 18, 1971, among the 34 employees in the appropriate bargain- ing unit at the Company's Riviera Beach facilities in Palm Beach County, 15 employees voted for and 18 against representation by the Union. The Union thereafter timely filed objections to conduct affecting the results of the election, which, insofar as here pertinent, allege that the Company made speeches during the critical preelection period to its assembled employees in which it: (1) threatened to move its operations to the Miami area, with a resulting loss of jobs for the employees, if the Union won the election; (2) promised financial aid and other assist- ance to the employees if they voted against the Union; and (3) threatened employees that if the Union came in and did not get what it wanted in negotiations and went on strike, BIRDSALL CONSTRUCTION COMPANY 165 the Company would replace and discharge all strikers. The objections also alleged that the Company, through its vice president, John H. Birdsall III, in speeches to the massed employees and also in individual talks with the employees (1) made material misrepresentations of fact about the Union and its activities in other areas; (2) told the employees that the Union and its affiliates had caused strikes all over the country and that if the employees voted the Union in, they would be involved in those strikes; (3) told the employees that if the Union won, it would require the Company to employ only the Union's favorite members and that employees who were not in good standing with the Union or were not favorites would not be allowed to be employed; (4) interrogated employees about their union activities and union membership; and (5) made unilateral changes in terms and conditions of employment by instituting a policy of giving loans to unit employees, and by allowing such employees to come to the executive offices of the Company with their problems, contrary to past practice. It is alleged in the objections that the above- described conduct of the Company deprived the unit employees of their right to make a free and untrammeled choice in the election. The complaint in the unfair labor practice case was confined to the allegations that: (1) the Company in speeches to its assembled employees during working hours on or about March 2 or 3 and on March 16 had threatened that if they selected the Union to represent them the Company would move its operations to Miami, with the result that employees who could not afford to move would lose their jobs; (2) the Company had made similar statements to employees in individual interviews with them during the critical preelection period; and (3) the Company during such individual interviews had interrogated employ- ees about their union membership, activities, status, or views. The Company concedes that its vice president gave a speech to the assembled unit employees during their working time on or about the dates alleged and that he talked individually to at least 20 of the 34 unit employees prior to the election in an attempt to persuade them to vote against the Union but denies that anything he said was in violation of the Act or deprived the employees of their right to make a free and untrammeled choice in the election. At the hearing, counsel for the General Counsel took an active role only in seeking to support the allegations of the complaint and counsel for the Union, though seeking also to support the allegations of the complaint, assumed the responsibility for presenting evidence in support of the objections to the election. In connection with investigating the objections to the election, the Regional Director of the Board or his agent interviewed and took written statements from Vice President Birdsall and six of the unit employees. Counsel for the General Counsel had available at the i Pertinent parts of the instruction are as follows Counsel for the Regional Office-Functions and Duties- The primary function of counsel is to see that evidence adduced during the Region's investigation becomes part of the record Counsel for the Regional Office should not offer new material until it is certain it will not be offered by one of the parties Counsel for the Regional Office should be thoroughly familiar with hearing all of these persons from whom statements had been taken and so advised all counsel. All these persons except one were called and testified. After all parties had rested, counsel for the Company moved to dismiss the objections to the election because that one employee, James B. Thornton, had not been called to testify. Counsel for the Company took the position that since neither he nor union counsel had called the employee, it was the obligation of counsel for the General Counsel (also acting in a very limited role as counsel for the Regional Director) to call Thornton. This obligation, the Company's counsel argued, arises under National Labor Relations Board Field Manual instructions issued by the General Counsel (Instruction I1424.4).i Counsel for the General Counsel and Regional Office, on the other hand, asserted that Thornton's statement contained no new evidence, was "merely cumulative of other matters," and that counsel for the Regional Office had satisfied her obligation under the Field Manual by having the witness present and available for any party who might wish to call him. This obligation, earlier stated by co-counsel for the General Counsel, was that after the Union and the Company had finished presenting their evidence bearing upon the objections to the election, "if there [was] anything further in the Board's files pertaining to those objections which [had] not been brought out, that [counsel for the Regional Office would] feel obligated to do it himself." Regardless of whether counsel for the Regional Director correctly interpreted or strictly complied with the Field Manual instructions, I am satisfied that a noncompliance with such General Counsel's instructions do not constitute grounds for dismissing the objections to the election. I now reaffirm my denial of the Company's motion based on such alleged noncompliance. As stated in the Manual itself (revised ed., June 1971), "Its purpose is to establish procedural and operational instructions for the guidance of the agency staff in administering the National Labor Relations Act. The instructions are not Board rulings or directives, and are not a form of authority binding upon the Board." A Trial Examiner is bound by the Board's Rules and Regulations but not by General Counsel's instructions to members of his staff. This is not to say, however, that a paucity of evidence or an irregularity in procedure which is in violation of the General Counsel's instructions to its staff will have no effect upon the decision reached by the Trial Examiner. The effect will depend, not upon noncom- pliance with the General Counsel's instructions qua instructions, but upon the quantum of reliable evidence presented or the inherent fairness of the procedures followed. Since, as will hereinafter appear, my findings herein are based principally upon documentary evidence adduced by the Company and upon the testimony of the Company's chief witness, the Company is in no position to the contents of the regional case file, and, during the hearing, should have it in his possession and should assure that the evidence adduced during the investigation is made part of the record. In this connection, it should be noted that counsel for the Regional Office does not have the duty of sustaining the Regional Director's report or supplemental decision 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complain that it was prejudiced by the fact that no one saw fit to call the witness in question? IV. EVIDENTIARY FACTS A. Birdsall's Speeches During the Preelection Period The Company's vice president, John H. Birdsall III, admittedly required the unit employees to remain at the plant after the conclusion of their normal workday at 5 p.m., and paid them for the time during which they listened to preelection speeches he made to them on or about March 2 or 9 and on March 16, 1971. There was a roll call of employees before the speeches began. Birdsall did not have a written speech before him and was apparently not even speaking from notes on the occasion of the first speech. However, the content of the speech, according to the witnesses who testified about the speeches, was the same or substantially the same as that in the second speech, from which Birdsall appeared to be reading as he talked, except for a few matters added on the occasion of the second speech .3 Although, as Birdsall testified, he looked up frequently from the text of the speech from which he was reading on March 16 in an attempt to hold the attention of his employees-who did not appear to be listening to what he was saying-I credit his testimony that he did in fact read the prepared speech verbatim and said nothing further except for a few words at the beginning and end of the speech. Preliminary to reading the speech he conceded that he may have mentioned something about a change in supervision over "headers" and asked for comments on that subject. He also told the employees that he felt a little silly reading a speech to them but that he was doing so on advice of counsel to avoid being misquoted. At the conclusion of the speech, he asked the employees whether they had any questions. No one responded. He then assured them that his office door was always open to them and that if they had any questions or problems, he wanted them to feel free to talk to him about them. The speech which Birdsall gave was introduced in evidence. Those portions of it which appear to bear upon the subject matter of the objections and unfair labor practice allegations are set forth below: ... you have to keep in mind the history of the Company here at Riviera Beach. We located here some 8 years ago. We could have located in Miami or Fort Lauderdale, where everybody else located, because of the closeness of the ports down there. We figured that if we kept our operation up here, we would provide jobs for employees that they would not otherwise to able to get. Of course, to do this, as you all know, we had to institute a trucking system to carry our goods between Miami and Fort Lauderdale and Riviera Beach. Now this trucking operation is very expensive to operate, but our customers are naturally going to use whoever can do the job cheaper and better. We quote 2 The Company's motion filed on December 21, 1971, to supplement its brief by including therein reliance on N L.R B v. Addison Shoe Corp, 450 F.2d 115 (CA 8, 1971), is granted. Nothing in that decision, however, requires a result different from that reached herein the same rates as shipping companies in Miami and Fort Lauderdale. Did all of you know that? Just think about that for a minute. We compete with Fort Lauderdale and Miami carriers and yet those carriers don't have to truck their goods back and forth from Palm Beach to the ports that they use. Instead, they use ports down there. Now what is the difference? The difference is that the Employers in the port of Miami operate under an ILA contract. The cost of operating under an ILA contract is considerably more than the cost of our operating up here at Riviera Beach. Another thing you know from the papers is that the ILA as long as I can remember traditionally goes out on strike when their contract is up and they stay out a week or a month or longer. If we go down there we'll be out also. That means that you lose that money every time. But we've always kept on working without any loss every time they're out. I think this is important and you should remember it. We want to continue operating at Riviera Beach, because that is where we live and that is where you live; it is where both of us have our families. Now I don't have any particular desire to move down to Miami or Fort Lauderdale and I'm sure you don't want to either. But consider the problems that would face us if this Union were voted in here: (1) First of all, we operate this business to try to make a reasonable profit. We have certain costs, and certain income, which is based on, as I said, the same rates that the Miami shippers use. (2) If those costs are increased , and we have no other way of absorbing those costs because we cannot increase our rates, then we have to find some other way of reducing costs. (3) One of our major costs is the cost of transporting our goods between Riviera Beach and Miami and Fort Lauderdale. (4) If we have to operate under the increased cost of an ILA contract, doesn't it make considerable sense to do it in Miami and Fort Lauderdale where we don't have the added cost of transporting goods to and from Riviera Beach? Now I'm not threatening you with moving this operation to Miami if the Union wins this election, but all of you know enough about the shipping business to know that no shipper is going to deliberately put himself in a position where he cannot compete with other shippers. I'm not going to tell you that this is a certainty, but I will tell you this: I predict that if the ILA wins this election, and if we have to operate under an ILA contract which adds considerably to our cost, then we are certainly, as businessmen, going to have to consider very strongly the 3 Birdsall himself testified only with respect to the second speech. The draft of the speech, according to Birdsall, had been prepared after numerous consultations with his counsel and had been completed and edited by them about a week before he delivered it BIRDSALL CONSTRUCTION COMPANY 167 necessity of moving our operation so as to reduce our cost. In fact, I imagine ILA would not even object to this, because if we had to move to Miami, we would undoubtedly operate as a union shop at the port of Miami. So the Union would probably be very happy. The only person who would be unappy would be the Company and you. Make no mistake about this, the Union cannot force the Company to operate unprofitably and the Compa- ny, whether there is a union contract or not, always has the right to try to cut costs as much as possible and to operate as profitably as possible. s s s s s You've got to understand one important factor: The law says that if the Union wins this election and if the Union asks us to bargain, all the Union can do is ask. And what does the Union do if the Company says no? I don't know what the Union will do, but it may strike. Ifit does strike, there are two further questions that you must ask yourself. (1) What would a strike cost me? Do you have any idea how long it would take you to make up lost wages alone if you were out for only one month? It would take you years, if you ever made them up. And some strikes last for years. (2) Will I be able to keep my job at all if the Union strikes? I'll bet that the union agent didn't tell you that economic strikers are subject to immediate and perma- nent replacement. That means just what it says, you may not have a job here at all, ever, if you go out on strike. But you may say that the Union cannot force you to strike. That's not exactly true; even in Florida, a Union can fine its members for crossing a picket line and going to work and can enforce the fine in court. How do you avoid this: by voting no in the election on March 18. Most of you, I'm sure, have never had to live thro'igh a strike and so maybe you don't know how rough it can be, but it is certainly something you want to consider. Now I'm not saying that a strike is bound to happen here, but all of you know the history of the ILA as well as I do and you know that when this Union has deemed it necessary to call a strike, it has not hesitated to do so. s s s• s • All I'm asking,you to do when you go into vote on March 18 is to be smart. Ask yourself a few questions, such as why is this Union trying to organize employees in Riviera Beach? Is it because we're taking freight from their port in Miami? All of you know that over 40 percent of our ocean freight business for the Bahamas originates in Miami. Just consider that, because if you know it, then so does the Union. Is that why they're trying to organize up here, because they know if we have to operate under the ILA contract that the easiest and most obvious way for us to cut costs is to move down there where their port is? They see our trucks on the road, they have picketed us when we have made pick ups and deliveries. They can figure this out as easily as you or I can. Or do they want to organize you because they want to establish a new power base in Palm Beach? Either way, it is you who end up losing. As an example, do you know how the union referral system works? Did you know that under a union referral system, the Union can bring in as many people as it wants and put on that list and refer them out to work and that you can be sent out to work for a few hours or a few days, and then go to the bottom of the list and not be sent out again for weeks or months. Do you know that it's possible for a friend of the business agent to get a good job and work for a long time while those who are not his old buddies are "sitting on the bench" and don't have any work at all? Now I don't know what the Union is planning to do here, but if someone was coming up here all the way from Miami and trying to convince me to give him my hard earned money, I would sure ask those questions. And the funny part is, you can be putting your job on the line on March 18 and I mean that you can place your whole working future in the hands of these outsiders who are coming up here from Miami, and the funny part is they expect you topay for this. Now this doesn't make sense to me. It's very easy for you to be conned by some sharpies who may be trying to take advantage of you. If you want time to find out the answers, or if you just don't know the answers, then I urge you to vote no on March 18. You can believe that the Union is going to be around any time any of you want to change your mind and you can vote it in later. But don't make the mistake of voting it in now and then living to regret it and find you can't do anything about it. None of the five employees who testified about the March 16 speech or certain aspects of it remembered much of it as it was written. The references to a move to Miami, for instance, were, in their minds, much less hedged in with "ifs" or conjectures than are apparent from a careful reading of the text. Indeed, three of the employees, Huggins, Love, and Rudolph testified that Birdsall said he "would" move or would "definitely" have to move to Miami if the Union was voted in. Although I have accepted Birdsall's version of the speech, I can readily understand how the employees, hearing the speech as a whole, could have interpreted what Birdsall said as a threat to move to Miami if they selected the Union to represent them. I am convinced also that Birdsall meant to leave that impression with them. In connection with discussing the effect of their selecting the Union, why would he even mention that he wanted to continue operating at Riviera Beach because that is where he and his employees live and had their families except to suggest that their selection of the Union might result in a move? His question, "If we have to operate under the increased cost of an ILA contract, doesn't it make sense to do it in Miami and Fort Lauderdale where we don't have the added cost of transporting goods to and from Riviera Beach," seems clearly meant to leave the 'impression that 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company would move to Miami or Fort Lauderdale to offset transportation costs against the increased cost of an ILA contract. The same inference that the Company would move its operations in the event of a union victory, appears implicit in other questions posed by Birdsall. For instance, after stating that the Union must know that over 40 percent of the Company's ocean freight business for the Bahamas originates in Miami, he asked, "Is that why they're trying to organize up here, because they know if we have to operate under the ILA contract that the easiest and most obvious way for us to cut costs is to move down there where their port is?" As stated by the court in N.L.R.B. v. C. J. Pearson Company, 420 F.2d 695, 696 (C.A. 1), "It is true that a question may not be as strong as a positive statement. Nevertheless, the posing of a question indicates that there is some reason for asking it" and the questions posed by Birdsall, as those posed in Pearson, "suggested unpleasant answers." Veiled threats to move to Miami in the event of a union victory were also phrased in terms of a prediction as to the consequences of such an event. Thus, Birdsall predicted that if the Company had to operate under an ILA contract, which added considerably to the Company's cost, "then we are certainly, as businessmen, going to have to consider very strongly the necessity of moving our operations so as to reduce our cost." As the Supreme Court pointed out in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 618: [An employer] may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. . . . We therefore agree with the court below that "conveyance of the employ- er's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." In this case, the ILA had not even presented the Company with a contract and the Company had no reason to believe that it would have been unable to negotiate a contract with that Union which would enable it to continue operating profitably from Riviera Beach, even with some increase in the employees' pay.4 Birdsall's prediction that the Compa- ny might have to move its operations was not based on provable facts beyond his control; nor was the prediction a mere conveyance of a management decision already arrived at to close the Company's facility in case of unionization. Listening to the speech as a whole on the two occasions during the critical preelection period, the employees could hardly have failed to gain the impression that Birdsall was threatening to move the Company's operations in the event that they voted the Union in. I find that the Company on or about March 2 or 9 and again on March 16, 1971, in 4 The record shows, incidentally, that Birdsall sent the Union a letter on July 1, 1971, stating that he wished to give a 10-percent wage increase to his laborers. 5 See Truck Drivers and Helpers, Local Union 568 [Red Ball Motor speeches to its assembled employees, made veiled threats that if the Union was chosen at the polls, the Company would move its operations to Miami or Fort Lauderdale and that those employees who could not afford to move would lose their jobs. The Company thereby violated Section 8(a)(1) of the Act and interfered with the right of its employees to make a free and untrammeled choice in the election. A further objection to the speech, raised by the Union but not alleged by the General Counsel as an unfair labor practice, relates to Birdsall's statements in his written speech about the possibly harmful effect on the employees of an alleged union referral system. I am persuaded that this objection has merit. I refer to that part of the speech in which Birdsall told the employees that "Either way, it is you who end up losing," and, as "an example," asked whether they knew that under a union referral system the Union could bring in as many people as it wanted, put them on a list, and refer them out to work; "that you can be sent out to work for a few hours or a few days, and then go to the bottom of the list and not be sent out again for weeks or months." Birdsall then asked the employees if they knew "that it's possible for a friend of the business agent to get a good job and work for a long time while those who are not his old buddies are `sitting on the bench' and don't have any work at all." He warned the employees: "You can be putting your job on the line on March 18 and I mean that you can place your whole working future in the hands of these outsiders who are coming up here from Miami." To the Company's simple, apparently unsophisticated laborers, who then had regular jobs with the Company, this was a rather bleak future which Birdsall was suggesting as a consequence of their voting the Union in. Birdsall was thus implying that if the employees chose the Union to represent them, the Company might enter into an unlawful hiring arrangement with the Union, resulting in unfair and invidious discrimi- nation against some of the employees or applicants for employment. It is accordingly found that the Company thereby engaged in further conduct which interfered with a free choice of the employees at the polls.5 The Union contends that in these speeches to the assembled employees, the Company also interfered with their free choice of a bargaining representative in a number of other respects. It contends that Birdsall stated that if the Union came in and did not get what it wanted and went on strike, the Company would replace and discharge all strikers. The text of the written speech and a preponder- ance of the credible evidence does not support this contention. Birdsall, either expressly or by implication, was referring to economic strikers when he mentioned that strikers would be replaced and might have no job when they wanted to return. I am satisfied that Birdsall did not misrepresent the Company's legal rights in such strike situations. The Union's allegation that the Company interfered with a free choice in the election by unilaterally changing its Freight, Inc.] v. N.L.R.B., 379 F.2d 137 (C.A.D.C.); Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America [Goodyear Tire and Rubber Co.] v. N.L.R.B., 368 F.2d 12 (C.A. 5). BIRDSALL CONSTRUCTION COMPANY policy in regard to permitting visits to Birdsall's office and in regard to making loans to the employees is based upon the following facts. On September 4, 1970, prior to the Union's organizational campaign, the Company posted on its bulletin board and enclosed in the pay envelopes of the warehouse and yard personnel a notice to the effect that they should not enter the office unless strictly on business and should not loiter in the reception and lounge areas. This notice, similar to one posted 4 years earlier, had been prepared after the Company's bookkeeper, Isabella Dixon, had reported to Birdsall that some of the office employees had complained of the warehouse and yard employees coming into the office, loitering and disturbing them. The Union contends that when Birdsall, at the conclusion of his March 16 speech, told the employees that his door was always open and invited employees to come in to see him about any questions or problems they might have, he was changing the policy represented by the posted notice. I do not agree. An employee coming into the office area to speak with Birdsall would be coming there on business and could not reasonably be considered as violating the no- loitering rule. One or more of the employees interpreted Birdsall's invitiation that they come to see him about any problem they had as an invitation to apply for financial assistance and they did thereafter obtain loans from Birdsall.6 The record, however, is replete with evidence that the Company had frequently made loans to its employees for a number of years and its policy in this regard does not appear to have changed just before or after the election. The record does not support the Union's contentions in this regard.? B. Birdsall's Interviews with Individual Employees In addition to delivering the two speeches to his assembled employees, Birdsall also, as already noted, interviewed about 20 of the 34 employees in the bargaining unit between March 2 and 17 in an attempt to persuade them to vote against the Union. Again, as with respect to the speeches, his testimony regarding what he said to the individuals varies substantially from the testimony of the employee witnesses. Dawkins testified that about 1-1/2 weeks before the election-between the dates of the first and second speeches-when he was in Birdsall's office to obtain a loan and was about to leave, Birdsall asked him what he thought of the ILA. Dawkins replied that he had not decided which way he was going. Birdsall then advised him to think about it because the ILA was out to get the Company's freight and if it was voted in, the Company would have to move to Miami and some of the men would be without jobs because they could not move to Miami. He remarked that he had lived in Riviera Beach since his childhood and did not want to move and that he knew that the employees did not want to move either. He also 6 Two employees, Huggins and Love, testified that Birdsall invited them to come to the office if they needed a loan I believe that these employees misinterpreted Birdsall's invitation to come in and discuss any problem they had and credit Birdsall's denial that he invited any employee to borrow money. r Other allegations in the Union's objections to the election pertaining to alleged material misrepresentations of fact are not mentioned in its brief to 169 pointed out to Dawkins that his salary had increased about 20 percent since he had been working for the Company and that it could get better and that Respondent could do things for Dawkins that the Union could not do. Birdsall, on the other hand, testified that after loaning Dawkins some money, he asked Dawkins what his reactions were to the things Birdsall had said about the Union in his speech and Dawkins had replied that before the speech he had been "prounion" but after listening to the speech he was "not so sure." Birdsall did not recall what else he said to Dawkins on that occasion but denied making the other statements about moving to Miami which Dawkins ascribed to him. Huggins testified that on the day before the election Birdsall called him outside the trailer in which he was working to talk to him about the Union. Among other things, according to Huggins, Birdsall asked him what he thought about the Union. When Huggins replied that he had not thought much about it, Birdsall told him that if the Union got in, the Company would definitely have to move its operations to Miami because it would be 40 percent cheaper to operate out of that port, and that those employees without transportation would be out of jobs. He stated that his home was in West Palm Beach and that he did not want to move. He asked Huggins if he could move to Miami and Huggins replied that he definitely could not. Birdsall denied that he had questioned Huggins in the manner described by Huggins and testified that he had merely asked whether Huggins had any questions about the things Birdsall had mentioned in his speech. He denied making the other statements mentioned above about which Huggins testified. Love testified that on the day before the election, Birdsall came to him in the yard where he was working and asked him, "How do you feel about the Union?" Love replied, "I don't think much of it." Birdsall then launched an attack on the Union and its motives, told Love that he did not want to leave Palm Beach and knew that Love did not want to either but that he would "definitely" have to move to Miami if the Union came in. Birdsall's version was that he asked Love "if he were aware of all the implications that this union election had both for himself and the Company" and whether he had any questions about the upcoming election. He told Love, among other things, that 40 percent of the Company's cargo originated in Miami "and that it was a logical consideration for us to possibly reduce costs by moving the operation to Miami if in fact the Union was able to obtain a wage scale higher than what we presently had and that we could not offset that possibility by increased productivity, and, therefore, as businessmen we had to look at each aspect of this thing and I wanted him to be aware that this was a considera- tion." Rudolph testified that on the day before the election, Birdsall came to him in the warehouse where he was the Trial Examiner and the Union's contentions in those respects are not clear There was some name-calling by Birdsall and some broad general attacks upon the Union, which I believe the employees would be able properly to evaluate as campaign propaganda I doubt that such statements, even if untrue, would have any substantial influence upon the election results 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working, said he wanted to talk to Rudolph, and asked him, "Do you know anything about the Union?" When Rudolph replied that he did not, Birdsall asked, "Have you ever belonged to a union?" Again Rudolph replied in the negative. Birdsall thereupon launched an attack against the Union and its motives in trying to organize the employees and suggested that Rudolph vote against the Umon. Birdsall's testimony with respect to his interrogation of Rudolph was that it occurred in the period between his first and second speeches and that he asked Rudolph "if he understood the importance of this election and if he knew what it meant to belong or not to belong to the Union" and that when Rudolph replied in the negative, Birdsall asked him, "Have you ever been a member of a union? Can you tell me anything about it?" When Rudolph again replied in the negative, Birdsall gave his views about the Union and what it was attempting to do. He told Rudolph, among other things, that he thought the Union wasjust concerned with getting the employees' dues and fines and controlling the Company's cargo at the port of Palm Beach; that it was a Miami-based union; that it could, after bargaining with the Company, drive the Company's costs up, in which event the Company would have to consider means of reducing its costs; and that since one of the Company's costs was in trucking 40 percent of its tonnage from Miami to Palm Beach, "there is a possibility that the Company in order to reduce its trucking costs would consider moving to Miami or Port Everglades." Birdsall testified that his conversations with all of the approximately 20 employees he interviewed were in a similar vein. I am convinced that although Birdsall may not have made a threat to move to Miami in terms as explicit as the testimony of Dawkins, Huggins, and Love would indicate, he did make such a threat in terms less guarded than those embodied in the carefully phrased and edited speech which he read. His testimony regarding what he said in connection with a possible move to Miami in the event of unionization, was not spontaneously given but was for the most part slowly and guardedly spoken. I cannot believe that he would have spoken to the employees in his private interviews with them in the strained and unnatural manner displayed on the witness stand. He concededly wanted to persuade the employees to vote against the Union and-I think it more likely that in speaking personally to the employees, he would have talked in a more spontaneous fashion and in language they could more readily understand. However, even under his own version of what he said to them about a move to Miami, I would find that he made a veiled threat to move his operations there in the event of a union victory at the polls, and that this was in violation of Section 8(a)(1) of the Act and an interference with the free and untrammeled choice by his employees at the polls. With respect to the testimony about Birdsall's interroga- tion of the employees about the Union, I am convinced that he interrogated them in the manner substantially as they testified. However, the exact words he used are not important. Regardless of whether he asked the employee what he thought of the ILA, how he felt about the Union, and whether he knew anything about it, as the employees testified, or whether Birdsall asked the employee his reactions to what Birdsall had said about the Union, whether the employee knew what it meant to belong or not to belong to the Union, and whether he had ever belonged to a union, as Birdsall testified, this interrogation put the employee on the spot and required him to disclose his feelings about the ILA or unions in general or else to plead ignorance, as most of them did. As the Board stated in Struksnes Construction Co., Inc., 165 NLRB 1062, "In our view any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights." The questioning of the employees here involved in the context of the preelection campaign in which their employer was expressing opposi- tion to the Union in rather strong terms and making veiled threats to move its operations, clearly interfered with, restrained, and coerced them in the exercise of their organizational rights and constituted a violation of Section 8(a)(1) of the Act. Whether or not it also constituted an interference with their exercise of a free choice at the polls, I need not and do not decide , for Respondent's conduct in other respects already described requires that the election be set aside. CONCLUSIONS OF LAW 1. By making veiled threats to move its operations, with a consequent loss of jobs by employees unable to move, in the event the employees chose the Union to represent them, and by coercively interrogating employees about their union membership, views, and sympathies, the Company has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By its veiled threats to move its operations and by its suggestion to its employees that if the Union won, the Company might enter into a hiring arrangement with the Union whereby employees not in favor with the Union might not be able to work regularly, the Company has interfered with the exercise of a free and untrammeled choice in the election held on March 18, 1971. 3. The aforesaid unfair labor practices and other conduct by the Company affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require the Company to cease and desist therefrom and take the affirmative action customarily required to remedy unfair labor practices of the nature found. Having found that the Company's preelection conduct interfered with the exercise by employees of a free and BIRDSALL CONSTRUCTION COMPANY untrammeled choice in the election, my recommended Order will provide that said election be set aside and that a new election be directed. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:8 ORDER Birdsall Construction Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making veiled threats to move its operations in the event Local 1680, International Longshoremen's Associa- tion, AFL-CIO, is chosen as the employees' bargaining representative. (b) Coercively interrogating employees about their union membership, views, or sympathies. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 8 In the event no exceptions are filed as provided by Sec. 102.46 and Sec 102.69(e) of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 B 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 171 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Riviera Beach, Florida, facilities, copies of the attached notice marked "Appendix." 9 Copies of said notice on forms provided by the Regional Director for Region 12, after being signed by the Company's authorized representative, shall be posted by it 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 the Company to insure that said notices are not altered, defaced or covered by any other material. (b) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.1° IT IS FURTHER ORDERED that the election held in Case 12-RC-3774 on March 18, 1971, be, and the same is, set aside and the case be remanded to the aforesaid Regional Director for the purpose of conducting a new election at such time as he deems appropriate. 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." 10 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 12, in writing , within 20 days from the date of this Order, what steps the Company has taken to comply herewith."