Coach and Equipment Sales Corp.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coach and Equipment Sales Corp. and United Broth- erhood of Carpenters & Joiners of America, AFL- CIO. Cases 3-CA-6397 and 3-RC-6502 February 25, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On July 28, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, General Counsel and the Union filed exceptions, and the General Counsel also filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The record establishes and the Administrative Law Judge found that the Union began its organizational campaign among Respondent's employees in late 1975 and on November 21, 1975, filed a petition for a representation election. Prior to the election, in the latter part of November and early December, Richard Hallister, an employee, had several conversations with Norman Koek, his foreman. During the course of these conversations, Kock made it clear that, if the Union won, the shop would close or move away and that they would both be out of jobs. Koek told Hallister that he had been advised of the Company's position by management at a meeting. Substantiating this, Koek testified that, at a meeting of supervisors in December, former Plant Manager Hall told the foremen that the plant would shut down if the Union won the election. Koek's conversations with Hallister occurred at a time when rumors of a shutdown were rife throughout the plant. At the end of December, Respondent mailed a letter to all its employees informing them that unionization does not automatically mean higher wages and better benefits. The letter stated that "[u]nder the law, an employer is not required even to continue in effect its existing benefits if the union wins. Bargaining starts from scratch." I 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 Later, at a series of four meetings held on January 7, 1976, 2 days before the election, Respondent's executive vice president, Richard Kreutziger, in- formed the employees that Respondent would start from scratch as to benefits and wages if the Union came in. Kreutziger used hand gestures to demon- strate that in bargaining he would start at the minimum wage level and might go up various levels but would not go higher than the present rates. The Union lost the election by a vote of 69 to 46. The Administrative Law Judge concluded that Koek's remarks to Hallister were not coercive within the meaning of Section 8(a)(1) of the Act because they were isolated statements made during the course of private conversations between friends. We cannot agree with the Administrative Law Judge's conclu- sion. The Board has in the past noted that statements spoken as a friend which convey a threat of severe consequences are violative of Section 8(a)(1), adopt- ing the reasoning that the impact of such statements, coming from a "friend" who is part of management, is probably greater in view of the authenticity and credibility of the source.2 Similarly, the Board does not lightly regard serious threats, even those made to just one employee, as isolated. Rather, the Board, relying on past experi- ence, presumes that such threats are the subject of discussion and repetition among the electorate.3 Based on the foregoing considerations, we find that Foreman Koek's statements to employee Hallister concerning the prospect of a shutdown if the Union came in, communicated as they were on as many as six separate occasions, and coming as they did at a time when rumors concerning shutdown were wide- spread, violated Section 8(a)(1) of the Act. The Administrative Law Judge also found that Vice President Kreutziger's statements that Respondent would bargain from scratch as to wages and benefits were nonthreatening and privileged under Section 8(c) and were therefore not violative of Section 8(a)(1) of the Act. We disagree with this conclusion. "Bargaining from scratch" is a dangerous phrase which carries within it the seed of a threat that the employer will become punitively intransigent in the event the union wins the election. The Board has held that such "hard bargaining" statements may or may not be coercive, depending on the context in which they are uttered.4 Thus, where a bargaining-from- scratch statement can reasonably be read in context as a threat by the employer either to unilaterally NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Wichita Eagle & Beacon Publishing Co., Inc, 199 NLRB 360,370 (1972) 3 General Stencils, Inc., 195 NLRB 1109 (1972), Standard Knitting Mills, Inc, 172 NLRB 1122 (1968). 4 Wagner Industrial Products Company, Inc, 170 NLRB 1413 (1968). 228 NLRB No. 51 COACH AND EQUIPMENT SALES CORP. 441 discontinue existing benefits prior to negotiations, or to adopt a regressive bargaining posture designed to force a reduction of existing benefits for the purpose of penalizing the employees for choosing collective representation, the Board will find a violation.5 Where, on the other hand, the clearly articulated thrust of the bargaining-from-scratch statement is that the mere designation of a union will not automatically secure increases in wages and benefits, and that all such items are subject to bargaining, no violation will be founds A close question sometimes exists whether bargaining-from-scratch statements constitute a threat of economic reprisal or instead constitute an attempt to portray the possible pitfalls for employees of the collective-bargaining process. The presence of contemporaneous threats or unfair labor practices is often a critical factor in determining whether there is a threatening color to the employer's remarks.? In the instant case, Vice President Kreutziger stated to the employees at a series of meetings that, if the Union came in, wages would start from scratch and that there would be no benefits, as they too would start from scratch.8 This statement was accompanied by the assertion, made by hand gestures, that he would start bargaining at the minimum wage level, that he might go up from that (clearly indicating his intent to bargain to a lesser level) but that he would not in any event go above what the employees were presently earning. Taken together, these statements do not simply confine themselves to the legitimate message that collective bargaining is potentially hazardous for employees and that as a result of such negotiations employees might possibly wind up with less benefits after unionization than before. Rather, these statements can only be taken as meaning that Respondent intended to adopt a bargaining stance designed to insure that collective bargaining could not result in any increases in benefits for the employees and would probably result in decreased benefits-in short, that unionization, if it had any effect at all, would, because of Respondent's intransi- gence, result in worse benefits, not better. According- ly, we deem Kreutziger's remarks to be a threat in violation of Section 8(a)(1) of the Act. We find an additional violation of Section 8(a)(1) of the Act predicated on the conversation between 5 See Saunders Leasing System, Inc., 204 NLRB 448 (1973); Textron, Inc. (Talon Division), 199 NLRB 131 (1972). s Computer Peripherals, Inc, 215 NLRB 293 (1974); Host International, Inc., 195 NLRB (1972); TRW, Inc., 173 NLRB 1425 ( 1968); and Wagner Industrial Products Company, supra r See Host International, Inc., supra. s This account of the facts is taken from Kreutziger's own testimony. The Administrative Law Judge failed to pass on this conversation and instead focused on an earlier discussion between Malloy and several night shift employees which Webster testified to overhearing. The Administrative Law Judge found that, in the circumstances, there was nothing coercive in Malloy's remarks during this incident. Foreman Malloy and Webster 1 week before the election. Webster, who was found to be a candid and credible witness by the Administrative Law Judge, testified that during this conversation Malloy repeat- edly remarked on the Company's "legal right" to lower wages to the minimum if the Union came in.9 In our view, Malloy's comments to Webster about the Company's supposed "right" to cut wages constitute a blatant threat of economic reprisal which requires remedying.10 On the basis of the foregoing, we find that Respon- dent's conduct substantially interfered with the election of January 9, 1976, and that the election should be set aside and a second election conducted. Remedy Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, Respondent will be ordered to cease and desist therefrom and to take appropriate affirmative action. The election conducted on January 9,1976, in Case 3-RC-6502 will be set aside and that case will be remanded to the Regional Director for Region 3 for the purpose of conducting a second election at such time as he deems the circumstances permit the free choice of a bargaining representative. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including janitors employed at the Employer's prem- ises at Brown Street Extension, Penn Yan, New York, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. By threatening its employees with plant shut- down and with loss of benefits in the event they gave assistance or support to the Union, Respondent has interfered with, restrained, and coerced its employees 10 Our dissenting colleague maintains that there is no basis for resolving the conflict in testimony between Malloy and Webster In so doing, however, he fails to note that the Administrative Law Judge found Webster generally a credible witness and, in fact , specifically credited Webster over Malloy with respect to other conflicts in their testimony. Our colleague also fails to consider that the statements attributed to Malloy by Webster concerning the economic loss to employees if they selected the Union are entirely consistent with the Company's overall antiumon campaign, a campaign marked by repeated threats of loss of benefits and other economic reprisal if employees selected the Union. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. By the above-mentioned conduct, Respondent has interfered with the results of the January 9, 1976, election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Coach and Equipment Sales Corp., Penn Yan, New York, its officers, agents, successors, and assigns, shaU: 1. Cease and desist from: (a) Threatening its employees with plant shutdown and loss of benefits for engaging in union activity or giving assistance or support to the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Post at its Penn Yan, New York, place of business copies of the attached notice marked "Ap- pendix." 11 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held on January 9, 1976, in Case 3-RC-6502 be, and it hereby is, set aside and that case is hereby remanded to the Regional Director for Region 3 for the purpose of scheduling and conducting a second election at such time as he deems the circumstances permit a free choice on the issue of representation. [Direction of Second Election and Excelsior foot- note omitted from publication.] " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " MEMBER WALTHER, dissenting in part: Unlike my colleagues, I would not find that Foreman Larry Malloy's purported statements to employee Francis Webster I week before the election violated Section 8(a)(1) of the Act. Webster testified that approximately 1 week before the election he overheard Malloy tell another employ- ee that if the Union were voted in the Company had the right to lower employees' wages to the minimum. Webster admitted that this isolated remark was the only part of the conversation he overheard. Webster testified that later in the evening he spoke with Malloy personally and Malloy again claimed that the Company had the legal right to lower wages to the minimum if the Union were elected. Malloy, for his part, recalled having conversations of the above nature with Webster and with a group of employees. Malloy placed both conversations on the date that the employees received the letter from the Company informing them, among other things, that "bargaining starts from scratch." Malloy testified that on this date he informed a group of employees, and later Webster, that the Company could start bargaining from the minimum wage up. Malloy denied telling anyone that the Company had the legal right to lower wages to the minimum. The Administrative Law Judge concluded that the thrust of the allegation of the complaint concerned the earlier conversation overheard by Webster and not the later conversation between Malloy and Webster. (In this, he was undoubtedly influenced by the fact that counsel for the General Counsel, in her opening statement, based the 8(a)(1) allegation on the earlier conversation.) The Administrative Law Judge found that it would be inappropriate to base an 8(a)(1) violation on the single remark overheard by Webster-a remark extracted out of context from a much longer conversation. He accordingly dismissed the allegation of the complaint regarding Malloy's statements. The Administrative Law Judge did not decide whether Malloy's later conversation with Webster violated Section 8(a)(1) of the Act, nor did he resolve the credibility conflict between Malloy and Webster over the contents of this later conversation (although as to at least one disputed issue-whether the Company's letter was a subject of the evening conversation-the Administrative Law Judge im- pliedly credited Malloy.) Counsel for the General Counsel concedes in her brief that her opening statement may have misled the Administrative Law Judge into thinking that the focus of the 8(a)(1) allegation involving Malloy concerned the earlier conversation rather than the later one. She nevertheless now asks, and my col- COACH AND EQUIPMENT SALES CORP. 443 leagues accede to her request, that the Board find that the later conversation between Malloy and Webster violated the Act. In finding the violation, my col- leagues choose to credit Webster instead of Malloy. I am of the view that the Board does not have before it an adequate basis for resolving the credibili- ty conflict between Webster and Malloy. Although the Administrative Law Judge credited Webster in another context elsewhere in the opinion, he implied- ly credited Malloy as to at least one aspect of the conversation in question. There are no internal inconsistencies in either person's testimony, nor is there anything which would tend to render one person's testimony more probable than the other's. I would accordingly let the matter stand where it stood previously and would affirm the Administrative Law Judge's dismissal of this section of the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with plant shutdown or economic loss for engaging in union activity or giving assistance or support to the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. COACH AND EQUIPMENT CORP. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This consoli- dated proceeding was heard on April 29, 1976, in Penn Yan, New York. Upon a charge filed and served January 14, 1976, the Regional Director for Region 3 issued the complaint in this proceeding on February 24, 1976, alleging that Coach and Equipment Sales Corporation, herein called Respondent or Employer, violated Section 8(a)(1) of the Act in several respects. Pursuant to a Stipulation for Certification Upon Consent Election executed in the representation case by Respondent and United Brother- hood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, approved by the Regional Director on December 10, 1975, an election was conducted among certain of Respondent's employees on January 9, 1976. The tally disclosed that of 116 valid votes counted 46 were cast for the Petitioner, 69 were cast against it, and 1 vote was challenged. On January 14, 1976, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director found that conduct alleged by the Petitioner in its Objection 3 raised issues identical with the unfair labor practices found and alleged in the complaint, and, in addition, his investigation of the objections dis- closed other conduct not specifically alleged in the objections but also found to be identical with issues alleged as unfair labor practices in the complaint. Accordingly, the Acting Regional Director issued an order dated March 1, 1976, directing the hearing on these objections to be consolidated for hearing with the complaint. Respondent filed an answer denying the commission of unfair labor practices. Issues Whether Respondent by its agents threatened employees with loss of economic benefits should the Union be successful at the election. Whether Respondent by its agents threatened employees with layoff and shutdown of the plant in the event the Union wins the election. On the entire record in this case, and from my observa- tion of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent, a New York corporation, maintains its principal office, place of business, and plant at Penn Yan, New York, where it is engaged in the manufacture, sales, and distribution of buses and related products. During the past year Respondent, in the conduct of its business, purchased goods and materials valued in excess of $50,000, of which goods and material valued in excess of $50,000 were transported to said plant directly from States of the United States other than the State of New York; and, during the same time, Respondent manufactured, sold, and distributed products valued in excess of $50,000 of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Late in 1975 the Union began an organizational cam- paign among Respondent's employees and on November 21 filed a petition for a representation election. Thereafter Respondent and the Union conducted campaigns in the 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of which both distributed literature . On January 7, 1976, 2 days prior to the election, Respondent held four meetings of employees on its premises which were ad- dressed by Executive Vice President Richard Kreutziger. Certain remarks of Kreutziger , as well as two other incidents which occurred earlier in the campaign, form the basis for the allegations of unfair labor practices and objections to conduct affecting the results of the election. B. The Alleged Threats of Layoff and Plant Shutdown Peter DeBolt, an employee who attended one of the meetings on January 7 at 2 :30 p.m., testified that during this meeting Kreutziger stated that if the Union came in there was a possibility of a plant shutdown or layoff. He further stated that Kreutziger was a little bit angry at that point with the employees at the meeting although DeBolt did not know why. Kreutziger, in his testimony, denied ever threatening that the plant would be closed should the Union win the election. No other employee testified that Kreutziger made such a threat during the course of his discussions with employees on January 7, including the two employee witnesses who attended the same meeting as DeBolt. In the circumstances, as this testimony of DeBolt is thus uncorroborated, and Kreutziger testified credibly in this respect, I shall dismiss the allegation of the complaint that Kreutziger threatened the employees on January 7 with a plant shutdown in the event the Union won the election. Richard Hallister, an employee, testified that in the latter part of November and early December 1975 he had several conversations with Norman Koek, his foreman. It appears that Hallister and Koek are friends who have known each other for several years and as a result engaged in discus- sions concerning the Union and thc prospects of the campaign, their talks being initiated by either one at any given time . Hallister testified that during the course of these conversations Koek made it clear that if the Union won the shop would close or move away and that they would both be out of a job. Hallister said that Koek also indicated that he was advised of this by management in meetings. According to the testimony of both Hallister and Koek as well as other witnesses, it is clear that rumors of the plant shutting down or moving were rife throughout the plant, not only during this period of time but both before and after the advent of the Union and continued through the date of hearing. In this connection Richard Kreutziger testified that during the latter part of 1975 the Respondent had indeed been engaged in negotiations with Wayne Corporation concerning the possible sale of the plant to that company . In addition Koek, who incidentally is no longer employed by Respondent, stated that at a meeting of supervisors in December, the then plant manager , Hall, had told the foremen that the plant would shut down if the Union won the election . Hall left the Employer prior to the election and there is no evidence or indication, other than Koek's conversation with Hallister, that his remarks, if made, were communicated to any other employees . There is no real conflict between Hallister and Koek with respect to the conversations about plant closure or removal. I fmd the remarks made by Koek on this subject, occurring in private conversations with his friend, Hallister, while they were each assessing their own future job prospects to be uncoercive and not violative of the Act. In this connection, I also note that the conversations occurred more than a month prior to the election; that no other employees were involved in the discussions, nor are there any allegations that Koek's sentiments in these matters were communicat- ed towards other employees; that Hallister was only I of more than 100 employees who voted in the election; and that standing alone they do not constitute interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. I fmd, therefore, that the comments of Koek were isolated statements made to a friend and, absent evidence linking them to a proscribed course of conduct, do not constitute a violation of Section 8(axl) of the Act.' C. The Alleged Threats of Loss of Economic Benefits The complaint alleges that on or about December 29, 1975, Larry Malloy, a foreman, threatened an employee with loss of economic benefits. Francis Webster testified that about a week before the election he was working in the paint booth on the night shift and , as the door was ajar, he heard Malloy tell another employee, Dan Morris, that if the Union were voted in the Company had the right to lower the wages of the people to the minimum . Webster stated that he did not overhear the entire conversation between Malloy and Morris, which took a period of time, and that there were at least two other employees involved in that conversation. This one remark was the only thing that Webster overheard. Malloy recalled having a conversation of this nature with Morris and other employees and believes that it was the date on which employees had received a letter from Respondent which informed the employees, generally, that an employer is not required even to continue its existing benefits if the Union wins and that bargaining starts from scratch . Malloy stated that he was asked a question by another employee, Barkley, whether the Employer could start bargaining from scratch . Malloy said he told Barkley and the group of employees, including Morris, that the Employer could start bargaining at the minimum wage. Later in the evening Webster himself spoke to Malloy concerning this conversation, telling him that the letter was a threat to employees . In his testimony Webster also conceded that he had since found out that the Employer had the right to lower people's wages to the minimum in some circumstances. In any case , the thrust of the allegation of the complaint is with respect to the one sentence Webster claims that he overheard . Neither Morris, Barkley, nor any of the employees involved in that conversation with Malloy appeared or testified at the hearing. However, even if we were to assume that Malloy stated just what Webster claimed to have heard, that the employees' wages would be cut to the minimum, a violation of the Act could not be based on this single remark extracted from a much longer conversation. As the Board I N L R B V. Acker Industries Inc, 460 F.2d 649 (C.A. 10, 1972). COACH AND EQUIPMENT SALES CORP. 445 has said, "Statements may or may not be coercive, depending on the context in which they are uttered." 2 Thus Webster's testimony is not sufficient to posit a violation of the Act. Malloy, the only other witness as to this matter, testified without contradiction that the remark heard by Webster was made in a context of explaining the "Bargain- ing from Scratch" letter. In such circumstances, Malloy's statement was privileged under Section 8(c) of the Act .3 Accordingly, I shall dismiss the allegation of the complaint as to the threat by Malloy. Although the complaint also alleges that early in Decem- ber 1975 Foreman Norman Koek threatened employees with loss of economic benefits, no evidence was submitted by General Counsel in support of this allegation. However, on cross-examination Hallister stated that he spoke to Koek at times about benefits and the latter told him that "if a union got in, it wouldn't be any better." I fmd, as I did in connection with the alleged threat of plant shutdown, that this was another expression of opinion by Koek during a noncoercive conversation with a friend. Accordingly, I shall dismiss that portion of paragraph 6(a) of the complaint relating to any conduct on the part of Koek. There remains the allegation of the complaint to the effect that Vice President Richard Kreutziger on January 7 during meetings with employees on company premises threatened them with loss of economic benefits if the Union won the election. It will be recalled that at the end of December Respondent mailed a letter to all employees entitled "Bargaining From Scratch." In the letter Respon- dent informed the employees that under the law it "was not required even to continue in effect its existing benefits if the Union wins" and that "bargaining starts from scratch." Respondent further stated that if the Union wanted something like checkoff of dues they might have to exchange benefits in order to obtain that. It further advised the employees that wages and conditions would depend on what the employee was willing to give and that "it will not agree, merely because there is a union to raise our costs out of line with our competition." On January 7, 2 days before the election Respondent held a series of four meetings with groups of employees at the plant, all of which were addressed by Richard Kreutziger. There is agreement on the part of all witnesses that during the course of these meetings he made a comparison of Respondent's wages and benefits with those of a local employer, Penn Yan Boat Company, where the employees were represented by a labor union. Five employees, three of whom attended the meeting at 2:30 p.m., testified in varying ways as to what he said in connection with the subject of bargaining from scratch. Employee DeBolt stated that Kreutziger said that their wages would drop to zero level. DeBolt added that in response to a question by another employee he said that what he meant by zero level was minimum wage with no benefits. Norman West, another employee who attended the same meeting, stated that Kreutziger said they would start from scratch on their benefits and wages. In response to a question from another employee as to whether they were going to start from nothing, he replied they were going to start from the minimum wage and work from there. The third employee at the 2:30 p.m. meeting, Steven Bixler, said that Kreutziger told them that if they went with the Union they would go back to the minimum wage. Bixler also stated that there were no questions from employees at the meeting. All three of the employees said that they did not recall any further details of the meeting. Francis Webster attended the 4 p.m. meeting and according to him Kreutziger made the comparison with Penn Yan Boat Company and also said that he was a hard bargainer who would start from scratch. Richard Kreutziger testified, in agreement with the employees, that he discussed the merits of joining a union and made a comparison of Respondent's benefits with those of the boat company where the employees were represented by a union. He affirmed he told the employees that if the Union came in wages would start from scratch, and there would be no benefits as they too would start from scratch. Finally, several of the employees testified that in the course of these meetings Kreutziger used his hands to demonstrate the levels of bargaining. Their descriptions of his gestures and his explanation of them varied. For example, DeBolt said that he held one hand over his head to indicate the point of their present benefits and then another hand below his chest to show that their wages would go down to zero level. Foreman Malloy, who testified on behalf of Respondent, stated that the high hand held by Kreutziger indicated the Union's demands and the low hand indicated the minimum wage and Kreutziger stated he would never go above what the Union was demanding. The more likely version of the meaning of his gestures was described by employee Webster, whom I credit, as his testimony was quite candid on this and other matters. Webster stated that Kreutziger had placed one hand on the desk indicating the bottom or minimum wage level, and his other hand at about his chest which indicated the current wages and benefits and then went on to raise the lower hand indicating that he might go up various levels but that he would not go higher than his upper hand which showed the present rates. I do not credit DeBolt's account of the 2:30 p.m. meeting which alleges that Kreutziger merely stated that the wages of the employees would go to zero in the event the Union won. I note that I also did not credit him as to the alleged threat by Kreutziger to shut down the plant since no other employee so testified. On the other hand, I credit the version of employee Norman West who stated that Kreut- ziger said at the meeting that Respondent would start from scratch as to benefits and wages. This is consistent with the account given by Kreutziger himself who testified that he was following the theme set forth in the letter sent to employees concerning the subject of bargaining from scratch. The Board has held that statements such as bargaining from scratch or starting at the minimum may or may not be coercive depending upon the context in which they are uttered.4 However, even in a case involving contemporane- ous unfair labor practices, statements such as all benefits would be negotiable under a union, and benefits presently 2 Wagner Industrial Products Company, Inc, 170 NLRB 1413 (1968). 4 Wagner Industrial Products Company, Inc, supra. 3 StumpfMotor Company, Inc., 208 NLRB 431(1974) 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enjoyed could be lost as result of negotiations , were found by the Board to be nonthreatening and privileged under Section 8(c).5 In a case involving objections to conduct affecting an election, the Board found not to be objection- able a leaflet stating that in the area of wages , hours, and working conditions, bargaining starts from scratch. Fur- ther, in the same case, during a speech by the plant manager, the employees were told that he was going to start bargaining from scratch and if the union wanted things such as checkoff they might have to exchange that for some benefit they then had. The Board found these remarks to contain no express or implied threat that the employer would unilaterally take away benefits and require the union to negotiate to get them back , especially in the absence of other threatening remarks.6 In the instant case, I have found that Respondent, in its letter and during the course of the four speeches on January 7, had reiterated it would start bargaining from scratch and, in addition, Kreutziger said he would bargain from the minimum wage . I find that these remarks , made in the absence of any contemporaneous unfair labor practices or background of conduct that would tend to lend a threatening coloration to them, fall within the free speech privilege of Section 8(c) and therefore did not violate Section 8(a)(1) of the Act or otherwise interfere with the conduct of the election.7 S StumpfMotor Company, supra CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. THE OBJECTIONS IN CASE 3-RC-6502 Objections 1, 2, 4, and 5 had heretofore been withdrawn by the Petitioner. Objection 3 related to the meetings held by the Employer at which Kreutziger spoke to the employ- ees concerning their wages and benefits. The Regional Director had further found that during the course of his investigation the unfair labor practices alleged in the complaint herein occurred during the critical period and, accordingly, such conduct was additionally alleged to have interfered with the election and consolidated for hearing herein. As I have found all of said conduct and allegations not to be violative of Section 8(a)(1), nor has there been any interference with the election by such conduct , I recom- mend that Objection 3, as well as the objections relating to the additional conduct coextensive with the alleged unfair labor practices, be overruled. [Recommended Order for dismissal omitted from publi- cation.] 6 Computer Peripherals, Inc, 215 NLRB 293 (1974) 7 Campbell Soup Company, 225 NLRB 222 (1976).