Marathon LeTourneau Co.

MARATHON LE TOURNEAU CO. Marathon LeTourneau Company, Gulf Marine Divi- sion of Marathon Manufacturing Company and United Steelworkers of America, AFL-CIO. Cases 23-CA--4634 and 23-RC-3875 January 8, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 27, 1973. Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. We do not agree with our colleague that the statements by Hilder, Silva, White, and Wright to the effect that if the Union 's demands were too high and the Company couldn't afford the demands the Company would become noncompetitive and would close the operation are legitimate expressions of views. Instead, for the reasons enunciated by the Administrative Law Judge, we find that these statements were thinly veiled threats of plant closure if the Union won the election, and thus were violative of Section 8(a)(1) of the Act. Although an employer may lawfully predict the precise effects he believes unionization will have on his company, the prediction must be carefully phrased on the basis of objective facts to convey an employer's belief as to demonstrably probable consequences beyond his control.2 We can perceive of no factual basis for Respon- dent's prediction of possible plant closure. By its conduct of constantly referring to closings in other plants which had become unionized, and by its posting of the El Puerto editorial . Respondent created an atmosphere of fear of plant closure should the Union be victorious. In this context , we find that Hilder, Silva, White, and Wright conveyed the clear implication that Respondent would close the plant if the Union won the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 213 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Marathon LeTour- neau Company, Gulf Marine Dvision of Marathon Manufacturing Company, Brownsville, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Administrative Law Judge dismissed certain allegations contained in the complaint, as well as Objection 4 In the absence of exceptions thereto, we adopt these findings pro forma Chairman Miller concurs in the result but would not base any 8(a)(1) finding or his decision to set aside the election on the statements by President Hilder and Supervisors Silva, White , and Wright to the effect that if the Union's demands were too high and the Company couldn't afford to meet those demands, the Company would become noncompetitive and would close the operation While other unlawful threats were made herein, they do not, in the Chairman's opinion, transform legitimate expressions of views into violations of the Act With respect to Objection 9 concerning the raffle, in accordance with the reasons stated by him in his dissent in Electro-Voice, Inc. 191 NLRB 425, Chairman Miller would find the raffle alone to he sufficient ground for setting aside the election 2 IA.LR B. v Gzssel Packing Co, Inc, 395 U.S 575, 618 (1969) DECISION STATEMENT OF THE CASE BERNARD NESS. Administrative Law Judge : This pro- ceeding under Section 10(b) and Section 9 of the National Labor Relations Act, as amended, was tried pursuant to due notice on April 10 through 13, 1973, at Brownsville, Texas. The original charge and first amended charge were filed on January 8 and March 6, 1973, respectively, by United Steelworkers of America, AFL-CIO, herein called the Union.' The complaint, alleging a series of 8(a)(1) violations, was issued on March 7, 1973. The petition in Case 23-RC-3875 was filed by the Union on November 1, 1972.2 A Stipulation for Certification Upon Consent Election was approved by the Regional Director for Region 23 on November 22. A Board- supervised election by secret ballot was held on January 3, 1973, among the employees in the approved stipulated appropriate bargaining unit. Of approximately 1,600 eligible voters, 1,347 cast ballots, of which 473 were for the Union, 44 were cast for International Association of Machinists and Aerospace Workers, AFL-CIO and Unit- ed Brotherhood of Carpenters and Joiners of America, AFL-CIO (Joint Intervenors), 93 for International Broth- erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local #577, AFL-CIO, and 737 were cast against the participating labor organizations. There were 12 void ballots and 17 that were challenged. The challenged ballots were not sufficient in number to affect the results of the election . The Union herein filed timely objections to conduct affecting results of election on January 10, 1973. The Regional Director for Region 23 conducted an investigation of such objections and, on March 8 , 1973, issued his report on the objections and i The Union's unopposed motion to substitute the International rather than its District 37 as the Charging Party was granted 2 Unless otherwise indicated, all dates refer to 1972. 208 NLRB No. 39 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consolidated the complaint and representation cases for purposes of hearing.3 Three of the six objections on which the Regional Director ordered a hearing are encompassed in the allegations of the complaint. The remaining three objections contend: (a) the Employer called employees into the Employer's offices individually and in small groups and urged the employees to vote against the participating union ; (b) the Employer and one of the participating unions distributed what purported to be an official ballot prior to the election; and (c) a catch-all allegation. The issues involved in the unfair labor practice case, as framed by the allegations in the complaint concern alleged acts of interrogation, threats of plant shutdown or removal, discharge, elimination of overtime and reduction in wages, warning of the futility of selecting the Umon because the Company would reject all the Umon's demands, and soliciting employees to persuade other employees to reject the Union. Involved in these alleged acts are 12 supervi- sors.4 All parties were afforded full opportunity to participate in the proceeding.` Briefs have been received from the General Counsel, the Respondent, and the Union and have been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, is engaged in the manufacture and sale of off-shore dulling equipment, and maintains its principal office and place of business at Houston, Texas. At all times material herein, Respondent has operated a plant at Brownsville, Texas, which is the only facility involved in this proceeding. Respondent annually manufactures, sells, and ships from its facilities located within the State of Texas finished products valued in excess of $50,000 to its customers located outside the State of Texas. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and(7) of the Act. The complaint alleges, the answer admits, and I find that United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IT. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent's Brownsville plant began its operations in June 1971. In August 1972 it had about 1,400-1,500 employees and this rose to about 2,000 by December of the year. Employment is expected to reach 3,000. The welder- fitter classification comprises approximately 80 percent of 3 Three of the Union's objections were withdrawn 4 Upon motion of the General Counsel, minor amendments to the complaint were permitted- 5 The TAM was permitted to intervene at the hearing, the intervention .vas limited to the issues raised in the representation case 6 As Personnel Director Hagood testified, the first line supervisors were the workforce. The Company operates a training school to teach welding to its new employees. The first line supervisor is the leadman who has between 10-15 employees in his crew. Many of the approximately 100 leadmen were promoted from the ranks into the superviso- ry positions. Next higher in the supervisory structure is the assistant foreman or the foreman, depending on the size of the department supervised by the foreman. The Union began its organizational campaign early in 1972 and filed a petition on November 1 for an election. The Respondent, through Howard Jackson, its industrial relations manager, ran a supervisory training program for its foremen, assistant foremen, and leadmen. Commencing about November 1, when the petition was filed, the format of the training program was thereafter devoted exclusively to the union campaign. These meetings were held weekly and ran until sometime in December. The first such meeting was devoted to "Do's" and "Don'ts" relating to supervisory conduct and their discussions with employees. The supervisors were given lists of the "Do's" and "Don'ts" Subsequent meetings covered discussions of organized shipyards of other companies that had been closed, the Company's apprenticeship program as com- pared to programs of two of its competitors, restrictions on union conduct, the Company' s insurance benefits, and information concerning monetary losses to employees m the event of a strike. Pertinent material covering these subjects was given to the supervisors. The supervisors were instructed to discuss the union campaign with the employees-to give the Company's position-that it did not want the Union-and to explain to the employees the consequences that would befall them if the Union became the bargaining representatives As shown by later events, some supervisors, possibly because of their zeal or lack of sophistication, clearly exceeded the bounds of 8(c) in carrying out the message. Most of the allegations with which we are concerned turn on resolutions of the conflicting testimony of the supervisors involved and the employees to whom alleged unlawful statements were directed. The native tongue of many of the witnesses, both supervisors and employees, is Spanish. Although these witnesses also spoke English, it was obvious that a number experienced difficulty • in expressing themselves clearly in English. In determining whether alleged statements by supervisors were made, as testified to by the General Counsel's witnesses, both present and former employees, I have been concerned that what employees testified to may have been honest but mistaken impressions of what was said rather than what actually was said. In resolving credibility, I have borne in mind that the burden of proof is upon the General Counsel in the prosecution of a complaint. ' A substantial number of allegations concern alleged statements of plant removal or closure and elimination of overtime. It should be borne in mind that rumors were circulating all over the yard that if the Union came in, instructed to tell the employees in their crews "that if the company was organized by a union or any union and their demands became so excessive that our company was not competitive and could not be competitive in the open market place, that we may have to make the necessary adjustments." Explaining what he meant by "necessary adjustments." he stated the Company "had to be competitive or go out of business " MARATHON LE TOURNEAU CO. 215 overtime would be eliminated and the plant would be closed Most of the employees had been working 50 hours a week. Supervisors admitted that employees had raised questions concerning these rumors. Any finding of unlaw- ful conduct relating to the loss of overtime or closing of the yard will not be based merely because the rumors existed. It 's mentioned to portray the atmosphere that existed during the period with which we are concerned. B. The Conduct of Frank Maldonado The General Counsel alleges that on about September 6, Maldonado, Respondent's employee and community relations manager, told employees that Respondent would leave he area if the Union became the bargaining representative.? The -ecord disclosed that newly hired employees went through an orientation program conducted by Maldonado. In his presentation, Maldonado explained the structure of the Company, its operations, personnel policies, and the function of the training school. He followed written guidelines. He also had a prepared text concerning the Union's organizational campaign which clearly revealed the Company's opposition to the Union. It is not contended the text itself contained any unlawful threats. In support of this allegation, the General Counsel produced Valentin Castillo who is still employed by Respondent. Castillo testified he attended an orientation lecture at the time he began his employment in early September. He testified that during Maldonado's presenta- tion about the Company's opposition to the Union, Maldonado said that if the Union came in, the Company would probably move out and "leave the Valley."8 According to Castillo, Maldonado was not reading from any paper when he spoke about the Union. Maldonado denied that he made any comment about any plant removal. He testified that he read the text at each of his orientation addresses. Castillo appeared to be a more truthful, forthright, and honest witness as compared to Maldonado. I find Castillo's testimony more credible and find that Maldonado conveyed the threat that selection of the Union as the bargaining representative would probably res ilt in plant removal. Such threat is violative of Section 8(a)(1) of the Act .9 C. The Condact of Leadman Robert Melendez io The complaint alleges that Melendez threatened employ- ees with plant removal if the Union came in and with discharge for supporting the Union." The witness to this issue was Valentin Castillo. He testified that on November 8 he had picked up a union handbill that had just been distributed outside the training center when Melendez approached him. Melendez told him the Union was no good and he (Castillo) "could get fired for going with the union" and "If the union came in, 4 Par 7(a) of the complaint 8 Referring to the lower Rio Grande valley where the plant is located 9 It should he noted that this occurred prior to the filing of the representation petition and, accordingly, may not be considered as objectionable conduct 10 The complaint incorrectly referred to him as Mehndas, as did reference to him in the transcript early in the hearing. the company would probably close, and we would have to go back to our two-bit jobs." Melendez admitted convers- ing with Castillo about the Union but denies making the threats attributed to him. I found Castillo to be a more truthful witness than Melendez and credit his testimony. I therefore find that on November 8. Melendez' remarks to Castillo that he could be discharged for supporting a union and that the plant would probably close if the Union came in constituted unlawful threats within the meaning of Section 8(a)(1) of the Act. D. The Conduct of Leadman Jesse Silva The complaint alleges that Silva unlawfully interrogated employees, solicited employees to dissuade other employ- ees from supporting the Union, and told employees that the plant would close if the Union came in.iz In the latter part of November, Leadman Silva conversed with Francisco Gonzalez, an employee in his crew, about the Union.13 Gonzalez testified that Silva approached him and asked, "what I thought about the union." Silva then went on to compare the Respondent's apprenticeship program with programs in organized plants of competitors. Silva then said, "I've got confidence in you, and you can talk to the men better than I can. You should go ahead and talk to the men that we will be better off without the union." In response to the General Counsel's leading question, Gonzalez testified that Silva also told him "if the union came in that it was going to make matters worse for everyone and that the plant was going to close down and go away." However, on cross-examination, with respect to the remark about plant closing, Gonzalez testified as follows: Q. Now you said that Mr. Silva told you that the plant might close, is that right? A. Yes, sir. Q. Do you recall him telling you that if the union got in and they had too many tough working conditions and the wages got too high, and they couldn't be competitive, they might close. A. Yes, sir. Q. That's what he said, isn't it? A. Yes, sir. Silva admitted talking to Gonzalez about the Union and about the merits of the Respondent's apprenticeship program, as compared to other companies. He denied soliciting Gonzalez to persuade other employees not to support the Union. He did not specifically deny asking Gonzalez what he thought about the Union. His version of the reference to plant closing follows: "Well, I never told him that the company would close and go away, but I do recall telling him that if the union came in and the union demands were too high and the company could not meet them and they could not be competitive, under the contract, that they might have to move away." i i Par 7(b) and (c) of the complaint. i2 Par 7(d), (e). and (f) of the complaint In his brief, the General Counsel moved to withdraw 7(q) concerning further alleged unlawful conduct by Silva As I agree there was no testimony adduced concerning this allegation, the motion to withdraw 7(q) is granted 13 Gonzalez was terminated about a week before the hearing. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Gonzalez' testimony to the effect that during the conversation with Silva, he was interrogated regarding his union. sympathies to the Union and was solicited to dissuade other employees from supporting the Union. With respect to the plant closure, I am persuaded that Silva's version is the more accurate one. This is not to say that Gonzalez was not being truthful. In his later testimony, he did concede Silva made reference to possible union demands and the Respondent's competitive position facing it with union representation. Accordingly, I find that Silva's inquiry of Gonzalez' feelings about the Union constituted unlawful interrogation and Silva's attempt to have Gonzalez persuade other employees not to support the Union constituted unlawful interference and coercion in violation of the Act.i4 The question of whether Silva's remarks regarding plant closing violated 8(a)(l) will be discussed later in this Decision. E. The Conduct of Leadman Earl White The General Counsel alleged that White conveyed threats to employees that if the Union were successful in the election, overtime would be reduced or eliminated, employees would suffer a reduction in pay. the Respondent would move, and employees would be discharged for supporting the Union. Attributed also to White is the statement to an employee that if the Union made too many demands that Respondent could not afford, Respondent would move.is Guadalupe Araujo, an employee still with the Company, testified that on December 29, he was called into the foreman's shack by White. The conversation was devoted exclusively to the union campaign. White first asked him if he had any questions about the Union. Then White told him, "if the union wins, you probably get your paycheck cut down to about two eighty, and then probably we just close down and dust move out too, you know"; "if the union did come in, we lose the overtime"; and, "if you would get involved with the union and the company find out, you lose your job." Araujo testified that he was once again called into the shack, this time about December 29. White told him, "not to get involved in the union, because if I should get involved with the union, I might lose my job and things like that. That's all I can recall." Luis Gonzalez testified, on direct examination, that several days before the election he was called into the foreman's shack by White. His testimony, in pertinent part, follows: Q. Would you tell thejudge what Mr. White said to you on this occasion. A. That what did I think about the union. And-he showed me a little card that said, it had something to do about my-I can't remember what the card said. That I would be losing around-paying union dues, that I would be losing about $30 or something like that, out of my pay check. And I didn't pay attention to him. 11 Bisso Towboat Company, Inc, 192 NLRB 885; Great Atlantic & Pacific Tea Co. 167 NLRB 776, 782. 15 Par 7(i)--(1) and (dd) of the complaint 16 Gonzalez was terminated on February 1, 1973 Q. Can you tell us what you can remember what Mr. White did say? A. That's about all that I can remember. Q. That was pertaining to money, that you have just described? A. Yes, sir. Q. Do you recall anything else, any other subjects that he mentioned? A. No. because I didn't pay any attention any more. Just said yes or no and just ignore him. Q. Do you recall hearing him say anything with respect to the topic of what would take place if the union came in? A. Yes. About the company shutting down and leaving. Q. Did you hear him say anything about that? A. Yes. Q. Would you tell the Judge what you heard him say. A. About the company closing up and leaving, that's about it. JUDGE NESS: Who said this? Tu-IE WITNESS: Mr. Earl White. Q. (By Mr. Linton) Do you recall the subject of overtime being mentioned in the conversation with Mr. White? A. Yes, he told me about that, about not having overtime. Q. Beg your pardon? A. We were not going to have any overtime, if the union came in. Gonzalez said the conversation was in English and he has difficulty in understanding English.ib Vidal Rangel, still employed by the Company at the time of the hearing, testified that in late November, Leadman White talked to him in the foreman's shack about the Union. He testified that White told him if the Union won the election, the employees would have less earnings, overtime would be eliminated, and "if the company would not pay the union wages, it might go down, it would close up." Once again, on about December 28, White spoke to him about the Union in the shack. White's remarks about the Union, according to Rangel, follows: - A. Well, he told me about the union again. He was dust reminding me about the union. He said if the union would win the election, the company would close down. It would mean lower wages. It would mean no more overtime, just 40 hours and less wages. White admitted calling employees in his crew into the office where he discussed the union campaign with them.17 He testified he met with the employees to present the 17 White explained he held the discussions in the office because it was noisy in the plate shop where employees worked and one had to shout to he heard. I just ignore it. I don't want to know nothing about the MARATHON LE TOURNEAU CO. Company's position and showed them the material received from Jackson.18 Initially he asked the employees if they had any questions regarding the union handbills or rumors around the yard. He related that employees raised questions with him regarding rumors of plant closure, loss of earnings, and reduction in overtime and he responded. He admitted that where employees didn't raise these subjects, he himself did. With respect to rumors about the closing of the yard if the Union came in, he told the employees he didn't know the Company's position but he didn't think it would close. He told employees, "if a union placed extreme hardships on a company whereby they couldn't stay competitive, that they would either go broke or move out." In connection with loss of wages, he said he compared the Company's apprenticeship program to those of its competitors who were organized, pointing out that under the programs of the rival companies their wages would not be increased as rapidly. Concerning the loss of overtime, his version was that he told the employees he didn't know the Company's position but he didn't believe the Company would cut down the hours because of the amount of work to be done. He also testified he told Gonzalez that some employees were desirous of going to a 40-hour week and if the Union came in, the Union would attempt to negotiate a reduction in overtime. He specifical- ly denied making the threats attributed to him by Araujo, Luis Gonzalez, and Rangel. I find White's account of his conversations with the employees more convincing and credit his denials regard- ing the remarks attributed to him. Both Gonzalez and Rangel appeared uncertain while testifying, evidencing only a hazy recollection of what White had said to them. Elsewhere in this Decision I found Araujo an unreliable witness. I therefore conclude and find that the facts do not reveal that White threatened the employees with loss of overtime, reduction in pay, or that they would be discharged for supporting the Union. Accordingly, I recommend that par. 7(i), (1), and (1) of the complaint be dismissed. The issue of the propriety of White's credited remarks about plant closure will be discussed later in this Decision. F. The Conduct of Leadman Arturo Buentello The General Counsel alleges that Buentello told employ- ees on about November 24 they would have a better chance to make first-class welders if the Union did not come in. (Par. 7(m) of the complaint.) On January 2, 1973, the day before the election, Buentello allegedly told employees that if the Union won the election, those employees who signed union cards would be put on probation. (Par. 7(ee) of the complaint.) Employee Manuel Nunez, called by the General Coun- sel, testified that on November 24 Leadmen Buentello and Barrero met with their crews jointly and discussed the Union. Nunez testified that at this meeting, Buentello told the employees that it would take about 4 years to become a first-class welder with the Union; without a union it is Resp Exh 14 This included the list of organized shipyards of other employers that had closed-] 9 in number 19 Par. 7(n) and (o) of the complaint 20 He was terminated on December 18, 217 wouldn't take so long. Nunez admitted that Buentello made reference to the fact that union contracts provided that it would take as much as 4 years to reach the top rate of pay. Nunez also related that on January 2, the day before the election, as he was leaving the yard, Buentello told him: A. He said that if the umon won the election, people who sign cards for the union afterwards, would be put on probation for about three-two months-two to three months. And then he said for everybody to go vote, because they were going to raffle a. TV set. Buentello admitted discussing the apprenticeship pro- grams at other companies under union contracts. As to the specifics of the discussion on this subject, his testimony follows: A. Again, on this question, I don't think I told the people anything like that. Again, I only-I expressed the fact to the people that in case a union would take into effect something like an apprenticeship program, that it would take these people that much time to accomplish what they could accomplish in a short time with the company. Buentello denied telling Nunez that employees who signed cards would be put on probation. He testified that as he was handing out timecards to the employees that day, he told them they should vote in the election the following day and that even if they signed union cards they didn't have to walk out in case of a strike. He explained he made this remark in response to such question posed to him by a number of employees who were concerned because they had signed union cards. Accepting either version of the November 24 discussion, the remarks do not rise to the stature of an unlawful promise of benefit or threat of reprisal and I so find. An employer is privileged to point out the advantages of its existing wage scale program as compared to those of organized companies. With respect to the January 2 conversation, I credit Buentello's version and find that he did not tell employees that those who signed union cards would be put on probation if the Union won the election. Accordingly, I recommend paragraph 7(m) and (ee) of the complaint be dismissed. G. Conduct of Leadman Marlin Martinez The General Counsel alleges that on about November 27, Martinez interrogated employees and threatened them with elimination of overtime if the Union came in.19 The General Counsel's witness on this issue was Jose Garcia 20 According to Garcia, a few days after Thanksgiving, he was called into the assistant foreman's office by Martinez where Martinez spoke to him about the Union.21 Garcia related that Martinez spoke of the pending election, the secrecy of the ballot, safety and wages. Martinez also said, "You know if the Union comes in here, your overtime will 2i The "office" is a trailer house converted into an office. Garcia testified Martinez had said he wanted to talk to him in the office-that it was cold outside-Garcia agreed it was cold. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be cut off, to 40 hours." Martinez also asked him why he wanted the Union.22 Martinez admitted he engaged Garcia in conversation about the Union in the office, as he did the other members of his crew at various times. He testified he asked Garcia how he thought he would benefit from the Union. He admitted asking other employees in his crew the same question when he discussed the Union with them. With respect to the discussion on overtime, Martinez testified as follows: And we went on to the conversation then and he said-he says, "If the union come in, would we go back to eight hours anyway? JUDGE NESS: Mr. Garcia said this? THE WITNESS: Yes. He said he would rather work eight hours instead of ten. I said this is a possibility, yes. The overtime might be cut down or a third shift be put on, to take up the overtime. Or they could just stay at the same shifts we are now and just double the manpower. The conversation didn't last over ten minutes, at the most. In rebuttal, Garcia denied he had told Martinez he did not favor working overtime. He in fact desired the overtime work. I credit Garcia's account of the discussion with Martinez and find the questioning as to why he wanted the Union to be an unlawful form of interrogation proscribed by the Act in violation of Section 8(a)(1). Moreover, I find that Martinez' admitted interrogation of other employees in his crew to be unlawful. I also find it was Martinez who raised the overtime issue and who categorically told Garcia that the selection of the Union would result in the loss of overtime. I find this to be a threat in violation of Section 8(a)(1) of the Act. In this connection I have particularly noted that Martinez testified he tried to get across to the employees they would be better off with the overtime work they were then performing. Interestingly, in his account, he did not refer to the possibility that elimination of overtime may have been the Union's position. H. The Conduct of Leadman Ruben Barrera The General Counsel alleges that about December 1, Barrera told employees that if the Union came in there would probably be a strike because Respondent would turn down whatever the Union asked for in negotiation 23 Manuel Nunez credibly testified that Berrera came up to him while he was working and made the statement described above. This was not specificially denied by Barrera who testified at length regarding his conversation with Nunez about the Union. Nunez further testified that 22 Garcia conceded it was common knowledge he favored the Union and that Martinez was aware of it 23 Par 7(p) of the complaint 24 It appeared clear from the record that the reference to floating the pontoons down the river meant moving part of the Company's operations elsewhere. Although the complaint does not specifically allege this additional remark as an 8(a)(1) allegation , this issue was fully litigated and has been duly considered 25 In Nunez' testimony, the transcript reflects that the reference by Barrera was to employees who had signed union cards. None of the parties have requested any correction to the record in this respect My recollection in this same conversation, Barrera told him that if the Union won the election the Respondent would "probably float the pontoons down the canal; that only the men who had signed cards for the union would be working." 24 Barrera admitted talking to Nunez, as well as,to all other members of his crew, about the Union. He specifically denied telling Nunez that the Company would float the pontoons elsewhere if the Union came in and that only those who hadn't25 signed union cards would be permitted to work. Nunez appeared to be a credible witness.26 On the other hand, Barrera did not appear to be convincing. Barrera acknowledged the rumor was all over the yatd that the Company would move after the election and that his employees asked if it was true. His testimony does not show how he responded. During his examination, when he was asked the meaning of "floating the pontoons down the river," and if it meant that the Company would have this work done elsewhere, he responded, "Well, if they were having trouble negotiating or stuff like that, I guess." Accordingly, I credit Nunez and find that about December 1, Barrera told him that there would probably be a strike because Respondent would turn down whatever the Union asked for in negotiations. Such expression was designed to show the futility of selecting the Union as the bargaining representative; the inevitable result would be a strike because the Company would have a closed mind in bargaining negotiations and constitutes a threat in viola- tion of Section 8(a)(1) of the Act. I also find in this same conversation Barrera told Nunez that part of the Compa- ny's operations would be removed if the Union was successful in the election and thereafter work would be available to employees based upon whether they had signed union cards. Such statement clearly constituted an unlawful threat of reprisal violative of Section 8(a)(1) of the Act and I so find. 1. The Conduct of Assistant Foreman Tom Ashley The General Counsel alleges that about December 7, Assistant Foreman Ashley engaged in unlawful conduct by telling employees that "he had worked for companies where a union came in and the companies were shut down" and "that overtime was eliminated when unions came in." 27 Employee Reynaldo Rocha28 testified another employ- ee, Cerillo, and he were called into a little shack in the yard by Ashley where Ashley talked to them about the Union.29 He described the shack as one used by the leadman and timekeeper as an office for preparing reports and time- cards. Rocha's testimony about this conversation follows: is that the transcript correctly reflects what was said at the hearing Regardless of the group of employees referred to, the statement, in any event, would constitute an unlawful threat. 26 Elsewhere in this Decision, I did not rely on Nunez testimony concerning alleged unlawful conduct of Leadman Buentello-see Sec. F, above. However, with respect to his conversation with Barrera , he appeared more positive. 27 Par. 7(r) and (s) of the complaint, respectively. 28 His employment with the Company terminated on January 24, 1973 29 Cerillo was not called as a witness. MARATHON LE TOURNEAU CO. So he begins his conversation by saying, does he know election time is coming up? We said , "Yes, sir." He said , "Have you ever voted for a union election?" We told him, "No." So he begins by saying how we were going to vote, with an X, and nobody will know how we voted, or for who we voted. So he keeps on saying-well, he draws these four boxes, you know, and he puts the name of the union and no union, four boxes. So he kept on talking and then he begin by saying that he had worked in companies where unions came in and they would shut down. So he keeps on, and he says, you know, there were-since-there wasn't any union dues taken out of our checks, and we told him no, sir. And he says, if union comes in, there will be dues deducted. And he said that if the unions came in, our overtime will be cut down. And he said that union were no good, because he had worked for companies that unions came in and they were closed down. Then he kept on talking about the umon, and all that, and then he said, "We appreicate you very much, if you guys put an X on-I think it was the first box, for no union, so we ended our conversation there. With reference to overtime, later in his examination, Rocha testified, "No sir. The way he told me, he said there were many jobs under unions and the men work only 40 hours." Ashley testified that leadmen had reported to him some employees did not understand the election procedures. It was for this reason that the leadman sent Rocha and Cerillo to him. Ashley conceded he discussed the mechan- ics of the election and the secrecy of the ballot. He specifically denied discussing any plant closures or his experience where he had worked. He also denied saying that overtime work would be cut if the Union won the election. Ashley impressed me as a sincere and candid witness and I credit his denials. Accordingly, I recommend Paragraph 7(r) and (s) of the complaint be dismissed. J. The Conduct of Leadman Virgil Jaurequi The General Counsel alleges that on about December 18, Jaurequi asked employees for their opinion about the Union; about December 28, told employees that if a union were to come in, the Company possibly would move, and employees might be cut back to 40 hours.30 The witnesses to this issue were Jaurequi and employee Rogelio Garza.31 Garza testified that on December 18, while he was working, Jarequi approached him and asked what he thought about the Union coming in and why he wanted it. Jaurequi, on the other hand, testified that it was indeed Garza who initiated the conversation by asking Jaurequi if he wanted the Union. It was then that Jaurequi inquired as to why Garza wanted the Union. Jaurequi's account of this conversation did not nng with sincerity whereas Garza appeared to be a more truthful witness. I therefore credit Garza and find that on December 18 Jaurequi unlawfully interrogated Garza in violation of Section 8(a)(1) of the Act. Again, on December 28, this so Par. 7(u). (y). and (z) of the complaint , respectively 31 Garza was terminated about 3 weeks pnor to the hearing 219 time in the locker room , Jaurequi spoke to Garza about the Union. According to Garza, Jaurequi told him: He told me, "Well , you know if the union comes in, that will cut out the working hours and work only 40 hours a week. Or even there's a possibility that the company will go away, go some place else, move some place else." Jaurequi admitted conversing with Garza in the locker room about the Union . He testified that Garza mentioned a rumor going around that the Company would move away and "something about reducing the hours." His response to Garza was: I drew him a picture, stating on these hours that mainly a union is interested in more people working for the company. There's four persons working for the company working ten hours apiece . That's two hours overtime apiece, that's eight hours. In other words, four people taking the place of one individual. That's what I told the men. In response to a question by Respondent's counsel as to whether he spoke to Garza about the rumor regarding the Company moving away, he stated, "No. No, I don't remember it." I find Jaurequi's denial unconvincing. It seems hardly likely that Garza would raise the questions about moving and reduction in hours but yet Jaurequi would discuss only the reduction in hours. I find Garza's account more convincing and find that on December 28, Jaurequi told Garza that if the Union came in, the hours would be reduced to 40 hours and the Respondent possibly would move away. Such expressions clearly conveyed unlawful threats of reprisal in violation of Section 8(a)(1) of the Act and I so find. K. The Conduct of Leadman William Wright The General Counsel alleges that about November 14, Wright told employees that if the Union came in, wage increases would be slowed down , the Company would probably close the facility, and the hours of employees would be cut to 40 hours.32 In support of these allegations, the General Counsel presented Juan Hernandez who is still employed by the Respondent . Hernandez testified Wright spoke to him about the Union somewhere in mid-November . Present also was another employee, Windhause , who was not called as a witness. According to Hernandez, Wright pointed out that under apprenticeship programs in organ- ized plants it would take 4-5 years to become a first class welder as compared to Respondent's more favorable program. Wright also told them the Union didn't believe in overtime and the overtime would be cut down if the Union came in . Wright showed him a document listing and said, "these are shipyards that closed down, due to union demands. That if the union came into Marathon , that that would probably happen here." Leadman Wright admitted having a conversation with 32 Par 7(v), (w), and (x) of the complaint. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hernandez, together with several other employees about the Union. With respect to subject of closing the yard, Wright's version is as follows: A. Well, I believe I covered the shipyards first. I went down and I read the shipyard names, where they were located, the fact that they had gone out of business, and the unions that they had, was on the sheet. I told them, these are unions-I mean, these are yards that went out of business and that had unions. And I believe one employee asked me-it was Juan and Phil Windhause and two or three other employees working on organized shipyards that had closed down (G.C. Exh. 2) the slab, and I went up to Juan-Juan Hernandez-I went up to Juan and I was explaining it to him, and the other employees came up around me. And I told them, "These are the yards that had unions and went out of business." And someone asked the question, "How could a union cause a company to go out of business?" And I said, "Well, if the union demands-" "If union demands are too high and the company can't meet these demands, that the union could probably go on strike. And if they struck too long or too much, the company would lose competition-" I mean, "They would lose customers, and go out of business. They wouldn't be competitive. * * * * Q. In connection with the list of shipyards that had closed that you showed them, did you make the statement that this was a list of shipyards that had closed down due to or because of union demands? A. I don't remember making that statement. What I remember is the man asking the question, "How could a union cause a yard to go out of business?" Now they might have assumed that those yards went out of business because of that, but I don't remember saying that those yards went out of business because of union activity. I don't remember saying that. His version of the discussion regarding the comparison of appren, iceship programs of other companies with the Company's program does not differ in any appreciable degre ; from that of Hernandez. Wright was not questioned regarding any statement he made to the employees about the reduction in overtime. With respect to the comparison Wright made of the apprenticeship programs, I view such statements as privileged. It would be unduly straining to conclude that such statements should be interpreted to mean that with the success of the Union, wage increases would be slowed do, n, as alleged in paragraph 7(v) of the complaint. Accordingly, I recommend this allegation be dismissed. Concerning the alleged statement about reduction in overtime, Hernandez appeared to be a truthful witness. In absence of any denial by Wright, I will credit Hernandez and find that Wright told him that if the Union came in, 33 G. C Exh. 3, 4, and 5. 34 The December 9 editorial mentioned that the Union forced Pan the overtime would be cut. Such statement constitutes an unlawful threat violative of Section 8(a)(1) of the Act and 1 so find. With respect to the issue of the possible closing of the yard, this presents a credibility issue not so easy to resolve. Both witnesses agreed that they discussed other shipyard closings, that the list of companies was shown to Hernandez and that there was a discussion of "union demands." I am persuaded Hernandez' testimony on this issue was an honest interpretation of what he believed was said but not what was actually said. I therefore credit White's testimony relating to the plant closure. The question of whether his remarks regarding plant closing violated the Act will be discussed later in this Decision. L. The El Puerto Editorials The El Puerto is a weekly newspaper of general distribution published in Brownsville, Texas, and printed in Spanish. The Respondent posted on its bulletin boards the English translations of the newspaper's editorials published on December 9, 16, and 23.33 It is the contention of the General Counsel that by posting these editorials on its bulletin boards, the Respondent adopted the views expressed in the articles, thereby threatening employees with loss of their jobs. (Par. 7(t) of the complaint.) I find it unnecessary to discuss all the representations and statements made in the editorials in issue. Clearly the editorials expressed the antiunion attitude of the publisher and were aimed as appeals to employees of Respondent to reject the Union. Had there been no statements which could be construed as unlawful, assuming responsibility attaches to Respondent, no further discussion would be necessary. However, the December 23 issue, posted by Respondent on its bulletin boards on December 26, contained the following statement: "If the Union wins, we can assure you that there will be total disorder and all the workers of that company will meet the same fate as those at Pan American that had to shut its doors."34 Such statement expressed a clear threat of economic reprisal. The publication of such threat in the newspaper itself cannot be considered as a violation of the Act in absence of any agency relationship or ratification by the Respon- dent. There is no contention made that the newspaper was acting as agent of the Respondent. I find however, that under the circumstances described herein, Respondent threatened the employees with plant closure by posting the December 23 editorial. We must bear in mind that rumors were abounding throughout the yard of plant closure if the Union were successful and became the bargaining repre- sentative. The record discloses that supervisors themselves were aware of these rumors and that employees had questioned them about the truth to these rumors. In some cases, supervisors did little to allay the fears. In other cases, the supervisors lent support and confirmed the rumors.3' This matter of possible plant closure was a matter of concern and apprehension to the employees. Here the American to shut down 35 Leadmen Maldonado. Melendez. Jaureqw, and Barrera MARATHON LE TOURNEAU CO. 221 Respondent did more than passively enjoy the benefits of the ominous threat contained in the editorial.36 The Respondent did not lie dormant as perhaps it may have been legally entitled to; the Respondent posted the editorial on its official bulletin boards, thereby lending support and credence to the answer to the open and crucial question of concern to the employees-will the Company close down the yard if the Union comes in? Under these circumstances, the Respondent, by posting the December 23 editorial, created a situation whereby employees would reasonably believe that the views expressed in the editorial reflected those of Respondent-that the yard would shut down if the Union came in. In view of the foregoing, I find and conclude that Respondent, by its conduct, threatened the employees with plant closure if the Union were successful in the election, in violation of Section 8(a)(1) of the Act.37 M. The Speeches by Company President Hilder and Electrical Supervisor Joe Marks On November 22, Hilder delivered speeches concerning the union campaign to six different assembled groups of employees, twice at the training center and four times in the auditorium at the plant. Hilder had a prepared text (Resp. Exh. 15) and each of his talks, except the first at the training center at 7:30 a.m., was recorded on a tape.38 Except for the first talk at the training center there were departures from the prepared text, as the Respondent concedes. Each tape was transcribed and the typewritten transcriptions were received in evidence after a proper foundation was laid for their admission. (Resp. Exh. 21 through 25.) The tapes themselves were available at the hearing. Likewise, on December 29, Hilder delivered speeches to four different massed groups of employees. Hilder again had a prepared text but deviated somewhat. After each of his talks, they were repeated in Spanish by Joe Marks. The speeches of both men were recorded and typewritten transcriptions were received in evidence upon a proper foundation being laid. (Resp. Exh. 16 through 20-Hilder; Resp. Exh. 27 through 30-Marks.) These tapes also were available at the hearing. The General Counsel contends that on November 22 and on December 29 Hilder, in his speeches, threatened the employees with plant closure and elimination of overtime if the Union became the bargaining representative.39 The 36 See Monroe Auto Equipment Co, 159 NLRB 613, enfd 392 F 2d 559 (C. A 5, 1968), cert. denied 393 U.S. 934. 17 Hamburg Shirt Corporation, 156 NLRB 511, enfd 371 F.2d 740 (C A.D C,1966) 38 This first speech at the training center at 7 30 a.m was not recorded because of failure to activate the equipment when the speech was given 3'1 Par. 7(g) and (b) of the complaint-the November 22 speech, Par 7(aa) and (bb)-the December 29 speech 40 Par 7(cc) of the complaint 4i She was on sick leave when Ililder delivered the December 29 speech. 42 From Resp Exh 15 "The people out at Ices decided to let the union come between them and their company You probably know some of those people Ask them if the union looks after their interests You know Ices laid off 300 people recently-ask them if the union helped! We know of another good example of how this same union operates From the things that have happened at our Waco plant The General Counsel also alleges that Marks, in presenting the Spanish translation of Hilder's remarks on December 29, told the employees that if the Union won the election Respondent would move 40 Five of the General Counsel's 11 witnesses testified as to alleged threats made by Hilder in the course of his speeches-Araujo, Bauer, Luis Gonzalez, Hernandez, and Rangel. Significantly, the other witnesses were not ques- tioned about the speeches. Some of the witnesses who testified as to the alleged threats appeared to be testifying honestly but their testimony was vague and uncertain, and from my observations of them as they testified, they only had a hazy recollection of what actually was said. Bauer was the only witness for the General Counsel concerning the 7:30 meeting at the training center on November 22-the meeting that was not taped.41 Her testimony in substance was that Hilder said with the Union coming in, the plant would close down if the Company could not meet the demands of the Union. Hilder also named several plants that closed down because the Union came in. I am convinced that although Bauer appeared to be testifying truthfully, her recollection of what was said was based upon a misunderstanding of what was said, rather than what actually was said. In this connection, I credit the testimony of Howard Jackson, industrial relations manager and John Austin, administrative assist- ant to President Hilder, that they followed the text as Helder spoke and he followed it verbatim. After examining that portion of the text relating to plant closings, it becomes apparent how Bauer would honestly reach the conclusion as to what she thought Hilder had said.42 Luis Gonzalez testified that at both meetings Hilder spoke of plant closings and elimination of overtime43 but based upon my observation of him on the stand and listening to him testifying, it became apparent that he had no clear recollection of what was actually said by Hilder. Rather it appeared to me that he was relating only his ultimate conclusions of what he thought was said. For example, when asked what he recalled that Hilder said at the December 29 meeting, he said, "Well, I guess about the union coming in, we would have no overtime, and that's about it." When an attempt was made to refresh his recollection of anything else said, he added, "Well, that the company would close. Well, really, I don't remember." Araujo appeared to be an unreliable and unconvincing people who formerly operated that plant had a government contract, and the union organized those employees. When the union's demands became too high , the company gave up their contract and closed the plant because they couldn't be competitive. Two years later we opened the plant and got a new contract with the government . But for two whole years, from 1970 to 1972. those employees were out of work We have hired them back the same as we hired you-at Marathon rates and with Marathon benefits. Those employees are saying to each other "From 1970 to 1972-what did the union do for you?' Most of the people who live around here also remember that Pan American and Rockport shipyard plus some other established plants here left after the unions came in and organized their people-because they couldn't afford the union's conditions. If we were to get a union and become non-competitive within our industry, that would happen to us I say to you now- suck with us and don't let that happen to you 43 He was present at the speeches given in the auditorium in the late afternoon. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witness who appeared determined to recall only what he considered detrimental to Respondent's case.44 He testified that Hilder on both November 22 and December 29 said the Company would close down the training center. That was all he remembered being said. Responding on cross- examination as to various other topics having been discussed, his flat responses repeatedly were that he didn't recall. Under the circumstances I do not credit the testimony of Luis Gonzalez or Araujo and find the transcriptions of Hilder's speeches given in the auditorium in the late afternoon on both dates more reliable. (Resp. Exh. 19 and 25.) Araujo also testified that in Marks' presentation in Spanish of Hilder's speech of December 29, Marks said, "In the event the union should win, we will have td leave here. We will go." Transcriptions of Marks' speeches were received in evidence-both the Spanish version and then the translation back into English (Resp. Exh. 30 and 34). The transcription does not reveal any language resembling that attributed to Marks by Araujo. Considering my unfavorable impressions of Araujo as a witness and taking into consideration that Araujo was the only witness who testified as to this alleged threat despite the attendance of several hundred employees at this meeting, I find the transcription more reliable. Under the circumstances, I find that Marks did not make any threats of plant removal if the Union came in. The record does not disclose which of the meetings in the auditorium Rangel attended. Hernandez attended the 10:30 a.m. meeting in the auditorium on November 22. Hernandez was not questioned about the December 29 meeting. Both testified that at the meeting they attended on November 22, Hilder said overtime would be cut out if the Union came in. But only Rangel attributed any statement to Hilder regarding plant closure. Neither witness appeared to be certain in his account. I have considered the number of employees in attendance at the meetings, the apparent hazy recollection of the witnesses, and the limited testimony as to the alleged threats. Under these circumstances, to the extent there is any conflict between the transcripts and the General Counsel's witness- es, I find the transcriptions the more reliable. I find it unnecessary to comment upon each of the statements in Hilder's speeches. Undoubtedly, Hilder made it perfectly clear that he was adamantly opposed to the Union. I have reviewed the transcripts and they contain no unlawful threat of elimination of overtime. Accordingly, I shall recommend that paragraph 7(h) and (bb) of the complaint be dismissed. With respect to his remarks concerning the possibility of plant removal, I shall discuss this issue in the next section of this Decision. N. Further Findings Regarding Plant Closure Apart from the clear and outright threats of plant closure as found above, remaining for determination is the lawfulness of the more subtle statements on this subject made by Hilder in his November 22 speech 4s and by Leadmen Silva, White, and Wright. In substance, the theme was to the effect that if the Union's demands were too high and the Company couldn't afford the demands, the Company would become noncompetitive and would close the operation. In the Gissel case,46 the Supreme Court articulated standards to determine whether statements of possible effects of unionization are permissible. ... Thus, an employer's right cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in Section 7 and protected by Section 8(a)(1) and the proviso to Section 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former. because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear ... . ... an employer is free to communicate to his employees any of his general views about unionization or any of his specific views about a particular union, so long as the communications do not contain a `threat of reprisal or force or promise of benefit.' He 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 facts to convey an employer's belief as to demonstrably probable consequences beyond his control . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without protection of the First Amendment. In my view, the statements by Hilder, Silva, White, and Wright were thinly veiled threats of plant closure if the Union won the election, violative of Section 8(a)(1) of the Act. It should be remembered that the rumor of plant closure if the Union won the election was rife among the employees. The Respondent was aware of the employees' apprehensions. Its posting of the El Puerto editorial added substance to the rumor. It was in this type of atmosphere that we must consider the conduct discussed herein. By constantly referring to the unionized shipyards that had closed, the Respondent was capitalizing on the fears of the employees of plant closure and had only one purpose-to convey to the employees that these closures were effected because the plants were organized.47 There is nothing in the record showing any causal relationship between the closings of the yards and the fact that they were unionized. The constant reiteration of closings at other companies accompanied by raising the specter of possible closing of 44 He was likewise present at the speeches given in the auditorium in the 47 As Leadman Wright testified. "Now they might have assumed that late afternoon . those yards went out of business because of that [union demands] but I 4.5 See fn. 42, supra don't remember saying that those yards went out of business because of 46 N.L KB. v. Gissel Packing Co, Inc, 395 U.S. 575, 618 ( 1969). union activity." MARATHON LE TOURNEAU CO. the Brownsville operation could scarcely have failed to have a chilling effect upon the rights of the employees to determine for themselves freely whether they wanted a bargaining representative. The Respondent here estab- lished a straw man and manufactured links in a chain leading ultimately to a closing of the operation. It referred constantly to the unionized yards that were closed with the implication the unions were responsible. It then referred to excessive demands the Union may make upon it, when in fact no election had yet been held nor could the Union hardly be in a position to make any demands. This was followed by the hypothetical observation that the Compa- ny would not be able to withstand the demands and remain competitive. The plain implication then was that the Respondent would then shut down the operation. Accordingly, I find that the statements by Hilder. Silva, White, and Wright referring to plant removal or closure to be threats of reprisal if the Union were successful in the election, in violation of Section 8(a)(1) of the Act. 111. THE OBJECTIONS TO THE ELECTION The Union filed nine objections. The Regional Director ordered a hearing on Objections 1, 2, 3, 4, 7, and 9. Objections 5, 6 and 8 had been withdrawn. In his brief, the Union counsel moves to withdraw Objection 7 which is hereby granted. A. Olyections 1, 2, and 3 These objections allege unlawful interrogation, threats of loss of benefits, and reduction in the work week. To the extent that I have found Respondent violated Section 8(a)(1) during the period following the filing of the petition, I find merit to Objections 1, 2, and 3. Included in this finding are the unlawful interrogation by Silva, Martinez, and Jaurequi; the threats of plant closure or removal by Barrera, Hilder, Jaurequi. Melendez, Silva, White, and Wright, and by the posting of the El Puerto editorial of December 23; the threats of loss of overtime by Martinez, Jaurequi, and Wright; the threat of discharge for support- ing the Union by Melendez; Silva's solicitation of Francisco Gonzalez to dissuade other employees from supporting the Union; and the warning by Barrera that there would be a strike because the Company would reject all the Union's demands. B. Objection 4 The Union charges the Employer with calling employees, individually, or in small groups, into the Employer's office and urging them to vote against the participating unions under circumstances that interfered with the election. The facts reveal that several of the supervisors48 called 411 Ashley, Martinez, Silva, and White 49 97 NLRB 499. See Three Oaks, Inc., 178 NLRB 534. 50 On the first day of the hearing, the Employer objected when the Union first attempted to introduce evidence concerning the raffle, his position being that he had not received any notice prior to the hearing that this was to be an issue The raffle incident had been investigated by the Regional Office and during such investigation the Employer had presented his position concerning this issue The Acting Regional Director's report directing a hearing made no reference to the raffle. Nor was the Respondent informed poor to the hearing that the subject of the raffle would be one of 223 employees of their crews into what was described as the "office" or "shack" where the supervisor presented the Employer's views and opposition to the Union. The places where these discussions took place were structures where blueprints and other papers were stored, where timecards were prepared, and were used by the foreman, leadmen, or timekeepers. Under the circumstances, I do not consider such sites to be the locus of managerial authority within the meaning of General Shoe Corporation.49 Accordingly, I find no merit to Objection 4. C. Objection 9 This objection is a general catch-all objection referring to "other acts not specifically set forth." Under this objection, the Union contends that the Company raffled off a color television set under what it considered circumstances which prevented a fair election.50 The facts reveal that the employees were notified at least several days before the election by the Employer that a color television set would be raffled off.51 The employees were advised that only those that voted in the election would be eligible to participate in the raffle. Eligibility to participate was not contingent upon how the employees voted. The election was conducted in the Employer's auditorium on January 3 during two periods: from 5:30 to 8:30 a.m. and from 3 to 6:30 p.m. After the employees cast their ballots they exited through a door leading into a long hallway. A sign was posted at the exit containing an arrow pointing to the direction in which to proceed to register for the raffle. A table was situated down the hallway between 40 and 140 feet from the exit where employees lined up to register for the raffle. Several employees had been assigned by the Employer to sit at the table and process the voters as they came to register.52 As the voters approached the table they were asked to confirm that they had voted and then had to identify themselves by name and badge number. Their names were checked off on a copy of the Excelsior list-the identical list of eligible voters as the one used at the polls by the Board's agent and observers. The registrant was given half of a ticket and the other half was deposited in a box.53 During the break between voting periods, the voter eligibility list used in the raffle was in the personnel director's office. The Union is aware of the present position of the Board on the issue of raffles but still would contend that this should be a per se basis for setting aside an election. In the alternative, the Union contends the election should be set aside because of the particular facts of this case. The Union argues that because the Employer was permitted to maintain a list of those employees who had and had not voted, the election should be set aside, particularly, as here, the issues to be litigated at the hearing . Under these circumstances, evidence relating to this issue was held off until later in the hearing 51 A 19-inch portable color television set,with a retail value of $370 52 1 do not credit the testimony of Bauer and Francisco Gonzalez that Leadman Maldonado assisted in the registration. Specifically . I find the processing was done by nonsupervisory personnel , albeit at the direction of the Employer. 51 Not all the voters registered for the raffle Rangel testified he did not participate in the raffle although he voted-he didn't think he had a chance to win. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a split period election where the Employer had the opportunity to convert that list to its own use 54 The Board has held that the use of a raffle as preelection propaganda is not a per se basis for setting aside an election ; its effect on the exercise of a free choice in the election depends upon consideration of all the facts and surrounding circumstances .55 In a number of cases, raffling of TV sets, without more, has not been the basis for setting aside the elections.56 Even the fact that employees picked up their raffle tickets immediately after they voted, as here, has not appeared to be of particular significance in a number of these cases.57 Appealing arguments have been made in dissenting opinions of Board members supporting adoption of a rule whereby gifts to the electorate by parties to an election would be per se grounds for setting aside a Board conducted election .58 Since I am compelled to follow the decisions of the Board majority , I must conclude that conducting the raffle of the TV set, even while the election was being held , is not sufficient per se to justify setting aside the election . However, to be considered is the manner in which the electorate registered for the raffle. In none of the cases involving the running of raffles does it appear that the Board had considered or had before it the issue presented here ; that by restricting eligibility to participate in the raffle to only those employees who voted in the election, the Employer was in a position to know who had not voted. In the instant case, the Employer was able to ascertain those of the eligible voters who had not voted, through the use of a copy of the Excelsior list. It has long been the policy of the Board to prohibit anyone from keeping a list of persons who have voted, aside from the official eligibility list used to check off the voters as they receive their ballots.59 I agree with the Union that here, the situation was even more aggravated-this list was available for several hours before the second voting period started. Applying the Board policy relating to the maintenance of voting lists, I find that by maintaining a list whereby it could keep an account of employees who had not yet voted, the Employer engaged in conduct which constituted a sufficient invasion of the laboratory conditions which the Board so zealously demands in Board elections. Accord- ingly, Objection 9 is sustained. Upon the basis of the above findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Marathon LeTourneau Company, Gulf Marine Division of Marathon Manufacturing Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 51 There is no evidnec that the Employer contracted any of the employees during the interval. 55 Olympic Products, Inc, 201 NLRB 442 56 Tunica Mfg Co, Inc, 182 NLRB 729, Elgin Butler Brick Co, 147 NLRB 1624 57 Tunica Mfg Co, inc supra, Electro-Voice Inc, 191 NLRB 425 Hollywood Plastics, Inc, 177 N LRB 678 58 Electro- Voice Inc, supra, Hollywood Plastics, Inc, supra, Buzza- Carc'ozo, 177 NLRB 589 3. By interrogating employees concerning their union sympathies, by threatening plant closure or removal and elimination of overtime if the Union were selected as the bargaining representative, by threatening discharge of employees because they favored the Union, by soliciting employees to dissuade other employees from supporting the Union, and by auguring the futility of selecting the Union because the Respondent would not bargain in good faith, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Objections 1, 2, 3, and 9 are meritorious and are sustained. 6. Objection 4 is without merit and is overruled. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. As I have found that the Employer has engaged in conduct violative of Section 8(a)(1) of the Act, and other conduct which interfered with the holding of a free election, thereby affecting the results of the election conducted in Case 23-RC-3875, I shall recommend that the election be set aside and that Case 23-RC-3875 be severed from Case 23-CA-4634 and remanded to the Regional Director for Region 23 for the purpose of conducting a new election at an appropriate time to be fixed by the Regional Director. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6o Respondent, Marathon LeTourneau Company, Gulf Marine Division of Marathon Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities, interests, or desires in a manner violative of Section 8(a)(1) of the Act. (b) Threatening plant closure or removal of its opera- tions if a union is selected as the bargaining representative of the employees. (c) Threatening a reduction of overtime if a union is selected as the bargaining representative of the employees. (d) Threatening employees with discharge because of their support for a labor organization to represent them. (e) Soliciting employees to dissuade other employees from supporting a labor organization. (f) In an unlawful manner, predicting the futility of 59 International Stamping Co, Inc 97 NLRB 921, Belk's Department Store, of Savannah, Ga Inc, 98 NLRB 280, Piggly-Wiggh #011 and #228 Eagle Food Centers, Inc, 168 NLRB 792. 60 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, 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 MARATHON LE TOURNEAU CO. 225 selecting a labor organization as the bargaining representa- tive of its employees. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join or assist the United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at Respondent's facilities at Brownsville, Texas, in both the English and Spanish language, copies of the attached notice marked "Appendix."61 Copies of said notice, on forms provided by the Regional Director for Region 23 , after being duly signed by an authorized representative of We Respondent, shall be posted by the Respondent immediately upon receipt thereof, for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced , or covered by any other material. (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative of the Act in Case 23-CA-4634 be dismissed. IT IS FURTHER RECOMMENDED that Objection 4 be overruled and that Objections 1, 2, 3, and 9 be sustained. It is also further recommended that the election held on January 3, 1973, in Case 23-RC-3875 be set aside and a second election be held at an appropriate time to be fixed by the Regional Director. tive Law Judge of the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL N01 interrogate employees in a manner violative of the provisions of Section 8(a)(1) of the Act concerning their union activities , interests, or sympa- thies. WE WILL NOT threaten to close the Brownsville facility or move the operations if the employees select a labor organization to represent them as their collective bargaining representative. WE WILL NOT threaten to reduce or eliminate overtime if the employees select a labor organization to represent them as their collective bargaining represent- ative. WE WILL NOT threaten employees with discharge because they favor unionization. WE WILL NOT ask employees to speak to other employees against supporting a labor organization. WE WILL NOT declare that we will bargain in bad faith with a labor organization if it is selected as the collective bargaining representative of the employees. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any of all such activities. 61 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, an Adrninistra- Dated By MARATHON LETOURNEAU COMPANY, GULF MARINE DIVISION OF MARATHON MANUFACTURING COMPANY (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 concern- ing this notice or compliance with its prov;sions may be directed to the Board 's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4271.