Marathon Metallic Building Co.

MARATHON METALLIC BUILDING CO Marathon Metallic Building Company and Sheet Metal Workers' International Association Local No. 1. Cases 38-CA-2429 and 38-RC-1751 May 26, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By MEMBERS FANNING, PENELLO, AND WALTHER On February 9, 1976, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding Thereafter, the Respondent filed exceptions and a supporting brief, and the Gen- eral Counsel filed a brief in support of the Adminis- trative Law Judge's Decision 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order 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 and hereby orders that the Respondent, Marathon Metallic Building Company, El Paso, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order IT IS FURTHER ORDERED that the election held on July 16, 1975, in Case 38-RC-1751 be, and it hereby is, set aside, and that said case be, and it hereby is, remanded to the Regional Director for Region 13 to conduct a new election when he deems that circum- i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over- rule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products The 91 NLRB 544 (1950) enfd 188 F 2d 362 (C A 3 1951) We have carefully examined the record and find no basis for reversing her findings In holding that Ginn s speech of July 15 violated Sec 8(a)(1) we do not rely on the Administrative Law Judge s finding that Ginn threatened to change Respondents pay policy pertaining to temporary assignments if the Union won the election In agreeing with his colleagues that the July 16 1975 election be set aside Member Walther relies entirely on Respondents July 15 8(a)(1) con duct He does not rely on the speech delivered on June 6 because in his view the statements contained in the speech are protected by Sec 8(c) 121 stances permit the free choice of a bargaining repre- sentative [Direction of Second Election and Excelsior foot- note omitted from publication ] DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge A hearing was held in this consolidated proceeding at Peoria, Illinois, on November 11-13, 1975 On May 28, 1975, the Charging Party-Petitioner (herein referred to as the Union) filed a petition in Case 38-RC- 1751, and on July 16, 1975, an election was conducted by the National Labor Relations Board in a stipulated appro- priate unit of production and maintenance employees at the El Paso, Illinois, plant of the Respondent-Employer (referred to herein as the Respondent or the Company) The Union lost by a 14-14 tie vote, with no challenged ballots The Union filed timely objections The charge in Case 38-CA-2429 was filed by the Union July 23 and served on the Respondent July 25, 1975 The complaint was issued September 11, 1975, and amended at the hearing On September 22, 1975, the Regional Director of Region 13 of the Board issued a Report on Objections, Order Au- thorizing Consolidation of Cases, and Direction of Hear- ing, in which he found that the objections in Case 38-RC- 1751 raise credibility issues and include allegations which are the subject of the complaint issued in Case 38-CA- 2429 involving the same parties, and authorized the Offi- cer-rn-Charge of Subregion 38 of the Board to consolidate the two cases for hearing On September 24, 1975, the Offi- cer-in-Charge of Subregion 38 issued an order consolidat- ing cases and notice of consolidated hearing The issues are whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, and interfered with the July 16, 1975, election by interrogating employees, ' promising them benefits if they refrained from supporting the Union, threatening imposi- tions of a freeze on wages and benefits, loss of benefits, and refusal to bargain if the Union won the election, and imposing a freeze on wages and benefits because the Union filed the petition The Union further contends in its objec- tions, and the Respondent denies, that the Respondent also interfered with the election by engaging in surveillance of a union meeting and by the presence of a supervisor in the voting area, and that the Board failed to conduct a fair election because its agents failed to remove "Vote No" signs from the voting area Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent,2 I make the following i An allegation that Plant Manager Basil Sluder interrogated employees Juiy 14 1975 was dismissed at the hearing No brief has been received from the Union 224 NLRB No 20 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Respondent admits, and I find, that it is a Texas corporation with a place of business located at El Paso, Illinois, where it is engaged in the manufacture of steel buildings , during the past 12 months the Respondent sold and shipped from its El Paso facility finished products val- ued in excess of $50,000 to points outside Illinois, pur- chased and caused to be delivered to its El Paso plant goods and materials valued in excess of $50,000 directly from outside Illinois, and received gross revenue in excess of $500,000 The Respondent admits , and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES The Respondent's El Paso, Illinois, plant began opera- tions January 1, 1973 The Respondent admits, and I find, that the following persons are its supervisors and agents A R Ginn, vice president of manufacturing, Basil L Slu- der, plant manager, and Thomas C Harkness, foreman As stated above, the Union filed a petition for an elec- tion May 28, 1975 During the critical period between then and the day the election was held, July 16, 1975, the com- pany plant manager made a speech on June 6, the vice president of manufacturing made a speech on July 15, and the Company mailed copies of an antiunion pamphlet to all the employees The Union passed out prounion cam- paign literature and held several after-work meetings with employees at the local VFW hall Posters were posted throughout the plant, some of which said, "Don't take a chance, Vote No", others, in caricature of those, said, "Take a chance, Vote No " A Plant Manager Sluder's June 6, 1975, Speech to Employees The complaint alleges that in tins speech Sluder prom- ised benefits if the employees refrained from supporting the Union, threatened an indefinite freeze on wages and other benefits if the Union won the election, and imposed such a freeze because the petition was filed Sluder called all the employees together June 6 and in the presence of all supervisors and management read them the following speech On May 28th, David Todd of the Sheetmetal Work- ers Union filed a petition with the National Labor Relations Board for an election to determine if this plant will become unionized And you know Metallic doesn't want this union and because we don't think it is good for you guys, we are going to fight it by every legal means This is now a legal matter that is in the hands of our attorneys According to federal law, the Company could be accused of unfair labor practices if we were to make any improvements in wages or other benefits while this petition is pending, and consequently, all wages and other benefits are now frozen at their current lev- els If the Company wins the election, wages and other benefits will be unfrozen immediately If the union wins the election, all wages and other working condi- tions will be frozen under law during negotiations There is no time limit on how long negotiations can last, and they can last indefinitely The Respondent has in the past given both cost-of-living and merit wage increases Vice President Ginn testified that whenever the economic condition of the Company is right and the inflation rate is up he suggests a cost-of-living increase, within a certain range, to the company president and, if they decide to give such an increase, he consults the plant managers regarding the exact amount Cost-of-living increases were given in 1973 around July 1, and in 1974 on March 4 or 5, July 1, 2, or 3, and September 29 or 30 During 1974 all employees were reviewed for merit in- creases 3 periodically in January, April, July, and Septem- ber by Plant Manager Sluder and Plant Superintendent Helmontroller,4 on the basis of the economic situation, competition in the area, and employee attitude, seniority, flexibility, and ability No general review was made in Jan- uary 1975, because of the Company's poor economic situa- tion at the time, but three exceptional recently hired em- ployees were given raises 5 Because of the relatively low unemployment rate in the area and because the Respon- dent had some employees it didn't dare lose, all employees were reviewed again in April 1975 and 14 were given merit increases No cost-of-living increase has been given since Septem- ber 1974, and no merit increases were given in January 1975 as had been done the year before At the time the petition was filed in May, no future cost-of-living or merit review was being considered It is well established that the law does not require an employer to freeze wages and benefits during the pendency of an election petition, the general rule being that an em- ployer must treat its employees as it would if a union were not in the picture 6 In my opinion, Sluder failed to abide by the rule in his speech It cannot be found that the employ- ees necessarily expected wage increases during the penden- cy of this petition, because there was no clear and regular 3 There is no evidence regarding company practice on merit increases in 1973 4 Plant Manager Studer testified to this effect Vice President Ginn testi- fied that only a large cost-of-living increase was given in September 1974 (50 cents according to Studer, as compared with 12 cents in July and 10 cents in March 1974) 5 Plant Manager Studer testified that such merit increases had occasional ly been given at times outside the regular quarterly reviews to such excep tional new hires 6 American Technical Machinery Corporation 173 NLRB 1355 (1968), The Great Atlantic & Pacific Tea Company Inc 166 NLRB 27 fn I (1967) Accord N L R B v Lucy Ellen Candy Division of F & F Laboratories Inc 517 F 2d 551 554 (C A 7 1975) MARATHON METALLIC BUILDING CO 123 past practice on which such an expectation could reason- ably be based By the same token, however, it cannot be found that they reasonably expected not to receive any in- creases either Thus, although the Respondent has failed to give cost-of-living increases since September 1974, and failed to review the employees for merit increases in Janu- ary 1975 for economic reasons, it made no announcement on those or any subsequent occasions before June 6 that wage and benefits were frozen To make such an an- nouncement at this time would therefore lead the employ- ees to believe that their wages and other benefits had not been frozen until then, even though no improvements were in fact under consideration 7 Moreover, business consider- ations are not given as a reason for the Respondent's con- duct Although Sluder implied that the Respondent was motivated by fear of being accused of unfair labor practic- es if it improved wages and working conditions, it is not contended that the Union had made any such threat and no other basis for any such fear is advanced 8 Nor did the Respondent explain to its employees that improvements were merely being deferred or postponed until after the election solely in order to avoid the appearance of interfer- ing with their free choice and that such improvements would be made after the election regardless of how it came out 9 On the contrary, in a speech advising employees that the Company did not want the Union and that it would not be good for them, Sluder suggested that the employees' selection of the Union would result in a wage freeze "with no time limit" during negotiations with the Union (with a lurking implication of a long legal battle), while rejection of the Union would enable the Respondent to confer wage increases and other benefits immediately I find that the message intended and conveyed was that, by the Union's conduct in filing a petition for an election, the employees were being deprived of benefits they might otherwise have received and that these benefits would be restored immedi- ately if the Union lost the election but would not be re- stored for an indefinite period of time if the Union won the election I conclude that the Respondent thereby coerced, restrained, and interfered with the employees' right to a free choice, in violation of Section 8(a)(1) of the Act to B The Pamphlet "Fact and Fiction About Unions," and Vice President Ginn's Speech to Employees July 15, 1975 The complaint alleges that threats were made in the pamphlet, which the Respondent mailed to all employees during the critical period , and in the speech to all employ- 7 See McCormick Longmeadow Stone Co Inc, 158 NLRB 1237 (1966) 8 See Grede Foundries, Inc, 205 NLRB 39 42 (1973) Cf JJ Newberry Co, Inc v NLRB 442 F 2d 897 (CA 2 1971) 9 Cf Sugardale Foods, Inc, 221 NLRB 1228 (1976) The Singer Company Frtden Division, 199 NLRB 1195 (1972), Montana Lumber Sales Inc (Dela ney & Sons Division) 185 NLRB 46, 49 (1970) Uarco Incorporated 169 NLRB 1153 (1968) to See Aircraft Hydro-Forming, Inc 221 NLRB 581 (1976), Gary Aircraft Corporation 193 NLRB 108, 121 (1971), Big Three Industrial Gas & Equip ment Co '81 NLRB 1125 (1970), reversed on factors not present here 441 F 2d 774 (C A 5, (1971), American Technical Machinery Corporation supra The Great Atlantic & Pacific Tea Company Inc, supra I have given careful consideration to the other cases called to my attention by the Respondent and have concluded that they are inapposite ees by Vice President Ginn on July 15, the day before the election The pamphlet, "Fact and Fiction About Unions," in question-and-answer form, sets forth proemployer answers to theoretical questions about the effects of unionization The portion objected to by the General Counsel gives the following answer to a question as to whether a union con- tract would give employees higher pay and benefits There is certainly no guarantee that a contract would provide higher pay and benefits The contract would provide only what the company agreed to give and no more It is alleged that Vice President Ginn made two threats in his speech The overall purpose of the speech was to persuade the employees to vote against the Union in the election the next day Ginn made reference to the cam- paign bulletins distributed among the employees by the Union, holding up a sheaf of them He pointed out work- ing conditions enjoyed by the employees of the El Paso plant and compared them favorably with wages and condi- tions at various unionized plants in the area and elsewhere He recited instances where unions obtained little if any improvements after prolonged negotiations with other em- ployers Five employees testified to the first alleged threat Em- ployee Urich testified that Ginn told the employees, among other things, "that the Union wouldn't dictate the contract, but the Company would, and the Company would say what was what, not the Union " Gary McClure testified that Ginn said, "about the con- tract, if Marathon did not want it to be signed or make a good-enough contract, that they could drag it out for a year, a year and a half, and then the employees would get tired of it and ratify anything that the Company wanted them to ratify " Employee Allan Cline testified that one of the things Ginn said was, "that the Company would write the con- tract," and that "there would be nothing special, anything extra than what we have now, given to us, if the Company didn't want to give it to us " Welder John Childers testified that Ginn told them that if the Union was in "the Company would have control over the contract and they could make it any way they wanted to, the employees wouldn't have nothing to do with it, that the Company could make up their own contract and that the Union or the employees would have no say so " Child- ers thereafter amended this testimony to the effect that Ginn only said the employees would have no say so, not that the Union would have no say so Ray Dirks testified that Ginn told the employees "that the Company would make the contract and we would vote on it" Vice President Ginn denied that he told the employees the Company would write the contract if the Union won the election However, I find that he did make a statement to that effect, based on the essentially mutually corrobora- tive testimony of five employees set forth above, the ab- sence of any corroboration for Ginn's denial, and the im- probability of Ginn's suggestion of what he might have said to cause so many employees to misunderstand him I 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also discredit Ginn's uncorroborated testimony that he promised the employees he would bargain with the Union in good faith if it won the election The other threat alleged to have been made in Ginn's speech had to do with the rate paid to employees tempo- rarily assigned to work outside their regular classification In this connection, it is undisputed that it is the Respondent's practice to continue to pay employees at their permanent wage rate for work they do on temporary assignment to lower paying jobs during the workday After careful study of the testimony on this issue, I credit the essentially mutually corroborative testimony of em- ployees Urich, McClure, and Cline, and discredit Ginn's uncorroborated denial, to the effect that when an employee named Kurt Backer asked Ginn, at the meeting, whether with a union an employee would have to work at a lower rate or would retain his same wage rate if he were tempo- rarily assigned to a lower paying job, Ginn told the em- ployees that the employee would be paid at the lower rate Based on Ginn's and Sluder's testimony, corroborated by Urich and Cline, I find that Ginn then added that Plant Manager Sluder had worked at a plant of Stran Steel Com- pany and asked Sluder to explain the union contract provi- sion there Sluder told the employees that upon a tempo- rary transfer the employee was paid at his own higher rate for the first 4 hours and at the lower rate for the rest of that working day If employees select a union to represent them in a Board- conducted election, their employer has a duty to bargain with that union in a good-faith effort to reach agreement Where, as here, an employer tells its employees that even if they select the Union to represent them, the company will write the contract, the contract will provide only what the company agrees to and no more, and that the contract will give the employees less than they are now receiving, it is telling the employees, in effect, that it will not bargain in good faith and that it will be futile for them to select the union The coercive impact of these statements was en- hanced in the minds of the employees by following hard upon the Company's imposition of a freeze on their wages and benefits, and conditioning the continuation of the freeze upon the choice they would make in the election The Board has said, "There is no more effective way to dissuade employees from voting for a collective-bargaining representative than to tell them that their votes for such a representative will avail them nothing" I I When an em- ployer impresses the futility of union activity on employees in such a manner, it interferes with their right under the Act to engage in such activity Accordingly, I conclude that the Respondent violated Section 8(a)(1) by threatening to reduce their wages 12 and to refuse to bargain in good faith 13 if a majority voted for the Union 11 The Trane Company (Clarksville Manufacturing Division) 137 NLRB 1506, 1510 (1962) 12 Renner Plumbing, Heating and Air Conditioning Inc, 172 NLRB 1514 1516 (1968), Famco, Inc, 158 NLRB 111, 114 (1966) 13 Pacific FM, Inc d/b/a Radio Station K-101, 215 NLRB 602 (1974) Detroit Plastic Molding Co 213 NLRB 897 (1974) Flodin, Inc 206 NLRB 478 (1973) Jacksonville Industries Inc 197 NLRB 347 (1972) As Vice President Ginn did not confine his remarks to a mere comparison of the advantages enjoyed by the Respondent s employees with those of unionized C Alleged Interrogation of Employees 1 It is alleged that Vice President Ginn interrogated welder Lloyd Urich Urich testified on direct examination that one evening a week or two before the election, he and Vice President Ginn were shooting pool at the VFW hall in El Paso when "we just got talking and I says of Mr Ginn, I says, `This-uh' what I've got to say to him-'let's go in the back room and say it' " When the two of them went in the backroom Urich continued, He said, "Well, how did this get started and what's it all about9" I said I knew what it was all about, "It's over these welders wages dispute, I know that this is how it got started " He says "Who started it " I told him, I says, even if I knew I wouldn't tell him That was about the size of it When asked on cross-examination whether he and Ginn had been saying anything about the union campaign while they were shooting pool, Urich responded, No, but he mentioned something, he said, "I didn't want to talk in front of anybody there", I said, "Let's go in the back room", and that was it Urich further explained that Ginn had asked him, "what this was all about, and how it got started," at the pool table, without mentioning either the Union or the petition, and that Urich responded, "What I have got to say, let's go in the back room " Ginn denied that he invited Urich into the backroom or that he asked him any questions As Urich's testimony is too unsubstantial, inconsistent, and incoherent to be credited, I credit Ginn's denial and find that this allegation is not supported by credible evi- dence 2 Lloyd Urich testified that on the day of the election, July 16, 30 to 45 minutes before the election, Plant Manag- er Sluder came to his work station and told him he was to be the union observer As they walked toward the lunch- room, which was to be the voting place, Sluder told Urich he did not have to be the union observer, that Urich re- sponded, "Well, if I don't they will ask for somebody else so I just as well go " Urich was the union observer at the election I am inclined to credit this simple, straightforward testimony over Sluder's rather complicated and involved denial However, I find that the remark made by Sluder did not constitute interrogation and was not coercive in any respect 3 Employee Kenneth Stewart testified that on this same day, after he had a conversation with employees Urich and Snyder, Plant Manager Sluder came up to him and said, "Don't let those Union men try to change your mind, make up your own mind," or "Don't let those two Union men change your mind, vote the way your want to vote " Ac- cording to Sluder, he told Stewart, "Ken, are they really working on you The thing for you to do is vote-is to make your own decision " I find no substantial difference in these versions of what was said and can construe none of them as interrogation or coercion plants or a prophecy as to the possible course of good -faith negotiations the cases relied on by the Respondent are not applicable MARATHON METALLIC BUILDING CO 125 4 Employee Gary McClure testified on direct examina- tion that, before the voting on election day, Harkness "asked me what I thought of the Union," and when Mc- Clure said he did not know, Harkness said he did not think "the Union would be good for Metallic or good for me " On cross-examination, McClure testified that Harkness "asked me what I think of the Union and whether it will get in or not," and when McClure replied he did not know, Harkness "stated that he didn't think that the Union would be good for Metallic or us, the employees " Upon being shown his pretrial affidavit in which he had stated, "Hark- ness asked me either what I thought about the union, or how I thought the vote would go," McClure explained that at the time he gave the affidavit he could not remember which question was asked and "put that in to cover both of them " Harkness denied making either statement to Mc- Clure on July 16, or having any conversation at all with him that day Harkness was aware how McClure stood, he said, as McClure did not try to hide it In view of Mc- Clure's inability to pin down what Harkness was supposed to have said to him, I credit Harkness and find that he did not question McClure at all It is concluded that the allegations of interrogation should be dismissed IV THE OBJECTIONS I recommend that Objections 1(d) and (e), based on the conduct found above to have violated Section 8(a)(1) of the Act, be sustained, and that Objection 1(b), based on allega- tions which are dismissed, be overruled Objection 1(a) alleges that the voters were intimidated by the presence of Supervisor Harkness in the voting area When Sluder and Ginn told Foreman Harkness at 3 p in to have his people in the lunchroom voting area at 3 10, Harkness directed his employees to shut down their ma- chines and line up He then led them to the voting area Three witnesses testified to what happened when they all got there Gary McClure, one of the employees led to the voting area by Harkness, was very self-contradictory about what happened He said that Harkness remained in the voting area 5 or 6 minutes before being escorted out, telling em- ployees where to stand, where to get their ballots, and where to vote He then changed his estimate of the length of time Harkness was there to 1 minute, and he seemed to have several different versions of where Harkness was standing during this time Union observer Urich testified Harkness was in the voting area 5 or 10 seconds and that a Board agent "went right over" and led him away Harkness said he got about 20 feet inside the area when an agent told him to leave and he did so after being there 20 or 30 sec- onds I find that Harkness remained in the voting area only momentarily, and, based on Urich's undisputed assertion that the only voters present consisted of one employee in- side the voting booth and the employees behind Harkness, none of whom voted before he departed, that nobody was intimidated by this incident I recommend that Objection 1(a) be overruled Objection 1(c) alleges that the Company engaged in sur- veillance of union activities and meetings This allegation has to do with Vice President Ginn and Foreman Floyd Von Minden's being at the El Paso VFW hall on the night before the election at the time the union organizers had scheduled a meeting with employees Union International Organizer David Todd testified that he called a meeting with the employees for 5 45 that eve- ning immediately after work to be held in a meeting room at the VFW hall where the union representatives had met with employees previously during the campaign Contrary to his past practice, no written notices were issued, the meeting being announced at a meeting held there the week before and employees being reminded by word of mouth The purpose of the meeting, Todd said, was to respond to whatever management might say to the employees during the last day before the election Lloyd Urich is the VFW quartermaster and as such rents one of the rooms of the VFW hall to the Union and other unions and organizations for meetings and visits the hall daily He testified that it was Vice President Ginn's habit, whenever he came from Houston, always to visit the VFW hall "to shoot a little pool and drink a little beer" Al- though Ginn was not a member, he came to the hall "Lots of times," and "as far as I was concerned, Mr Ginn was welcome " Employee Allan Cline's testimony He had played pool against Vice President Ginn a couple of times in the past and when he encountered Ginn in the plant that day he challenged Ginn to a game that night Although Cline did not say where, he assumed Ginn would understand him to mean at the VFW hall where Cline was a member Cline also did not tell Ginn about the scheduled union meeting, and although he mentioned no specific time to Ginn, Cline was thinking in terms of 7 or 8 p in , after he had dinner and cleaned up Cline went to the VFW hall right after work to attend the union meeting and other employees as well as some VFW members not employed by the Compa- ny were in the bar where it was customary for employees to stop for a beer or two before union meetings began Todd and other union organizers were also there Cline observed Ginn and Von Minden enter the bar, and while they were there International Organizer Todd or one of the other or- ganizers announced in a loud voice which could be heard by everyone in the bar that there was going to be a union meeting Cline told Ginn he was there for the meeting, and Ginn asked how long it would take Cline said he did not know, and Ginn and Von Minden left after playing a game against employees Backer and Dirks The union meeting was held after they left, from around 6 until 6 30 or 7 p in Employee Ray Dirks said when he and Backer arrived at the VFW hall that evening for the union meeting they started a pool game, as he usually did while waiting for everybody to get there When Ginn and Von Minden came in, Ginn challenged the table Todd saw them and an- nounced three times that "the meeting would be postponed for a few minutes, that everybody wasn't there " The super- visors left after their game, and the meeting began 20 or 25 minutes after Dirks first arrived at the hall A R Ginn testified that he did not know that a union meeting was scheduled for that evening, and at the time Cline invited him to shoot pool, he told Cline he had a dinner engagement that evening and would have to play 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before 7 p in He left the plant at 5 45 and when he arrived at the hall he bought a drink and talked with Cline and other employees there Backer asked if he was ready to play, but Ginn said he was waiting for Von Minden who would be his partner Ginn saw three men he did not know come in and go out of the bar After Von Minden arrived, they racked up and began a game against Backer and Dirks, when one of the three men, later identified to Ginn as Todd, "ran up and down the bar" about three times "punching employees" and others, and calling out in a loud voice, "We have decided to hold a Union meeting" and "we're going to wait till a few more guys get here, we're expecting some more people " With all the commo- tion, Ginn said, he and Von Minden felt uncomfortable and left as soon as their game was over He was there about 10 minutes, he said Foreman Von Minden testified that Ginn told him at work they were asked to meet employee Cline at the VFW hall to shoot a game of pool Von Minden did not know about the union meeting and when he arrived at the hall Ginn was already there Two people were finishing a game, and while they waited to play, Todd came out of a back- room and walked up and down in front of the bar telling the people out loud that "we are going to have a Union meeting, but we are going to hold it up for a while, we are expecting more people " Von Minden and Ginn had one drink while they shot a game against Dirks and Backer, and Todd repeated his announcement When the game, which lasted about 10 minutes, was over Von Minden and Ginn left the hall because they did not feel comfortable there Whichever version of the details one accepts, several things are clear Vice President Ginn frequently visited the VFW hall when he was in El Paso to play pool and have a drink, neither Ginn nor Von Minden knew there was to be a union meeting, employee Cline invited Ginn to play pool that night and Ginn invited Von Minden to be his partner, the two of them remained in the hall only long enough to have a drink and play one game as soon as the table was available, they left after one game because of the an- nouncement that a union meeting was to be held in a room of the hall. As the Board has said,14 the mere presence of management officials "without more specific evidence that it was not for a legitimate purpose, or that it was for the purpose of observing the meeting, establishes neither sur- veillance of the meeting nor a reasonable basis for an impression of surveillance in the minds of employees in attendance of the meeting " Accordingly, I find no merit in Objection 1(c) Objection 2 alleges improper conduct of the election by the Board because its agents failed to remove "Vote No" signs from the voting area It is undisputed that yellow posters saying "Don't Take A Chance, Vote No" were posted throughout the plant during the campaign, including the lunchroom, before the election was conducted International Organizer David Todd, who indicated that he had attended preelection conferences before, attended the one held before this election in the lunchroom, which lasted about 40 minutes Although he did not inspect the voting area, he observed two "Vote No" posters there One was on a pillar on the west side of the room behind and to the left of the Board table The other was a "Vote No" sign different from the "Don't Take A Chance" poster and of a different color, and was on a trash can close to the pillar The two signs were still there when he left the area before the voting but he said nothing about them, Todd testified, because, "I didn't put the damn thing there," and "It is not my responsibility as to what goes on in that plant " Todd returned to the area to take part in the vote count, and after the ballots had been counted, Todd told one of the Board agents, "I noticed prior to my leaving, that some `Vote No' signs were in the area and did the Company remove them or did you remove them?" The agent replied "that unfortunately they had not been discovered by the Board prior to the voting, and that they were removed by the Board sometime after the voting started " Union observer Urich did not see any of the signs in the lunchroom on the day of the election, he said, but one of the Board agents told him he tore the posters down during the election Urich speculated he did not see the posters that day because they were on the (west) wall of the room behind him as he sat at the ballot table as an observer, but he knew there were no such posters in the area when the election was over Employee Kenneth Snyder claimed to be the first em- ployee to vote, and testified that he saw two of the "Vote No" posters-one on the wall behind the observers, and the other on the south wall Ray Dirks voted second He saw one of the "Vote No" signs on the west wall behind the observers' table as he left the area after he voted, but did not see it before he voted He did not notice one on the south wall, and he did not see one on the garbage can where he had seen such a sign before election day Allan Cline was in the third group to vote, 15 minutes after the polls opened He estimated that 13 or 14 employ- ees voted ahead of him He saw only one "Vote No" poster in the voting area, on the south wall by a Coke machine and a coffee machine I do not see how I can find as a fact whether or not there was a "Vote No" poster in the voting area and if there was one, where it was posted, on the basis of this contradictory testimony Moreover, even if there had been such a poster remaining there for a time, I do not believe it would have unduly influenced any of the voters who were already ac- customed to them, having seen posters like that throughout the plant and in the lunchroom during the campaign Fi- nally, it seems to me that the Union cannot rely on the alleged failure of a Board agent to remove such a poster or posters as a ground for having the election set aside when its own experienced international organizer was so derelict in his duty to make an inspection of the voting area and to request the removal of such posters before the voting be- gan I therefore recommend that Objection 2 be overruled V THE REMEDY 14Atlanta Gas Light Company 162 NLRB 436 (1966) Having found that the Respondent has engaged in unfair MARATHON METALLIC BUILDING CO 127 labor practices, I recommend that the Respondent be or- dered to cease and desist therefrom and from any like or related conduct, and to take certain affirmative action de- signed to effectuate the policies of the Act As I have found that the Employer has engaged in con- duct which interfered with the election conducted in Case 38-RC-1751, I recommend that the election be set aside 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 ORDER'S The Respondent, Marathon Metallic Building Compa- ny, El Paso, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Imposing, or threatening to impose, a freeze on wag- es and benefits because of union activities in the plant or making any promises based thereon, or threatening to re- fuse to bargain in good faith with Sheet Metal Workers' International Association Local No 1, or any other labor organization freely chosen by its employees as their repre- sentative (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization guaranteed by Section 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Post at the Respondent's plant at El Paso, Illinois, copies of the attached notice marked "Appendix " 16 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 13, or the Officer-in-Charge of Subregion 15 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 16 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 Posted by Order of 38, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material (b) Notify the Regional Director for Region 13 or the Officer-in-Charge of Subregion 38, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith IT IS FURTHER RECOMMENDED that the allegations of unlaw- ful conduct not specifically found to be violative of the Act in Case 38-CA-2429 be dismissed IT IS FURTHER RECOMMENDED that the election conducted in Case 38-RC-1751 on July 16, 1975, be set aside 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT impose or threaten to impose a freeze on wages and benefits because of union activities in the plant or make any promises based thereon, or threaten to refuse to bargain in good faith with Sheet Metals Workers' International Association Local No 1, or any other labor organization, freely chosen by our employees as their representative WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization guaranteed by Sec- tion 7 of the National Labor Relations Act, as amend- ed MARATHON METALLIC BUILDING COMPANY