Chrysler Airtemp South Carolina, Inc.

CHRYSLER AIRTEMP SOUTH CAROLINA Chrysler Airtemp South Carolina, Inc. and Sheet Met- al Workers International Association, AFL-CIO, Local Union No. 399. Case 11-CA-6004 June 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On December 17, 1975, Administrative Law Judge Stanley N Ohlbaum issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed a brief in support of the Administra- tive 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 his 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 complaint be, and it hereby is, dis- missed in its entirety ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge s resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings In adopting the Administrative Law Judge's finding that the evidence has not established that Supervisor Dalzell stated to employee McDonald I was thinking about putting you on my staff until after the way you voted yesterday," we consider it unnecessary to pass upon the Administrative Law Judge's alternate finding that even if the remark had been made no viola Lion would have occurred DECISION PRELIMINARY STATEMENT, ISSUES STANLEY N OHLBAUM Administrative Law Judge This proceeding under the National Labor Relations Act, as amended (29 US C Sec 151, et seq, herein the Act), based upon complaint of the Board's Regional Director for 427 Region 11 (Winston-Salem, North Carolina), dated April 9, growing out of a charge filed by the Charging Party Union on January 31 and amended March 6, was heard in the Winnsboro, South Carolina, County Courthouse on June 20 and 30 and July 1, 1975, with all parties participat- ing throughout by counsel or other representative, who were afforded full opportunity to present evidence and ar- guments Briefs were received from General Counsel and Respondent on September 22, 1975, time for filing thereof having been extended upon unopposed application of counsel The principal issues presented are whether Respondent Employer has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act through interrogation of em- ployees concerning their union affairs, activities, and sym- pathies, through creating the impression that employees' union activities were under Respondent's surveillance, and through various statements, written as well as oral, said to have constituted economic threats, including threats of plant closure, in the event of unionization Record and briefs having been carefully considered, upon the entire record and my observation of the testimo- nial demeanor of the witnesses, I now make the following FINDINGS AND CONCLUSIONS I JURISDICTION At all material times, Respondent Chrysler Airtemp South Carolina, Inc, a subsidiary of Chrysler Corporation, has been and is a Delaware corporation with a plant in Winnsboro, South Carolina, for manufacture of air-condi- tioning and heating units During the representative year immediately preceding issuance of the complaint, Respon- dent received at that plant, directly in interstate commerce from places outside of South Carolina, goods and materials valued in excess of $50,000, during the same period, Re- spondent at that plant also manufactured and sold and thence shipped, directly in interstate commerce to places outside of South Carolina, products valued in excess of $50,000 I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that at all of those times the Charging Party Union has been and is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background' Respondent, a fully owned subsidiary of Chrysler Cor- poration, manufactures air-conditioners, heating units, and accessory parts, exclusively for marketing by Chrysler Air- temp Division It is one of three such plants in the United States supplying Chrysler Airtemp Division, the others i Established in part through uncontroverted credited testimony of Respondent's vice president and general or plant manager Richard L Voorhees, and its personnel manager, Joseph Frank Vella 224 NLRB No 65 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being located in Dayton, Ohio, and Bowling Green, Ken- tucky Respondent's only plant, in Winnsboro, South Car- olina, was opened for production in December 1972 In 1973 unsuccessful organizational campaigns were wit- nessed by Respondent's production and maintenance em- ployees These campaigns were conducted by United Au- tomobile Workers (UAW, March-April) and by Sheet Metal Workers Local 399 (Charging Party here, July-Au- gust) In a November (1973) election, out of approximately 285 eligibles, 99 voted for Local 399, 23 for UAW, and around 125 for no union No objections to the election or unfair labor practice charges were filed However, organi- zational attempts by these unions continued thereafter The year 1974 is pictured as almost economically disas- trous for Respondent and its affiliates, with a $20 million loss for Chrysler Airtemp Division (atop a similar $20 mil- lion 1973 loss) and a $73-1/2 million loss for Chrysler Cor- poration in the fourth quarter alone In that year (1974), Chrysler Airtemp Division closed over 40 percent of its sales branches, and in November closed its Canadian man- ufacturing facility During the same year, Chrysler Corpo- ration reduced its Dayton, Ohio, force over 20 percent and its total force by about 100,000 employees Commencing in June 1974 and continuing to at least the time of the hearing of the instant proceeding in mid-1975, Respondent has re- ceived steadily declining production requests from Chrys- ler Airtemp Division (Respondent's sole "customer"), as- cribed to severe declines in the building construction industry (which absorbs Respondent's products) as well as to the generally depressed condition of the air-conditioning industry Consequently, Respondent was constrained to re- duce its workshifts from three to one, to cut down its as- sembly lines, and to close down its plant intermittently from July 1974 on for varying lengths of time, with reduc- tions in force in its managerial and supervisory as well as production and maintenance personnel From March 1974 to July 1, 1975, Respondent's total work force has shri- velled from 386 to around 190 It is within the foregoing unquestioned frame of refer- ence that events here in question must be assayed In October 1974, Sheet Metal Workers Local 399 (Charging Party here) again petitioned the Board for a rep- resentation election in a unit of at least 180 and perhaps as many as 208 of Respondent's production and maintenance employees UAW intervened In the ensuing election, held on December 12, 1974, again neither union obtained a ma- jority On January 23, 1975, a "run-off" election took place, with only the Charging Party on the ballot, but it still failed to gain a majority, the voting employees prefer- ring "no union " No objections were filed to the conduct of that election We move now to the oral and written utterances of Respondent's supervisory personnel, culled from a sub- stantial mass of communications beamed by both or all sides at the employees, here complained of as comprising unfair labor practices in violation of rights of employees under the Act 2 According to Baughman, when he was again recalled to work around February 1975, he did not elect to return B Alleged Utterances Claimed To Have Been Violative of Section 8(a)(1) 1 Alleged oral threats of plant closing The complaint alleges that, in violation of Section 8(a)(1) of the Act, in mid-October 1974 Respondent's General Foreman Grady Hubbs "threatened its employees that if the Union did come in that the plant would close" and that toward the end of October its Supervisor Kenneth Seagars uttered the same threat a Baughman vs Hubbs Respondent's former machinist apprentice Henry L Baughman, employed by it for about a year and a half until laid off in November 1974 (with an intervening brief layoff earlier in the fall of 1974)2 and an openly ardent plant promoter of the Charging Party Union, was called by General Counsel as a witness Baughman testified that in a slack moment during work around mid-October 1974 he approached General Foreman Grady Hubbs at the latter's desk in an open area on the coil and blower line and, hand- ing him a news clipping about a plant closing elsewhere in the State, invited Hubbs' comments in what Baughman characterizes as "more of a mutual exchange, you might say, back and forth, our own opinions " Thereupon, ac- cording to Baughman, Hubbs opined that that is what would happen if Respondent's plant became unionized Baughman told Hubbs that "I [am] in favor of the Union and didn't care who knew it", Hubbs indicated he was not in favor of the Union Subsequently in his testimony Baughman added that Hubbs also remarked that "If the damn tuggers got in or the Union got in with them, the plant would definitely close " On cross-examination, Baughman conceded that it was he (Baughman) who opened up and provoked the foregoing conversation, which, according to Baughman, was in the context of an amicable exchange of viewpoints at Baughman's seeking and solicitation, and, further, that Hubbs told Baughman, or Baughman understood from what Hubbs told him, that Hubbs was merely voicing his own personal "opinion " Concerning the foregoing, Respondent's Production General Foreman Grady Hubbs, testifying as Re- spondent's witness, swore that when Baughman ap- proached him at his (Hubbs') desk on the occasion in ques- tion and, calling Hubbs by first name, handed him a news clipping "concerning a plant closing due to labor prob- lems," and solicited his opinion, Hubbs remarked only that "it [is] a shame that a company had to close because of a union " Hubbs absolutely denies remarking that the Winnsboro plant would also close if a union came in,3 and 3 Hubbs insisted he was aware at this time that it was unlawful for an employer to threaten plant closure in the event of unionization Early in November 1974 Respondent had issued a carefully detailed 10-page Guidelines for Management Employees during Union Organizing Cam- paign," in which, among other things, it instructed supervisors that You MAY NOT tell employees that the plant will be closed if employees choose either union " (Resp Exh 7 p 9 ) CHRYSLER AIRTEMP SOUTH CAROLINA he further insistently denies that he ever made any state- ment to Baughman about "tuggers" or black persons com- ing in to the plant, such as ascribed to him by Baughman 4 b Baughman vs Seagars Former employee Baughman further testified that dur- ing the last week of October 1974,5 on the factory coil and blower line, with fellow employee MacArthur Camack 6-8 feet away and not known to be within earshot, Baughman was "discussing the Union" with Coil and Blower Line Foreman Kenneth Seagars According to Baughman, he said to Seagars, "I am definitely for the [Sheet Metal Workers] Union and I didn't care who knew it " Seagars said he was definitely against it and would have nothing to do with it or "to say to favor it in any way " Baugh- man later supplemented his testimony by adding that Sea- gars also remarked that if the Union came in the plant would close On cross-examination, Baughman acknowl- edged that his open support for Sheet Metal Workers was well known in the plant and that, indeed, he had made Seagars aware of those sentiments, that he had exchanged views with Seagars on a number of occasions concerning the Union, and that each time it was Baughman who brought the subject up and expressed his views to Seagars, following which Seagars, concededly in a context of exchanging or trad- ing viewpoints, gave Baughman his own personal "opinion " Testifying regarding the foregoing, Respondent's former assembly line foreman, Kenneth Seagars, who because of a production cutback since November 1974 has become a rank-and-file employee, acknowledged that Baughman (who worked on the same assembly line with Seagars) had discussed the subject of union with him many times, with Baughman invariably being the one who brought the sub- ject up Each time Baughman made it plain that he was promoting and would vote for the Union, Seagars made it 4 General Counsel called Tommy R Wilson as a rebuttal witness to con- tradict Hubbs' testimony that Hubbs customarily refers to black persons by their color and does not use or does not recall using the epithet `nigger' But Wilson's testimony that he heard Hubbs use that expression on one occasion-not involving Baughman (who is white)-in the presence of em- ployee Dickey, is not only somewhat wide of the issues presented here, but does not in material aspect overcome Hubbs' testimony that he was unable to recall using that expression Tommy Wilson , a conceded union activist and member of its in-plant organizing committee , testified that he had alert- ed company supervisors that they had better "watch [your] mouth' when talking to him (Wilson) since he could be expected to report and make a statement" regarding it, and that he is certain that Hubbs was "well aware of that" Under the circumstances , Wilson was unable to suggest why, knowing this, Hubbs would make the "niggers statement now ascribed to him by Wilson, a known vociferous union activist Moreover, employee Dickey, in whose presence-according to Wilson-the statement was alleg- edly made by Hubbs, was without explanation nor was he produced by General Counsel to corroborate Wilson or to assist in resolving this periph- eral `issue " Finally, Hubbs, called by Respondent on surrebuttal, flatly contradicted Tommy Wilson Although resolution of this alleged testimo- nial conflict between Wilson and Hubbs is unessential since it iJ ancillary even if Wilson were to be credited-and I am unprepared to do so, under the circumstances shown-it would not affect my determination as to Hubbs' testimony concerning the specific subject matter here in issue, i e, the statements ascribed to Hubbs by Baughman (Were it necessary to re- solve the described conflict between Wilson and Hubbs, upon the record as a whole, including demeanor observations, I would credit Hubbs ) 5 Baughman also testified that-contrary to the complaint allegation- this occurred in November 429 dust as plain that he personally was opposed to the Union These exchanges of views were friendly 6 Seagars flatly de- nies that he ever told Baughman that the plant would close if the Union came in c Discussion and resolution There are thus presented , in this aspect of the case, es- sentially clearcut issues of testimonial credibility between Baughman and Hubbs, as well as between Baughman and Seagars, each to a degree an interested witness No material inconsistency was developed by cross-exam- ination of either Hubbs or Seagars On the other hand, cross-examination of Baughman developed a number of inconsistencies Thus, although Baughman had sworn on cross-examination that his described conversation with Hubbs was in a "normal" tone of voice whereas that with Seagars was "heated," when he was shown his prehearing "Jencks" affidavit, Baughman swore both conversations were "heated" (which I find difficult to believe under the described circumstances), although even in his prehearing affidavit he had referred only to the Hubbs conversation as "rather heated " And, although Baughman swore here (as shown above) that during his described conversation with Seagars, fellow employee MacArthur Camack was not a participant therein, by contrast he had sworn in his pre- hearing affidavit (Resp Exh 3, pp 6-7) that there were two separate conversations with Seagars, in only one of which MacArthur Camack apparently figured, and that in the latter MacArthur Camack was not only there but actu- ally "talking to Seagars " (To be sure, Baughman attempt- ed to resolve this inconsistency by explaining at the hearing that Camack had been talking to Seagars as Baughman approached, this, however, does not eliminate Baughman's inconsistent testimony that Camack was not part of the single conversation he described at the hearing, nor possi- bly even within earshot) It is noted that, without explana- tion, Camack was not produced at the hearing to corrobo- rate Baughman or to assist in resolving any contradiction between the testimony of Seagars and that of Baughman, particularly in regard to the alleged statement-flatly de- nied by Seagars-concerning plant closure Further, al- though in his testimony here Baughman cast the disputed Hubbs statement concerning "niggers" in terms of the Em- ployer closing the plant in case of unionization , in his pre- hearing affidavit the thrust of the disputed statement seems somewhat different "[the] damn niggers will have the plant closed " Without desire to defend an expression of this type, it is nonetheless the fact that-assuming it to have been made-it is consistent with prediction of a strike by employees rather than shutdown by the employer Cf Glazers Wholesale Drug Co, Inc, 209 NLRB 1152 (1975) In the overall posture of the record as a whole, including testimonial demeanor comparisons, I am unable in good conscience to find that the weight of the testimony of Baughman preponderates over that of Hubbs or Seagars, indeed, I find to the contrary, that it does not and that it is 6 While "friendly" statements are not for that reason alone invulnerable to objectionability under the Act, neither does the "friendliness," or for that matter the "unfriendliness," of statements render them objectionable or un- lawful Thus, this factor is not determinative 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outweighed by that of Hubbs and Seagars, whom I ob- served to be impressive witnesses whose testimony deserves credit It is accordingly found that the allegations of paragraph 8(a) of the complaint have not been established by a pre- ponderance of substantial credible evidence 2 Alleged interrogation The complaint further alleges that on December 10, 1974, Respondent's supervisor, Bill Day, interrogated "em- ployees concerning their union activities, sympathies and desires," in violation of Section 8(a)(1) Concerning this, Respondent's metal finisher and spray painter Bruce McDonald testified that on the morning of December 10 while he was at the iesk of Supervisor Day, about 20-40 feet from McDonald's workplace, Day asked him "out of the blue" whether McDonald was going to vote "for the Union" in the upcoming election 7 According to McDonald, he responded that he did not know and that Day was "not supposed to be asking me that " Continuing, McDonald added that shortly thereafter, while he was walking past Day's desk, the latter this time remarked to him, "I thought you weren't going to vote for a Union," and that McDonald thereupon denied he had told Day how he would vote McDonald concedes he was in no way threatened by Day or told how to vote Respondent's paint-line production foreman, Billy J Day, disputes the foregoing episode as narrated by Bruce McDonald Day had been oriented by his superiors as to proper and improper preelection conduct and speech, and had received a copy of Respondent's written "Guidelines" (supra, fn 3) on this subject According to Day's testimony, on the occasion in question employee Edmunds 8 ap- proached him and asked him his opinion regarding a union After Day commented adversely, thereupon Bruce McDonald, who was standing nearby, interjected that Day "could not make a statement to that effect that close to the election " Day expressed disagreement Day flatly denies any other conversation with McDonald concerning a union, including asking him how he was going to vote In this head-on testimonial clash between Bruce Mc- Donald and Billy Day, after closely observing the testimo- nial demeanor of each, I would have no rational basis for preferring that of McDonald over that of Day, on the con- trary, my demeanor comparisons would preponderate in favor of Day General Counsel has accordingly, in the most generous view, failed to sustain the burden of proof and persuasion which is his It is additionally noted that, in the circumstantial con- geries presented, it impresses me as quite unlikely that a supervisor of the observed caliber of Day would engage "out of the blue," as McDonald claims, in pointedly crude interrogation of the nature described by McDonald It is further observed that, within the context of a lengthy and 7 It will be recalled that two unions were competing in the upcoming election 2 days later 8 Since Edmunds did not testify and Bruce McDonald did not dispute this (merely testifying that he could not recall' it) Day s testimony concerning Edmunds is uncontroverted spirited preelection campaign, involving at least 7 supervi- sors and at least 180 and perhaps as many as 208 unit employees, this is the only alleged incident of interroga- tion Under these circumstances, even were McDonald's version of the disputed episode to be credited, in light of the findings herein that no violations were committed, I would regard the incident as de minimis and not such as to justify issuance of a remedial order against an employer not shown to be a recidivist Cf , e g, N L R B v Huntsville Manufacturing Company, 514 F 2d 723 (C A 5, 1975) 3 Alleged creation of impression of surveillance The complaint also alleges that on December 13, 1974, Respondent through Supervisor John Dalzell "created an impression of surveillance of its employees' union activi- ties " Regarding this, Respondent's former material handler and stockchaser David McDonald testified that on the af- ternoon of December 13, 1974-the day after the represen- tation election-while he was on his way to the water foun- tain for a drink he was greeted by Supervisor Dalzell, with whom he is on a first-name-calling basis and with whom he usually chatted several times a day According to McDon- ald, after they exchanged their customary first-name greet- ing, Dalzell made the remark that "I was thinking about putting you on my staff until after the way you voted yes- terday I don't know about you," to which McDon- ald responded, "You don't know how I voted yesterday just because of the buttons I had on " This was the end of the matter and, according to McDonald, these remarks were exchanged in a genial, friendly, and good-natured way on both sides McDonald acknowledges that prior to the election he wore a Sheet Metal Workers button and had campaigned openly for that Union, that it was known throughout the plant-to workers and supervisors alike- that he favored that Union, and that he never disclosed to anybody how he voted in the election Respondent's material control supervisor, John R Dal- zell, who acknowledges being on a friendly first-name basis with David McDonald, denies any exchange of the nature described by the latter Dalzell was aware that McDonald wore a Sheet Metal Workers button Although I was favorably impressed with the testimonial demeanor of both David McDonald and of John Dalzell, I would be unjustified in preferring the testimony of Mc- Donald as preponderating in weight over that of Dalzell Accordingly, General Counsel has failed to sustain his bur- den of proof in this regard "The burden of proof is upon the General Counsel When the Trial Examiner is not persuaded by the testimony of the General Counsel's wit- nesses the General Counsel has failed to meet that burden of proof " Blue Flash Express, Inc, 109 NLRB 591, 592 (1954) See also AAA Lapco, Inc, 197 NLRB 274 (1972), Brotherhood of Painters, Local 76 (Gomez Printing & Decorating Co), 182 NLRB 405 (1970) Even were I to credit the testimony of McDonald and reject Dalzell's denial, however, I would still find and con- clude that the described episode did not constitute unlaw- ful "[creation of] an impression of surveillance" as alleged in the complaint McDonald's espousal of Sheet Metal CHRYSLER AIRTEMP SOUTH CAROLINA 431 Workers, including his wearing of its button, was open, unconcealed, and avowed It was in no way unlawful for his employer to observe this, nor the fact that he voted in the election Nor, in the circumstantial congeries present- ed, would it have constituted unlawful creation of "an im- pression of surveillance" even if Dalzell had made the re- mark attributed to him by McDonald 9 Cf Aztec Chemicals 218 NLRB 116 (1975) It is accordingly found that it has not been established by a preponderance of substantial credible evidence that Respondent "created an impression of surveillance of its employees' union activities" as alleged in the complaint C Writings Claimed To Have Been Violative of Section 8(a)(1) 1 Introduction We move now to various written communications from Respondent to its employees, which are also alleged to have constituted unfair labor practices in violation of Sec- tion 8(a)(1) of the Act Four communications are in- volved-three during the November-December 1974 pre- election campaign, and one in the January 1975 period antedating the "runoff" election These four communica- tions, comprising the basis for the complaint here, have been culled out of a much larger batch of communications in a steady drumfire of electioneering transmissions from all sides in a spirited election campaign 10 2 The complained-of letters a November 25, 1974, letter The complaint alleges that in a November 25, 1974, let- ter to Respondent's employees from Plant Manager Rich- ard L Voorhees Respondent threatened them that "bring- ing a union into our plant at this time could be the straw that broke the camel's back " It is undisputed that the letter in question (G C Exh 2) included the quoted remark as a postscript Respondent correctly points out, however, that the remark was in the context of reminding employees of the unfavorable and declining economic conditions with which it was faced-as described supra and uncontroverted herein-and alerting them to the possibly adverse economic impact upon the Employer of plant unionization, while at the same time stressing that the employees were free to vote as they pleased in the upcoming election t i In the particular con- 9 In the situation presented, the remark attributed to Dalzell would hardly have been other than in the nature of a friendly `josh' between two persons on very friendly terms, after the election outcome, but hardly the "[creation of] an impression of surveillance " 10 It is observed that the Charging Party Union pressed no objections to the conduct of either election, and interposed no objections to the "runoff' election which it lost 11 Respondent had in its earlier letters of November 6 and 13 (as well as November 15 and 19), 1974, used the same expression (i e, "bringing a union in could be the straw that broke the camel's back") within a like context of known economic stnngencies, accompanied by assurances of employees' freedom to vote as they wished (Resp Exhs 6 and 8, G C Exhs 10 and 11) Respondent's carefully drafted unexceptionable `Guidelines to text described, this did not fall within the Act's proscrip- tions Moreover, the letter in question was accompanied by an enclosed "Questions and Answers" pamphlet (G C Exh 2A)-referred to in the letter-which explicitly states that Respondent "would not close its Winnsboro Plant just because a union comes in " b December 6, 1974, letter The complaint calls attention to a further alleged threat in Respondent's December 6, 1974, letter (also from Plant Manager Voorhees) to its employees that "RIGHT NOW YOU have it better than unionized employees represented by Mr Fie 12 or the UAW Why would you want to add straws to the camel's back " It is again undisputed by Respondent that the quoted words are excerpted from its letter of December 6, 1974, in which, among other things, Respondent pointed out or confirmed that in view of continuing economic stringencies it was constrained to announce a temporary shutdown from December 13, 1974, to January 5, 1975 However, in addition to the context already provided, supra, in connec- tion with its November 25 letter, including the camel's back allusion, Respondent explains that its December 6 letter was specifically in response to a campaign handbill by the Union to the employees on the previous day, De- cember 5, dealing with the possibility of a plant closing in the event of unionization, which informed the employees that "There has been no official word from the Company that this will happen" and that it was "only rumor, not fact, and should be ignored," and which-in contradistinc- tion to the Employer's camel's back allusion, adopting a different zoological or barnyard allegory-stated that "This would be killing the goose that lays the golden eggs" The Union's December 5 handbill also calls attention to claimed better economic conditions for employees at some unionized plants Respondent's December 6 letter takes is- sue with those claims 13 On December 6, the Union issued a further communique, captioned S-T-R I K-E,' which con- cluded with "We are not concerned about camels, straws nor saleries [sic] of Chrysler Airtemp Officials We are con- cerned with getting the employees upward wage adjust- ments, better working conditions and fringe benefits so there will be no need for a strike' ' i" On the same date (December 6) Respondent issued a letter to its employees calling their attention to the fact that 2 weeks prior to then, in the Company's "Questions and Answers" pamphlet (su- pra), the Company had explicitly pointed out that "Air- temp would not close its Winnsboro Plant just because a union comes in " its supervisors for their proper campaign conduct present a similar ap- proach, stressing the Company's economic blight while emphasizing its ac knowledgment of its employees' freedom to vote as they wished in the elec- tion and its determination that "AIRTEMP and its supervisors and foremen will respect those rights (Resp Exh 7, p 10) 12 Fie is an International organizer of Sheet Metal Workers Local 399, Charging Party herein, and was apparently in charge of its organizational campaign 13 While an enclosure to Respondent's December 6, 1974, letter contains the concluding heavy black-lettered caution to employees to "BE SURE AND VOTE AS IF YOUR JOB DEPENDED UPON IT ," it is not here alleged that this violated the Act 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c December 9, 1974, letter Another excerpt to which General Counsel takes excep- tion, from the voluminous campaign literature issued by the parties here, is the statement in the December 9, 1974, letter of Respondent's Personnel Manager Joe Vella that "There can be no doubt that the key problem[s] facing the plant right now is SURVIVAL The chief worry facing you and me is fob security Be sure to vote and vote as if your job depended on it " The foregoing letter also stressed that while Respondent hoped the employees would vote for no union, nevertheless "YOU ARE FREE TO VOTE AS YOU PLEASE " It also indicated, in connection with the quoted complained-about statement concerning plant survival, that Respondent had been at- tempting to apprise the employees about the existing factu- al situation in which the plant found itself economically 14 Vella's testimony indicates that his letter in question, dated December 9, was distributed more or less in the crossfire of various items of union (i e, Sheet Metal Workers) as well as company campaign literature Indeed, Vella's December 9 letter was, as usual, speedily followed by a counterpropa- ganda thrust from the Union d January 2, 1975, letter Finally, the following sentence from Respondent's Janu- ary 2, 1975, letter (from Plant Manager Voorhees) is said to have constituted a threat comprising an unfair labor prac- tice in violation of the Act, "Hopefully the run-off election will end this union matter once and for all and permit the Company to get on to the work of keeping our plant alive and protecting the jobs of all of us " The letter containing the foregoing excerpt was distribut- ed by Respondent to its employees after the Sheet Metal Workers and the UAW had lost the most recent general election (1974) and while awaiting the "runoff" election of January 23, 1975 It also points out that union objections to the conduct of the December 12, 1974, election had been withdrawn, and that the Board would soon be scheduling a "runoff" election By its further communications of Janu- ary 7 and 21, 1975, not here complained of, Respondent alerted its employees to the date (January 23) of the runoff election and urged them to vote against the Union, in the first of these again reiterating its "straw that broke the camel's back" allusion 3 Discussion and resolution Employers, as well as unions and individual employees and others, may, of course, communicate their views and opinions to employees concerning unions in general and in particular, their predictions as to consequences of union- ization or nonunionization, and also their recommenda- tions as to how employees should vote in a representation election The right to such expression is guaranteed by the first amendment of the Constitution and reiterated in Sec- tion 8(c) of the Act A proviso to Section 8 (c) states what 14 Orally as well as in writing None of Respondents oral talks to its employees is here complained about in any way has many times been emphasized decisionally, i e, that such expression is protected so long as it "contains no threat of reprisal or force or promise of benefit " Prediction by an employer of possible adverse consequences of union- ization when pyramided on demonstrated existing business stnngencies, through reasonably foreseeable piling on of added cost factors, is not equivalent to a threat to close down operations in the event of unionization-particularly where, as here, the employer takes pains in writing to as- sure his employees explicitly that the plant will not be shut down dust because of unionization, coupled with strong as- surances that employees are free to vote as they please Based upon a demonstrated, and here unquestioned, pic- ture of very substantial business decline in a bleak econom- ic climate unrelieved by visible prospect of betterment, Re- spondent Employer sought orally as well as in writing to delineate and communicate this picture to its employees, in candor pointing out to them that, while they remained free to vote as they pleased, if it were faced with added costs such as the Union had indicated in the event of unioniza- tion, it might well be pushed to the wall by any such "straw [breaking] the camel's back " In view of Respondent's demonstrated, unquestioned substantial economic strin- gencies, this was in the ball park or spectrum of reasonable prediction To the extent that Respondent's carefully draft- ed "Guidelines" to its supervisors is any indication of its viewpoint and announced practices to be followed by its supervisors concerning the matters here involved, it beto- kens a purpose to adhere strictly to legal requirements un- der the Act 1s In the final analysis, the situation here presented adds up to a spirited election campaign, where blow is traded for blow, but with none clearly "below the belt" or the voters through threat (or promise or blandishment) euchered or beguiled out of their ability to make that free, fair, reason- ably informed, commonsense (as distinguished from theo- retically perfect) secret ballot choice contemplated by the Act 15 A statement such as that in Respondent Personnel Manager Vella s December 9 1974, letter to `vote as if your job depended on it" could arguably be considered to be a threat that employees would lose theirjobs- sooner or later-in the event a union were to be voted in However, the statement is equally susceptible to the interpretation that it does not threat- en a loss of jobs as the consequence of unionization as such, but rather that if unionization resulted in added economic requirements which the employ- er was unable to bear, such as to force him to the point where he would have to limit or abandon his business operations as unprofitable, this in turn could affect or even eliminate some or all employees jobs Under the partic- ular economic circumstances demonstrated and uncontested here, I perceive nothing unlawful in an employer's explicating such business factors to his employees-much as the Union does in its own direction-provided he does it fairly and, as here, explicitly disavows any intention to close his plant in the event and because of unionization, and also emphasizes his employees right to vote for union representation if they so desire Cf Gaedke Cutlery Manufacturing Co, 220 NLRB 1042 (1975) Furthermore, in the total frame of reference here presented, considering the massive volume of campaign literature targeted at employees by both sides-and considering the Union s opportunities, which it indeed utilized as shown to correct and counter any feared misapprehensions by employees-it would not seem that this particu- lar remark should be singled out for formal condemnation Close analysis of the Union's own preelection propaganda could form the basis for compara- ble faulting Recognition of the practical realities of a bygone election situa Lion militate against post facto ruminations over culled-out and warmed-over campaign phrases at the instance of the loser who did not even file objec- tions to the conduct of the election CHRYSLER AIRTEMP SOUTH CAROLINA 433 Accordingly, upon the foregoing findings and the entire record, I state the following CONCLUSIONS OF LAW 1 Jurisdiction is properly asserted in this proceeding 2 Under all of the circumstances presented and found, it has not been established by a fair preponderance of the substantial credible evidence that Respondent has engaged in unfair labor practices in violation of the Act, as alleged in the complaint 16 16 In view of this disposition of the case, it is unnecessary to resolve the affirmative defense asserted in Respondent 's answer, that Respondent was inadequately apprised of charges and improperly deprived of opportunity to clear itself at any investigative stage of this proceeding , as contemplated and required by the Act and the Board's Rules and Regulations , and procedures and in contravention of due process requirement That defense is according Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, there is hereby issued the follow- ing recommended ORDER 17 It is hereby ordered that the complaint herein, dated April 9, 1975, be, and the same hereby is, in all respects dismissed ly dismissed as moot, and Respondent's motion renewed on brief to dismiss the complaint upon those and related grounds, including General Counsel s alleged sua sponte issuance of a complaint unrelated to any charge filed which he did not decline to prosecute, is likewise dismissed as moot 17 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 which follows herein shall, as provid- ed in Sec 102 48 of those 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