Ludwig Motor Corp.

LUDWIG MOTOR CORP. 635 Ludwig Motor Corp. and International Industrial Pro- duction Employees Union. Cases 29-CA-3717, 29-CA-3746-2, 29-CA-4084, and 29-RC-2549 January 30, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO posted a flyer on the bulletin boards in the ware- house on February 20, the day before the election.' The flyer contained an excerpt from the Sixth Circuit's, decision, in Automation and Measurement Division, The Bendix Corporation v. N. L. R. B.4 Printed in bold typeface above and below the excerpt Re- spondent stated: - IF THE UNION TELLS YOU THAT WHAT YOU HAVE NOW IS GUARANTEED, IT IS NOT TELLING YOU THE TRUTHI . AS THE COURT SAID, THE TRUTH IS THAT YOU CAN LOSE WAGES AND BENEFITS IN COLLECTIVE BARGAIN- ING On May 15, 1975, Administrative Law Judge Ber- nard J. Seff issued the attached Decision in this pro- ceeding. 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 Na- tional Labor Relations Board has delegated-its au- thority in this proceeding to a three-member panel.' The Board has considered the record and the at- tached 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, as modified herein. We agree with the findings of the Administrative Law Judge? except his finding that Respondent vio- lated Section 8(a)(1) of the Act by the statement of its president during a preelection speech that the bar- gaining process starts with a blank sheet of paper and could result in the loss of benefits then enjoyed by the employees. During the course of its campaign, the Union made several partisan statements to the employees including claims that: (1) Respondent had done nothing for its employees in the past; (2) employees could not lose existing benefits through collective bargaining and such benefits were guaranteed; (3) employees "can only gain, you only get better things" from collective bargaining; and (4) with the Union they "will have fatter paychecks . . . guaran- teed raises," free medical, dental, and eye care and free-life and health insurance. In its communications with Respondent during this period, the Union as- sumed an aggressive posture. It expressed its position with statements to President Bohn such as "You don't like our Union: You are darn right not to like us. This Union will cost you more money in the form of wage increases and fringe benefits." In response to these statements, President Bohn i Member Penello with Chairman Murphy dissenting in part and Member Jenkins dissenting in part. 2 Chairman Murphy does not agree that the Respondent violated Sec. 8(a)(I) by certain statements by Bohn as set forth in her separate opinion attached hereto On the same day, but more than 24 hours before the election, President Bohn delivered a speech to the employees which covered a wide range of subjects including a detailed comparison of present benefits with those allegedly provided by the Union's insur- ance and benefit plans. President Bohn testified that he stated, inter alia: (1) "all your present and/or fu- ture benefits are negotiable . . . the negotiation is going to start with a blank piece of paper and each present wage or each present benefit will be negotiat- ed. . . . There is nothing automatic. . . ." and (2) "negotiations is nothing else but very simple horse trading, it gets down to: I want this, what will you give me instead? And ' since the Union themselves have nothing to trade away, obviously the present and/or future benefits may be discussed and may be traded in order to get a union shop or check-off clause." President Bohn testified that throughout the speech he stressed his intention that, "if negotiations should start, that Ludwig Motors obviously would bargain in good faith, would bargain within the frame of the law." I We find that Respondent's statements, 'made in re- sponse to exaggerated claims by the Union, consti- tuted nothing more than an accurate description of one possible consequence of lawful collective bar- gaining. In light of Respondent's frequent assertions that it would bargain in good faith and abide by the law, it is clear that its purpose in discussing a possible loss of benefits through collective bargaining was to answer the Union's claims and thereby inform the employees as to the realities of the collective-bargain- ing process.6 In many respects, the situation here is 3 The Administrative Law Judge inadvertently referred to this posting as occurring on January 10, 1974 a 400 F 2d 141 (1968) The excerpt reads, "The United States Government and the N L R B do not guarantee employees that the collective bargaining process starts from 'where you presently are in wage's, insurance, pensions, profit sharing and all other conditions of employment "' ' 5 Respondent also stressed its intention to bargain in good faith in the many flyers which it distributed during the preelection period. 6 Respondent's employees were also informed of management's intention to continue to provide for their economic welfare whether or not it had to bargain with a union As evidence of this, one of Respondent's flyers reads- Continued 222 NLRB No. 36 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD analogous to that presented in The Singer Company.? In that case a plant manager stated to employees, inter alia, "bargaining would not necessarily mean in- creases in benefits since good negotiators often start at `zero' and go on from there... ." 8 The Board found that the employer's statement was not a threat in violation of Section 8(a)(1) of the Act. As in The Singer Company, supra, we find that President Bohn's statements as to the possible results of lawful, good-faith collective bargaining were in- tended to inform the employees of the economic real- ities of the collective-bargaining process and carried no implication that any benefit would be taken away unilaterally .9 We find that these statements constitute protected speech under Section 8(c) of the Act. Ac- cordingly, we shall dismiss that portion of the com- plaint which alleges that they were violative of Sec- tion 8(a)(1).10 On the other hand we agree with the Administra- tive Law Judge that Bohn impliedly threatened the employees with a reprisal for voting the Union in when he spoke of the possibility of the plant moving or closing." Contrary to Chairman Murphy's analy- sis, Bohn's references to the possibility of a move were not confined to speculations about the Company's reaction to "outrageous demands" by the Union. While at one point in his speech he coupled the "prediction" of a possible move with the Union's demands being too high, he also said the following, according to his own testimony: Of course I told them if you vote for the Union that is certainly up to you, it is your decision and you got to make the decision yourself. If you make the decision to vote for the Union, Dana [the parent company] and Ludwig, then we will have to make their decision and will have to decide what to do depending on the de- velopments, and Dana is a big company and has various operations and warehouses in the U.S. In the context of the entire speech, the reference to the Company's having to "decide what to do" would naturally have conveyed to the employees the idea of a move or a closing. This "prediction" was not made with reference to union demands, but rather to its victory in the election without more. The fact that elsewhere in the speech Bohn related the possibility of a move or closing to anticipated union tactics does not insulate the quoted remarks from attack. On the contrary, the quoted remarks make somewhat dubi- ous the contention that at the point where Bohn sought to blame future union tactics for projected company action he was engaging only in an econom- ic prediction." We have long recognized that threats of closing or moving are among those to which employees are most acutely sensitive. Indeed, as with the fabled princess and the pea, the possibility of such a reprisal can be felt by employees even after assurances are piled upon assurances that an apparent threat was not intended as such. Nonetheless an unequivocal as- surance might in some cases be sufficient. Here, no such assurance was given.13 We have also had occasion to observe that threats of moving a plant may under certain circumstances be the most coercive of all, since in the eyes of the employees an employer which, like Respondent, has plants at many locations, may be able to relocate the unionized operation at relatively small sacrifice.14 And we note that the coercive effect of the message, even if it could be considered in isolation to have been minimal, would be magnified by coming direct- ly from the president of the Company in a captive- audience speech to all the employees on the day be- fore the election. As far as money and employee benefits go, I think you know, as we do, that in order to get the competent people and keep the competent people it takes to run our business, we are going to have to pay the going rate in wages and in benefits or we are simply not going to get and keep the people necessary to run this business . And that is true union or no union, and will always be true 7 176 NLRB 1089 (1969). See also Computer Peripherals, Inc, 215 NLRB No. 22 (1975), Stumpf Motor Company, Inc, 208 NLRB 431 (1974), and Wagner Industrial Products Company, Inc, 170 NLRB 1413 ( 1968). ' 176 NLRB 1096 (1969) 9 Member Jenkins does not agree with this finding as set forth in his attached separate opinion. 10 The Administrative Law Judge's overruling of Objection 2, which we have adopted, buttresses our finding herein . Objection 2 reads: During the speech on Wednesday, February 20, 1974, by Mr Gary Bohn, he told the people that if the petitioning Union won the election and he had to deal with said Union, any and all benefits being given to the employees of Ludwig would be taken away from them The Administrative Law Judge found that this objection "is not supported in the record " 11 Chairman Murphy does not agree with this finding as set forth in her attached separate opinion ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Ludwig Motor Corp., Melville, New York, its officers , agents, successors, and assigns, shall take the action set forth 12Cf The Singer Company, Friden Division, 199 NLRB 1195, 1210-12 (1972) 13 It is difficult to understand how Chairman Murphy is able to construe Bohn's statement that "whatever happens, strike or no strike . . Ludwig will go on," as a negation of his references to a possible transfer of opera- tions 14 Automated Business Systems, a Division of Litton Business Systems, Inc, a Subsidiary of Litton Industries, Inc, 205 NLRB 532, 536 ( 1974), enforce- ment denied on other grounds 497 F 2d 262 (C A 6, 1974) LUDWIG MOTOR CORP. 637 in the said recommended Order, as so modified: 1. Delete the words "and also saying that the bar- gaining starts with a blank piece of paper and could result in the loss of employee benefits" from para- graph 1(a). 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on February 21, 1974, in Case 29-RC-2549 be, and it hereby is, set aside, and that said case is hereby re- manded to the Regional Director for Region 29 to conduct a new election at such time as he deems that the circumstances will permit the free choice of a bargaining representative. [Direction of Second Election omitted from publi- cation.]15 CHAIRMAN MURPHY, concurring in part and dissent- ing in part: I agree with the findings of my colleagues except their finding that Respondent violated Section 8(a)(1) and interfered with the election through the preelection statements of President Bohn that Re- spondent might be forced to close or move its ware- house if the Union made outrageous demands. In my judgment, these statements constitute protected speech under Section 8(c) of the Act particularly in light of Respondent's serious financial condition. Ac- cordingly, I would dismiss the complaint in its entire- ty and certify the results of the election. Respondent, a wholly owned subsidiary of the Dana Corporation, operates one of Dana's 50 plants. It is engaged in the warehousing and wholesale distri- bution of replacement parts of foreign automobiles. On June 1, 1973, Respondent acquired the assets of Echlin Manufacturing Company and began opera- tions at Echlin's Melville, New York, plant. Accord- ing to the record, Echlin had been losing approxi- mately $50,000 a month or $600,000' a year in the operation of this facility. However, in spite of the takeover by Respondent, losses continued. Respondent's last quarterly report reflects that as of February' 28, 1974, its losses from operation of the Melville plant amounted to $54,000. Early in January 1974 the International Industrial Production Employees Union began an organiza- tional campaign at Respondent's Melville facility. The Union's campaign was marked by exaggeration and vituperation. Flyers were distributed to employ- ees which stated that Respondent had done nothing for them in the past. Extravagant claims were made as to what the Union would get for employees, such as guaranteed raises, free medical, dental, and eye care, and free life and medical insurance coverage. 15 [Excelsior fn omitted from publication.] Employees were told that Respondent was "trying to intimidate" them and was "instilling fear into your minds that if you make a human error it will be your last!" Alluding to the German ancestry of Respondent's president, Gerhard Bohn, some flyers intimated that he was tainted with Hitlerism. One flyer, addressed "Heil Gerhard," stated, inter alia, "YOU DON'T LIKE OUR UNION: You are darned right not to like us. This Union will cost you more money in the form of wage increases and fringe benefits. How will your big boss, Dana, like that bitter pill." On February 20, 1974, the day before the election, President Bohn delivered a speech to the employees in which he attempted to answer many of the claims and accusations of the Union. Bohn testified that he said, inter alia, "that if Ludwig is losing money, the way Echlin lost money, $50,000 per month, $600,000 per year, there would be no way that Ludwig could obviously profitably operate on Long Island and if we cannot profitably operate on Long Island we would have to do something in order to make a profit and since we only have two years to go on the lease we would have to see what we are going to do." Bohn further testified that he said, "Let's assume that the Union is demanding from Ludwig something which they cannot afford. Then of course there is a possibil- ity if we accept those demands Ludwig then go broke [sic], it is a possibility it could go out of business or it becomes [sic] non-competitive." The Union lost the election conducted on Febru- ary 21 by a vote of 29-21. Three of nine challenged ballots were sustained by the Regional Director, leaving the remaining challenged ballots not determi- native of the election. Objections to the election were timely filed by the Union and were consolidated for hearing with the complaint in the unfair labor prac- tice case. The complaint alleges, inter alia, that Presi- dent Bohn's remarks concerning the possibility of being forced to move, or relocate the Melville plant in the event Respondent was faced with unreasonable Union demands were violative of Section 8(a)(1). Objection 1 alleges that by such remarks Respondent interfered with the election. The Administrative Law Judge found, and my, colleagues agree, that such con- duct was violative of the Act and requires the setting aside of the election and the direction of a new one. I disagree. The Board has recently ruled that under, circum- stances more aggravated than those present herein, an alleged threat to close a plant was not violative of the Act. In Mt. Ida Footwear Company, A Division of Munro Company, Inc.,I6 agents of the employer told assembled employees: "I could mention a lot of things about unions which might show you why sign- 217 NLRB No. 165 (1975). 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing their cards could be fatal to Mt. Ida Footwear." The Board found this and similar statements to be permissible campaign propaganda and held: The statements,- in the context in which they were made, merely expressed Respondent's posi- tion that the employees would be better served in terms of benefits by rejecting the Union and that the employees should therefore not sign any cards. The use of the word "fatal" was a refer- ence to the possibility that unionization could lead to difficulties if the Union were to strike to obtain unreasonable demands. That the use of "fatal" did not threaten plant closure is further evidenced by Munro's statement in a later speech, "We are here to stay." The Board re- cently found a similar statement to be permissi- ble campaign propaganda of the type which has become commonplace in our elections." [Citing Airporter Inn Hotel, 215 NLRB No. 156 (1974).] In the instant case, Respondent's employees were not likely to misinterpret Respondent's remarks as threats of reprisal for supporting the Union. Presi- dent Bohn informed Respondent's employees of the financial difficulties which caused Respondent's pre- decessor, Echlin, to close, and told them that further losses due to unreasonable demands by a union could have the same effect on Respondent. Thus my conclusion must be considered in light of the plant's financial history under Echlin's management and Respondent's recent -quarterly report which revealed a $54,000 loss. In addition, it is difficult to see how the employees could have been restrained or coerced by such observations in view of President Bohn's fur- ther statement during the February 20 speech that, "whatever happens strike or no strike . . . Ludwig will go on." In Mt. Ida Footwear, supra, the employer also stated in a speech, "We are here to stay," and this was likewise relied upon by the Board as evi- dence that the employer had not threatened the clos- ing of its plant.18 12 Id. 18 In my judgment, the majority misinterprets President Bohn's testimo- ny that the Company would have to "decide what to do" as relating solely to what would happen if the employees voted for the Union The majority fails to take into account that Bohn referred to making a decision "depend- ing on the developments " In light of Bohn's subsequent statements con- cerning the economic realities facing Respondent , it is clear that Bohn was saying (1) if the employees voted for the Union, and (2) depending on the developments, i e. whether the Union made outrageous demands in the pro- cess of bargaining, Ludwig would have to decide what steps, if any, would be necessary in order to remain economically viable Furthermore, when viewed in context the remark is noncoercive Immedi- ately before he made the statement in question , Bohn told the employees, "Dana and Ludwig won't do what is not right for you and all involved " Clearly this was not a threat to close the plant, but rather was a commitment to act for the common good . Bohn's subsequent statement that in spite of a strike "Ludwig will go on" also emphasizes the noncoercive nature of the speech If Bohn had said, "Dana [the parent company] will go on ," then it In a case almost identical to this one, The May Department Stores Company d/b/a The M. O'Neil Company," the employer's,president responded in a preelection speech -to the union's derogatory cam- paign literature which personally attacked him and derided his implementation of plans to revive an eco- nomically failing store by saying: I am a builder. I work with people. If the people will not work with me I cannot build. It is the only way I know how. I cannot work with bick- ering, dissension, division, hostility. Everything I try to do sabotaged-people sticking knives in my back. If I can't work at the difficult job of turning this downtown store around, I just have to abandon it. I have to work in the branches. I have to work with people who are interested in seeing us get ahead rather than working with people who are trying to destroy. You have to tell me how you feel. This is your life.... 20 The Board dismissed the 8(a)(1) allegation based on these remarks and held: In our view, the disputed part of Emma's speech did not constitute a threat to close the store before allowing the employees to bargain collectively, but, rather, was a reaction -to, and an emotional protest against, the Union's 'per- sonal attack on himself and on his implementa- tion of plans to revive the store, and could rea- sonably be understood as such by the employees.21 In other cases, the Board has consistently held that statements such as those made by President Bohn are protected by Section 8(c) of the Act. In Birdsall Con- struction Company,22 the employer's vice president told the employees, "I predict that if we have to oper- ate under a union contract which adds considerably to our expenses, then we are certainly, as busi- nessmen, going to have to consider very strongly the necessity of moving our operations so as to reduce our costs." The Board, finding this and similar state- ments by the employer's officials to be protected by Section 8(c), held: Respondent's speeches amount to nothing more than an objective statement of the finan- cial problems which it would face in the event of might be argued that Bohn was suggesting the transfer of Ludwig's opera- tion to another facility in Dana's organization However, Bohn specifically told the employees at the Ludwig plant that their plant would remain in business Since I find Bohn's statement , "Ludwig will go on," to be an unequivocal assurance that the plant would not be transferred or closed, it follows that Respondent did not violate the Act through a threat of plant closure 19211 NLRB 150 (1974) 20 Id 21 Id 22 198 NLRB 163 (1972) LUDWIG MOTOR CORP. 639 unionization, followed by a prediction that such problems could make relocation in the Miami area an economic necessity. 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 them, but rather as a re- cital of Respondent's belief regarding the de- monstrable economic consequences beyond its control which could flow from unionization23 Similarly, in LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company,24 the Board dismissed an 8(a)(1) allegation'and overruled an ob- jection relating to' an alleged threatened plant clos- ing. The Board held: We disagree with the Administrative Law Judge's finding that Respondent violated Sec. 8(a)(1) of the Act through Supervisor Lee's May 5 statement to the effect that Respondent nei- ther would be competitive nor able to remain in business in the event the Union "came in" and made the same demands on Respondent as are contained in that Union's contracts with others. In our view, that statement is merely an expres- sion of opinion reasonably based on known eco- nomic facts which is protected by Sec. 8(c) of the Act25 Upon facts similar to those in the instant case, the Board in B. F. Goodrich Footwear Company 26 found that allegedly coercive statements made by a supervi- sor to a job applicant to the effect that "some of the people in the company were trying to get the union in, and that if the Union were voted into the compa- ny, that the company would very likely . . . have to close down because they couldn't afford a union be- cause the first thing that they would want is higher wages," were not violative of the Act. The Board held: On cross-examination, Honeycutt admitted that during the interview Hardy discussed the footwear industry with him, mentioning that the industry was very competitive and that the Re- spondent had not made a profit in several years. It is thus apparent that the remarks of Hardy set out above were made in a context of a discussion of the economics of the footwear industry and Respondent's poor economic performance. It is not 23 Id 24 208 NLRB 84 (1974) 25 Id. at 84 26 201 NLRB 353 (1973). contended that Hardy's statement about the competitive nature of the footwear industry or about Respondent's financial losses were inac- curate. Nor did Hardy say that if the employees selected the Union the plant would inevitably close. The point of his discussion with Honeycutt was that, in view of its losses, Respondent could not afford to grant large wage increases and if forced to do so would, in his opinion, cease operations., This was not a.threat but an opinion based on de- monstrable facts as to the economic consequences which might reasonably be expected to result from unionization. As such it was protected by Section 8(c) of the Act. [Emphasis supplied, fns. omitted.] 27 I find that President Bohn's comments, made in light of its already weakened economic condition, were objective, economically realistic statements. In my judgment, they were based on demonstrable eco- nomic consequences beyond Respondent's control which would surely follow the Union's presentation of unreasonable demands. As such, I find they con- stitute protected speech under Section 8(c) as inter- preted by the Board in the cases cited above and similar cases 28 Accordingly, I would reverse the Ad- ministrative Law Judge's finding of an 8(a)(1) viola- tion and overrule correspondent Objection 1, dismiss the complaint in its entirety, and certify the results of the election. MEMBER JENKINS, dissenting in part: My colleagues find nothing unlawful in Company President Bohn's repeated warnings to employees about the potentially deleterious consequences of collective bargaining. They prefer to construe Bohn's statements to employees concerning the possible loss of existing benefits as nothing more than a hardhit- ting rebuttal of the Union's "exaggerated claims" aimed only at awakening employees to the supposed "realities" of the bargaining process. I disagree. In my judgment my colleagues' analysis is woeful- ly wide of the mark. In the first place the Union's "exaggerated claims" are rather typical campaign propaganda, "puffing" that the Company had suffi- cient time to respond to and that employees were clearly capable of evaluating. Bohn's speech, on the other hand, was delivered the day before the election and his repeated reminders about the possible loss of benefits 29 were bracketed by plainly unlawful threats 27 Id at 354. 28 Cf Fiberfil, Division of Dart Industries, 210 NLRB 1086 (1974), Federal Paper Board Company, Inc, 206 NLRB 681 (1973), J. J Newberry Company, 202 NLRB 420 (1973), Southern Frozen Foods, Inc., 202 NLRB 753 (1973). 29 According to the credited testimony of employees Bohn indicated that "he wouldn't just sign the contract . he would be started on a clean piece of paper " Bohn also asserted that "original benefits . . might be lost" and Continued 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to close or move the facility in the event of a union victory. When Bohn's February 20 speech is evaluat- ed, as it should and must be, in the context,30 it is readily apparent that his frequent references to the possible loss of existing benefits, particularly when coupled with his threats to close or move the busi- ness, were intended to inculcate in employees a sense of futility and apprehension over the consequences of unionization and collective bargaining.31 Under these circumstances the nice distinction that my colleagues seek to draw between what they characterize as "an accurate description of one possi- ble consequence" of collective bargaining and an un- abashed warning of economic reprisal for selecting a bargaining agent can hardly be expected to hold muck appeal for employees to whom the loss of jobs or benefits is a real and personal threat. Accordingly, I would adopt the Administrative Law Judge's Deci- sion in its entirety and find a violation of the Act predicated not only on Respondent's threat to close or move the business but also on its veiled threat to withdraw existing benefits.32 Industrial Production Employees Union or any other labor organization. The bargaining unit is: All employees including shipping and receiv- ing, truckdrivers, and lead persons, excluding office clericals, supervisors, and guards as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. You are free to become and remain members of International Industrial Production Employees Union or any other labor organization, or to refrain from becoming or remaining members of any labor organization. that employees might come out with less than they originally started be- cause "nothing is guaranteed, everything starts fresh " Bohn himself admit- ted warning employees that the Union had nothing to "trade away" only "present and/or future benefits" in return for a union shop or checkoff agreement. The Company also distributed and posted a flyer containing an out-of-context statement found in a Federal court decision and utilized to underline the Company's persistent theme that employees would jeopardize existing benefits if they chose union representation 30 See Textron, Inc (Talon Division), 199 NLRB 131 (1972) 31 As one employee testified "I don't know how to explain it, he put a scare into all of us " Administrative Law Judge's Decision , second par before sec F. 32 My colleagues' reliance on The Singer Company, 176 NLRB 1089 (1969), is misplaced . There the plant manager's statement that negotiation "often start at zero and go on from there" was unaccompanied by threats to close or move the plant, or by repeated warnings that employees would risk the loss of existing benefits if the union prevailed Moreover, my colleagues make the error of failing to distinguish between statements that point out that bargaining does not automatically or necessarily lead to increases in benefits, and statements which constitute a transparent warning that ex- isting benefits will be lost APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States, Government After a hearing in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found we violated the law and has ordered us to post this notice. WE WILL NOT tell you in speeches or letters that if the Union won we might close or move the warehouse for the purpose of inducing you to withdraw your support from the International LUDWIG MOTOR CORP. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge : On May 23, 1974, charges were filed by International Industrial Pro- duction Employees Union, herein called the Union. In Cases 29-CA---37 17' and 29-CA-3746-2, the Regional Di- rector for Region 29 issued a complaint and notice of hearing against Ludwig Motor Corporation, herein called Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5) of the Act. Thereafter, on May 30, 1974, Region 29 issued a Report on Challenged Ballots and Objections in Case 29-RC-2549, and an order consolidating the above cases for hearing on the objections to the "R" case. The initial hearing was opened on July 16, 1974; the complaint was amended on this date. Hearings were held on varying dates from July 16, 1974, to January 16, 1975. Pursuant to further charges and amended charges in Case 29-CA-4084 alleging violations of Section 8(a)(1), (3), and (4), I granted the General Counsel's Motion to Consolidate all cases on January 14, 1975. The hearing was then heard on January 15 and 16, 1975, and was closed on the latter date. In. sum the charges alleged that Respondent discrimina- torily discharged a group of 10 part-time employees; en- gaged in interrogation of certain employees; subsequently it was alleged that Respondent discharged an employee, Anna Micele , because of her activities on behalf of the Union and because she gave testimony at an NLRB hear- ing. Respondent admitted it was engaged in commerce and that the Union was a labor organization but denied the LUDWIG MOTOR CORP. 641 commission of any unfair labor practices. All parties were represented at the hearing and were ac- corded full opportunity to be heard, to introduce relevant evidence, to present oral agrument, and to file briefs. Briefs were filed and Respondent's brief was filed, after an exten- sion, on March 10, 1975. Upon consideration of the entire record, the briefs and observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The business of the Respondent consists of the ware- housing and wholesale distribution of replacement parts for foreign automobiles. During the past year Respondent purchased and had delivered to its place of business in Melville, Long Island, New York, automotive parts and other materials valued in excess of $50,000 directly from States of the United States, other than New York. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. I so find. Background Ludwig is a wholly owned subsidiary of the Dana Cor- poration. Dana conducts a nationwide operation and has 50 plants of which Ludwig is one. The record shows that Respondent acquired the assets of Echlin Manufacturing Company and began operating this plant at Melville, Long Island, on June 1, 1973. Ac- cording to the undisputed testimony of President Gerhard Bohn, Echlin, the predecessor company, lost approximate- ly $50,000 a month or $600,000 a year in the operation of this facility. The Union commenced its organizing campaign early in January 1974. By January 16 or 18, at which time there were approximately 65 employees in the bargaining unit 2 of which the General Counsel said the Union had 38 signed authorization cards. The Union's secretary-treasur- er, Lawrence Litman, made an oral (January 16) and tele- graphic demand (January 18) for recognition. He was told to process his claim for representation through the NLRB. He filed a petition in Case 29-RC-2549. An election was held on February 21, 1974. The vote was 29 against the Union and 21 for it. There were nine challenged ballots. Three of the challenges were sustained thus leaving the result against the Union stand since the remaining ballots could not affect the results of the election. Objections to 1 Respondent made an unopposed motion to correct the transcript The motion is granted 2 The appropriate unit consists of All employees, including shipping and receiving, truckdrivers, and lead persons of Respondent, exclusive of office clericals, guards, and all supervisors as defined in the Act the election were timely filed by the Union which will be discussed infra in this decision. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Part-time Employees There were 10 part-time employees who were dis- charged: Robert DiRusso January 22, 1974 Robert Kilduff January 22, 1974 Michael LoMonaco January 22, 1974 Kevin Donovan January 22, 1974 Frances Donnelly February 1, 1974 Pauline Maurio February 1, 1974 Susan Brzeski February 1, 1974 Jean Adams February 1, 1974 Nicoletta Cuozzo February 1, 1974 Mary Stillitano February 1, 1974 The Company explained its problems with part-time em- ployees. Initially, when Bohn first took over the operation in June 1973, not only did he find that the predecessor company, Echlin, left the facility badly manned but the labor market in Long Island was at this time tight and it was impossible to secure adequate full-time employees. The then warehouse manager, Bud Squazzo, no longer em- ployed, suggested that the work of the warehouse could be expedited if the Respondent hired permanent part-time employees. In order to secure this type of help Squazzo told applicants for jobs that they would have flexible hours. Such employees worked from about 9 a.m. to about 1:30 p.m. The Company had been experiencing great diffi- culty getting its orders "turned around" and shipped. The problem was not helped by the part-timers. Delay in ship- ments caused many customer complaints. The hiring of part-timers did not help the problem of getting the orders out on time. Starting sometime in November 1973, Bohn met with Warehouse Manager Charles Crifasi and an ex- pediter, Moe Mulqueen, who later, on December 19, be- came comanager of the warehouse, to discuss some solu- tion to this problem. At this time it was suggested that the part-timers be let go since they had not worked out. They only worked from about 9 a.m. until about 1:30 or 2 p.m. and oftentimes left their work incompleted. This required the full-time employees to drop what they were doing to complete the work started by the part-timers. It was also impossible to schedule the work of these employees be- cause they only worked short shifts, on fluctuating hours and therefore could not be relied on to complete their jobs. This caused bottlenecks in the Company's operations. With the advice of Crifasi and Mulqueen, Bohn decided to eliminate the part-timers and replace them with full-time employees. Other similar discussions took place in Decem- ber at which point Bohn decided to let these employees go. In December 1973 the job market on Long Island in the Melville area eased so that it became less difficult to secure full-time employees than had been the case in September and October 1973. Other similar discussions took place about the backlog problem and the role played in that connection by the utili- zation of part-time help. In mid-December 1973, it was determined that part-time positions would be eliminated. It 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was further decided that the present part-timers would be offered full-time employment with full wages and partici- pation in the benefit programs available to full-time work- ers. If the part-time employees' were either unable or un- willing to accept full-time work their jobs would be eliminated. Crifasi suggested that this decision be held in abeyance until after Respondent's Christmas party and the Christmas and New Year's holidays were over. Bohn agreed. However, by the week of January 21, 1974, Bohn was in the warehouse where he noticed that some part-time employees were still employed. Bohn took a firm stand, said there had been too much stalling on effectuating the decision made in December, and insisted that his decision be implemented now that the holiday season was over. At this point Crifasi proceeded to talk to two high school stu- dents who were working on a part-time basis. Crifasi spoke to LoMonaco and Donovan and told them that although he realized both had student status and would not be able to accept full-time jobs, at Bohn's in- structions they were offered such positions. He also noti- fied them that they would not be able to continue to work for the Company on a part-time basis. Donovan said he might be able to work an additional hour but that he could not accept a full-time job because of his school obligations. LoMonaco said he was involved in a school athletic pro- gram and intended to quit his job anyway. Consequently, both LoMonaco and Donovan were let go on January 22, 1974. Students Kilduff and DiRusso were similarly told of Respondent's decision to eliminate part-time employees and they too were terminated. On January 23 Crifasi spoke to part-time employees Stil- litano and Sanfilippo. Sanfilippo said she would be inter- ested in accepting full-time work. Stillitano stated she would not work full time. On the same day Mulqueen spoke to the part-time women workers in the labeling sec- tion of the warehouse. He told Susan Brzeski, Nicoletta Cuozzo, Pauline Maurio, Jean Adams, and Frances Don- nelly that part-time jobs were being eliminated and invited them to accept full-time work with full pay and all the benefits the regular employees received. Three of the part- timers, Adams, Donnelly, and Brzeski, said they would ac- cept full-time work. Cuozzo and Mauno said they were not interested in full-time jobs. Later that day Mulqueen was told that the three women who at first had accepted full-time jobs wanted additional time to discuss the matter with their husbands. Mulqueen, with Bohn's approval, agreed to extend the time for mak- ing this decision to Friday, January 25. On Friday, Don- nelly told Mulqueen that if this was the last day for the girls to make a decision they wanted their paychecks. One of the girls said she thought it was not fair for them to be dismissed without a week's notice prior to termination. Bohn was contacted by Crifasi and agreed to further ex- tend the time for making a final decision another week- until February 1. Thereafter, Sanfilippo was reemployed as a full-timer on February 12; Adams was reemployed on February 19; thus both Brzeski and Adams were reem- ployed prior to the NLRB election which took place on February 21. Finally, another part-timer, Donnelly, ap- plied for and was given full-time employment on February 27. Respondent's brief points out, "Since early December 1973, when serious consideration was given to the elimina- tion of part-time jobs, Respondent has not hired any per- sons in a part-time capacity." Mulqueen testified that he requested Bohn's permission to retain one part-time employee, Dominick Guido, on the payroll. He explained that while he was working as an ex- pediter he had trained Guido to assist him in special work known as profiling.3 After he was promoted to comanager of the warehouse, Mulqueen had little time to continue this work which had previously taken him one-half of each workday. Guido was the only employee; either part or full time, qualified to perform this special task. Bohn agreed that Guido could be retained until the project was complet- ed but he would then have to accept full-time employment or be terminated. It should be noted that another part- timer, Kilduff, testified that he had performed the same general work as Guido. Kilduff's testimony was contra- dicted by his pretrial affidavit in which he had stated that Guido was "sort of in charge" of the upstairs section where the profiling work was done. The General Counsel points out that the record shows that Guido was one of the few employees who had not signed a union authorization card and had stated to a fellow employee that he did not want to be involved with the Union. Additionally, there is no evidence that Respondent knew whether Guido was for or against the Union or whether he had signed- a union card. It is significant to note that nowhere in the record is there evidence that any of the part-timers were known to the Company to be active or interested in the Union. It is true that the Company's timing of the discharge of the part-time employees is suspicious since it took place at a time when the Union's organizational efforts were at a high level. On balance and absent proof of Respondent's knowl- edge of union activities by a preponderance of credible evidence, I credit Respondent's explanation for the termi- nation of the part-timers as being due to business reasons. I find that, based on the record, none of the part-timers had engaged in any union activities apart from signing union cards which was not proven to have been known to Respondent. Furthermore, four of the dischargees request- ed and were rehired by Respondent. If the Company had intended to rid itself of known union adherents it is diffi- cult to explain why it so readily rehired four of these em- ployees and offered reemployment to all of them if they would have agreed to work full time. B. The Discharge of Anna Micele The General Counsel states in his brief that Micele was "clearly the chief witness for General Counsel and gave the most damaging testimony concerning Respondent of any of the witnesses." She was in fact more than one of the chief union adherents. She was the witness whose testimo- 3 Profiling is the process involving the allocation of bins or shelves for stocking the automotive parts distributed by Respondent This process re- quires the determination of the bin or shelf capacity of the warehouse, familiarity with customer demand for each automotive part, knowledge of the physical size of the part, and a knowledge of the shelf and bin sizes in which parts will be stored Also involved was the compilation of multiple part numbers and uniform numbers for each part LUDWIG MOTOR CORP. 643 ny forms the groundwork for the entire case. Micele was first employed on August 29, 1973, and she was discharged October 23, 1974. According to Micele, on the date of her discharge she was pushing boxes full of automotive parts down the conveyor belt. She was pushing slowly because the belts were not working by electricity. She claims she was 25 or 30 feet from Mulqueen and "he hollered over to me and told me that I was fired but I just ... kept pushing and he said to me if you don't get the hell out of here I will have you thrown the hell out of here, so I really knew he screamed that I was really fired." She admitted she never asked Mulqueen why she was fired. It should be remarked that Micele impressed me as an ag- gressive and belligerent person. Mulqueen's version of the facts that precipitated her dis- charge bore no resemblance to the story told by Micele. If he in fact hollered or screamed at her it seems strange that no one else heard his allegedly loud voice. Mulqueen testi- fied that Micele was hired as a packer who worked in the packing area. He said he had occasions to talk to Micele about wandering around the warehouse when she was sup- posed to be working. Mulqueen testified on direct examination: Q. What did you tell Micele at that time? A. Well, I told her to stop floating around the ware- house and try to stay in her own area. Q. What did she say? A. Well, "if you don't like my work, give me a pink slip. " Q. What did you say? A. I said, "I'll be the judge of that. Just go back to your area and keep busy." I was outside. Anna- was standing between the con- veyor belts. I says, "Anna there's no work there, there's nothing on the conveyor belts to be packed or stuffed would you.go inside and give someone a hand picking orders." And Anna says, "If I don't will I get a pink slip" I said, "Just go inside and help someone picking an order." She said, "If I don't will I get a pink slip?" I said, "Yes you will." She said, "Well give me your pink slip." I said, "You got it, you're fired." Q. What did she say at that point? A. She didn't say anything. In the context of the above quotes from the record it is a reasonable inference that she did not say anything because she knew why she had been fired. She had three times refused to obey instructions. She had a chip on her shoul- der and was insubordinate and provocative. She in effect dared Mulqueen to fire her. He obliged. Micele's story does not hold water. It is impossible to believe that Mulqueen, out of thin air and totally without provocation, would scream at her that she was fired. C. Credibility of Micele, The record is replete with instances of evasive and con- tradictory statements made by Micele. The complaint in Case 29-CA-4084 alleges that Micele was discharged because she gave testimony before the NLRB and because of her concerted activities. The allega- tions aver that she was discharged in violation of Section 8(a)(4), (3), and (1). The evidence concerns her testimony and that of Supervisors Mulqueen and Crifasi. Micele testi- fied that she had some conversations with Mulqueen and Crifasi a few weeks after she gave testimony at the end of July 1974, as follows: Q. Could you tell us what happened? A. I was talking to Charlie (Crifasi). Q. Would you tell us what Charlie said to you? A. He asked me, "were you down at the hearing." I said "yes," he said "did you mention my name" and then Moe Mulqueen came over and said you were down at the hearing . . . I was down at the hearing before the National Labor Relations Board. I told the truth, exactly the way the truth was told to me and Moe Mulqueen said to me, first Charlie says that yes, I was supposed to go down, he says, I had gotten a subpena to go down. He said, but I did not go down because those subpe- nas were not legal, yours was not legal because they were not signed by a Judge, they were signed by an attorney. He said you did not have to go. Q. Who said that? A. Charlie and Moe said you should have kept your mouth shut. Q. What did Charlie say? A. He asked if I mentioned his name. I said I did. He asked me if I mentioned Larry Paul's name (a su- pervisor) and I said yes I did. Q. What else did he say, Charlie? A. He said I should have kept my mouth shut. Q. Anything else? A. As I told you, he told me and Charlie that about subpenas, that we got was not signed by the Judge, they were signed by an attorney. Q. What did Mulqueen say? A. Mr. Mulqueen told me, also that I should keep my mouth shut and he says all you people that went down to the Board are going to go out that door, one by one but instead we went out three's, two's and one's. And he said for coming down here and testifying to the Board, that we're going to be out one by one, out the door and I went out the door. It should be noted that these alleged threats were made in July and Micele was discharged October 23, 1974. While it is true that the time lapse between July and the end of October might be explained on the basis that the Company was biding its time so as not to create suspicion this seems to be unlikely in the instant case. Micele was discharged for rank insubordination having nothing to do with having given testimony. The alleged threats and the act of dis- charge were very remote in point of time. At the very least it must be said that the General Counsel did not sustain his burden of proof and I find that Micele was discharged for 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause. Furthermore both Mulqueen and Crifasi testified credibly and flatly denied having threatened Micele be- cause she gave testimony before the Board. Micele's testimony was interwoven with inconsistent statements. She said she was given a 6-month merit in- crease 2 weeks before it was due to buy her allegiance away from the Union. The Respondent's records, which were offered as an exhibit at the hearing, show that she in fact received this increase 3 weeks later than would normally have been the case because the Company changed its method of making merit increases. When faced with inaccurate and inconsistent testimony she said her memory is poor. There are frequent statements by her "that I can't remember; I had the virus very bad, I'm not myself; I don't remember dates because I've been very sick and I have high fevers and did quite a bit to my head recently." She iterated and reiterated during her testimony state- ments like: I am telling you the truth; I said I told you the truth which I did; As my oath of God; I will take the oath on the Bible; I could have said it because it was the truth; it is the truth; it is the truth, maybe I did say it; it is true. Her frequent protestations of the truth of her statements sounded hollow and were reminiscent of Shakespeare's quote from Hamlet: "The lady doth protest too much methinks." As a further example of untrue statements which are threaded through her testimony, other witnesses also called by the General Counsel as his witnesses flatly contradict what she said. Specifically Micele testified that she had given authorization cards to certain warehouse employees, including Irma Menusan, Joanne Becker, and Ruth Sanfi- lippo. Respondent's brief calls attention to the fact that Micele consistently maintained that she did not encourage or suggest that employees should sign these cards. She sought to minimize her role in securing employee signa- tures and returning them to the Union. Menusan testified she had been given a card by Micele who told her that almost everyone had signed the card at the warehouse and that she would be a fool not to sign. Micele testified that she knows Menusan and that Menusan had asked for a card. When asked if she told her that almost everybody else had signed, Micele replied, "I certainly did not." She continued with the statement that she "didn't say anything to Menusan." Becker testified on behalf of the General Counsel. She said Micele gave her a card and told her " ... it was for the Union and it's better if I join so I won't get in trouble." When Micele was asked if she told Becker that she should sign a card so that she wouldn't get in trouble, she replied "No, I did not." Sanfilippo also testified for the General Counsel and said " . . . a woman named Ann" gave her a card and said, the Union was trying to get in, would I be interested and I said "Yes," I thought I would be, and she explained about the nice union building and the dental plan and I signed the card. Micele was asked if she gave a card to Sanfilippo and she said "Yes." She was then asked if she had any conversation about the card. She replied, "I did not." Q. "Didn't you say anything to her?" A. "No." The three women who testified spoke forthrightly without hesitation and I credit their statements. While Micele might have forgotten one or two statements from the above three witnesses the fact that she could not remember any- thing about the three conversations brands Micele as an unreliable witness. It should be further noted that the rec- ord shows that there is no corroboration of Micele's testi- mony. Insofar as General Counsel places his major reliance in support of the 8(a)(1) allegations in the complaint on the testimony of Micele I conclude that his reliance on her testimony is misplaced. She is an incredible witness and I find it impossible to credit her testimony. I recommend that all allegations in the complaint dependent on Micele's testimony be dismissed. D. Other 8(a)(1) Incident There is an additional allegation in the complaint that Respondent, by Supervisor Larry Paul, interrogated Joseph Collins as to whether he signed a union card. This interro- gation is alleged as a violation of Section 8(a)(1) of the Act. In the absence of other credibly proven instances of inter- rogation the Collins incident appears to be insignificant standing alone and does not warrant the issuance of a remedial order. Arguably even if it is true I find it repre- sents an isolated instance and should be dismissed. E. Bohn 's Speeches to the Employees In the course of its campaign the Union issued a large number of flyers, some of which intimated that Bohn is tainted with Hitlerism by addressing him as Herr Gerhard Bohn, Heil Gerhard, etc. These references to his German heritage angered Bohn. The Union also made extravagant claims of what they would "get" the employees like a dollar an hour increase in wages, free dental exams and treat- ment, free eye exams and glasses, and many other improve- ments in vacations, holidays, insurance and severance pay. It is not the policy of the Board to police electioneering propaganda leaving the evaluation of such material to the good sense of a company's employees. However some of these numerous belittling bulletins contained language to the effect that Respondent did not give satisfactory benefits to its employees. In addition to the above types of "free" services which would be extended to employees who joined the Union, emphasis was placed on the medical services provided in the health center and clinic maintained for the benefit of union members. In order to counter certain of the Union's extravagant claims Bohn called a meeting in the facility on January 10 in which he read off to the employees a listing of the bene- fits then being given to the workers. Bohn for his part post- ed on the bulletin boards in the warehouse a sentence torn from context in the language of Bendix Corp. v. N.L.R.B., 400 F.2d 141 (C.A. 6, 1968), wherein it is stated, "The U.S. government and the NLRB do not guarantee employees that the collective bargaining process starts from where you are in wages, insurance, pensions and all other condi- tions of employment." From this quotation Respondent is- sued its own flyer wherein, in bold caps, it is stated, "As the court said, the truth is that you can lose wages and benefits in collective bargaining." This is true but Respon- LUDWIG MOTOR CORP. 645 dent drew from it a theme that emphasized the loss em- ployees could-incur in present benefits that is recurrent in its major speech. Bohn met with his attorneys and Robert Arquette, a la- bor relations official from the parent company, Dana, and rehearsed carefully permissible language in a 24-hour speech he delivered to all his employees on February 20, one day before the NLRB election of February 21. I am satisified that Bohn did not violate the 24-hour rule. He began his speech a few minutes after 9 am. and it was completed about 9:40 a.m. In the course of many rambling remarks he stated ideas, which in compendium, covered some of the following points: Bohn told the employees that they could lose bene- fits if the Union were elected; if the employees decide on a union Dana and Ludwig will have a decision to make and then significantly added that Dana is a big corporation and has operations all over-the United States; the Company has a 2-year lease on its present property; after the expiration of the 2 years the Company might move or close if the Union's demands are too high; bargaining begins with a blank piece of paper and all demands, including present benefits, are up for negotiation. It seems clear that the im- pression was implanted in the minds of the employees that if the Union won the election the Company might move or close its plant. Elsewhere in both the speech and in letters sent to all its employees Bohn said if the Union won, the Company would bargain hard, but in good faith. Fur- ther, that one of the union flyers stated it had a completed contract drafted for the Respondent to sign. Bonn's reac- tion was that no one would force Dana or Ludwig to sign a readymade contract or agree to outrageous demands of the kind set forth in the Union's literature. Every item would be bargained toughly and the Company would not agree to a prepared contract-no way; that while he would bargain in good faith he would not be kicked around. The fact that Bohn juxtaposed the statement that neither he, Ludwig, nor Dana would be kicked around; that Dana had many warehouses (approximately 50); this could hard- ly be expected to be understood in any other way except that Ludwig could be closed down or moved to another of Dana warehouses if the Union came in. Coupled with this thinly veiled threat is the material suggesting that bargain- ing could result in even loss of the present benefits. Respondent's witness, Elaine Dawes, gave a significant answer to one of the question put to her by Respondent: Q. Did he say anything about the possibility of los- ing benefits if the Union won? A. He did talk about that we could wind up losing them because he said you start bargaining . . . and so, you know nothing is guaranteed, everything starts fresh, you know. At another point in the speech employee Sanfilippo testi- fied: A. He said that if the Union came in, the contract would be started, he wouldn't just sign a contract .. . he would be started on a clean piece of paper. He said that everything that went into the contract would be negotiated. He said there is a chance of the original benefits that we already have, they might be lost. . he said that everything that went into-the con- tract would be negotiated and he would bargain in good faith for the people and try to, you know keep everything for us. But there is a chance of us coming out with less than we originally started with. The General Counsel in his brief points out that "the mere statement that the Union's demands might cause the Company to close is not sufficient to establish that its im- plication was based upon `demonstrably probable conse- quences' beyond the Employer's control." The speech con- tained no cost comparisons which might provide a factual basis for proving the plant would be forced to close if the Union represented the employees. As the Board stated, "Typically such threats are sought to be masked in the language of prediction, but this does not alter their character as coercive pronouncements in- tended as here to restrain employees in the free exercise of rights to organize and bargain. "5 . Similarly Bohn's admitted remarks about the possibility of closing the facility should the Union's demands be too high should also be considered unlawful. In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969) the stan- dards for evaluating an employer's prediction of the possi- ble effects of unionization are measured as follows: [The employer] may ... make a prediction'as to the precise effect he believes unionization will have on his company. In such case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably prob- able consequences beyond his control or to convey a management decision already arrived at to 'close the plant in case of unionization.... If there is any im- plication 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 the protection of the First Amendment. We therefore agree with the court below that "[c]onveyance of the employer's belief, even though sincere, that unioniza- tion 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." The employees who listened to Bohn's speech were not people schooled in the niceties of legal phraseology but were unsophisticated workers. This fact is clearly docu- mented by the testimony of employee Becker who was so nervous and scared that she could hardly speak.- However her only recollection of what Bohn said was that if the Union came in, he'd close the doors. On cross-examination she said: "I don't know how to explain it, he put a scare into all of us." In sum, Bohn's speech contained some truths mixed in 4 Mohawk Bedding Company, 204 NLRB 277 (1973). 5 Emerson Electric Co, 177 NLRB 75 (1969) 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with other statements the effect of which was to communi- cate to the employees that they might lose benefits in the course of good-faith but hard bargaining and union de- mands could force the Company-to either move to another of Dana's many installations or go out of business. The frequent allusions to loss of benefits and either moving or closing the business in its totality were thinly veiled threats. Taken overall I find and conclude that Respondent violat- ed Section 8(a)(1) of the Act by his speech of February 20, 1974. F. Challenged Ballots and Objections to the Election The election took place on February 21, 1974. The vote was 29 against the Union and 21 for it. There were nine challenged ballots. The ballots of Al Malazzi, Neal Ger- skon, and Chris Martinez were challenged because their names did not appear on the voter eligibility list. The Re- gional Office conducted an investigation on May 30, 1974, as the result of which these challenges were sustained since the three employees in question began their employment on January 29 and the eligibility date was for the payroll period ended January 26. The Regional Office concluded that the remaining six challenged ballots would not be de- terminative of the election. I sustain these challenges. The Union timely filed seven objections of which the Region dismissed Objections 3 and 4. Objections 5 and 6 allege that the 10 part-time employees were discriminatori- ly discharged. I have found that these allegations are with- out merit. I dismissed said allegations having found that this group of employees were discharged for business rea- sons. I overrule these objections. Objection 7 deals with averments made by employee Anna Micele. I dismissed the unfair labor practices con- cerning Micele having found that she is an incredible wit- ness and not worthy of credence. I also dismissed Objec- tion 2 having found that it is not supported in the record. However, as is explained supra I found that President Bohn's speech of February 20 was violative of Section 8(a)(1) since his threats to close or move the plant and his oblique statements that if the Union won the employees could lose their present benefits were illegal. I sustain this objection and recommend that the election of February 21, 1974, be set aside. I recommend further that a new rerun election take place at a time deemed appropriate by the Regional Director. Having reached this conclusion it appears unnecessary to deal with the issue of the authenticity and propriety of the solicitation of union authorization cards. The best test of the majority status of the Union will be determined by the results of the rerun election I have recommended. H. The Wage Increase of May 4, 1974 According to the testimony of Robert Arquette, Dana's industrial relations administrator, a meeting was held at the main office of the Dana Corporation in Toledo, Ohio. Present at this meeting from Ludwig were Bohn and Mul- queen; attorney Hancock and Tneshmann, Arquette and Joseph Shirra, who is the labor relations manager of the industrial relations staff. The purpose of the meeting was to discuss a general wage increase applicable to all ware- houses operated by Dana. At that time the industrial rela- tions staff was making wage surveys of all its plants. The purpose of these inquiries was to determine whether the work force was being properly paid in view of the infla- tionary pressures then being felt throughout American in- dustry. Arquette explained-that some of the Company's plants had existing union contracts. For example one plant in the Chicago area had a 3-year contract with the UAW which by its terms did not require a wage increase at that time. However it was felt that the employees were underpaid for the area and a wage increase was granted to these employ- ees. Dana took into consideration the area wages paid, by competitors of Ludwig. A further consideration was the fact that the employee turnover was very bad at Ludwig. In order to meet these problems Dana decided to grant a gen- eral wage increase of 40 cents per hour, effective May 4, 1974. In the course of this discussion the fact that Ludwig was then involved in NLRB proceedings came up. A business decision was made that unless Ludwig's workers were giv- en the same increase Dana had decided to grant to all its other employees, Ludwig would be below its competitors' wages for the area and Respondent would be unable to hire and retain competent help. This decision was ground- ed on sound economic reasons and is not at variance with the Board's position in similar situations. It should also be pointed out that this increase took place almost 4 months after the election took place. G. The Question of the Issuance of a Bargaining Order Without minimizing the seriousness of my finding that the president of the Company made a veiled threat to close or move the plant if the Union made outrageous demands, the problem still remains whether this 8(a)(1) violation ne- cessitates the issuance of a bargaining order. Stated in an- other way, has the Company committed outrageous and pervasive unfair labor practices sufficient to warrant an order to bargain within the meaning of the Gissel case? I think not. In my opinion the use of a traditional Board notice posted for 60 days would clear the air sufficiently so that a fair rerun election could be held at a time deemed appropriate by the Regional Director. Concluding Findings Assuming arguendo that the Union had a sufficient num- ber of valid authorization cards to establish its majority status when the demand for recognition was made on Jan- uary 16, 1974, the Gissel case, 395 U.S. 575, contains an important caveat. Even though the Union had been validly designated by a majority of Respondent's employees, Respondent's refusal to recognize and bargain with it, without more, is insufficient basis for recommending an order that Respondent recognize and bargain with the Union. In order to justify such an order it must be LUDWIG MOTOR CORP. 647 shown that Respondent engaged in unfair labor prac- tices marked by "outrageous" and "pervasive" unfair labor practices sufficiently serious that the possibility of erasing such practices and insuring a fair election by the use of traditional remedies though present is slight. In a recent case, Lasco Industries, Inc., 217 NLRB No. 1 (1975), the Board held "that all the unfair labor practices committed herein, even when considered in their totality, are not of such magnitude as to warrant the issuance of a bargaining order under the guidelines set forth by the Su- preme Court in Gissel Packing Co." As has been set forth in detail, supra, such is not the case in the instant matter. Accordingly, I have recommended the use of traditional remedies and further that a second election take place at a time deemed appropriate by the Regional Director. The record shows that Bohn's remarks to his employees that they might lose their present benefits, that if the Union won the bargaining would start with a blank piece of pa- per, and his reiteration of the possible loss of present bene- fits were calculated to impress upon them the likelihood of the loss of these benefits. Taken in the context in which they were uttered I find such statements to be a threat to take away such benefits and, as such, violative of Section 8(a)(1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed herein have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. This includes, for the reasons set forth above, a recommendation that Respon- dent cease communicating to its employees, by speeches or otherwise threatening, directly or indirectly, to close or move its warehouse or to take away benefits presently being accorded its employees. I shall further recommend that a second election take place after the traditional post- ing of notices to its employees assuring them of the protec- tion of the Act. CONCLUSIONS OF LAW 1. Ludwig Motor Corp. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Industrial Production Employees Union is a labor- organization within the meaning of Sec- tiooi.2(5) of the Act. 3. All employees including shipping and receiving, truckdrivers and lead persons excluding office clericals, su- pervisors and guards as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent's president, in the course of a preelection speech, said that if the Union won he might close or move the warehouse; he also said that the bargaining process starts with a blank piece of paper and could result in the loss of benefits then enjoyed by the employees. By so doing Respondent engaged and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 5. The refusal of Respondent to recognize and bargain with the Union on the basis of authorization cards did not constitute a violation of Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact and conclusions of law, pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Ludwig Motor Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Respondent's president saying that if the Union won he might close or move the warehouse; and also say- ing that the bargaining starts with a blank piece of paper and could result in the loss of employee benefits. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor orga- nization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its Melville, Long Island, New York, facility copies of the attached notice marked "Appendix." 7 Copies of the notice on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's 6 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. 7 In the event that the Board's Oider 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorized representative, shall be posted by Respondent spondent to ensure that said notices are not altered, de- immediately upon receipt thereof and be maintained by it faced, or covered by any other material. for 60 consecutive days thereafter, in conspicuous places, (b) Notify the Regional Director for Region 29, in writ- including all places where notices to employees are cus- ing, within 20 days from the date of this Order, what steps tomarily posted. Reasonable steps shall be taken by Re- Respondent has taken to comply herewith.