Ethyl Corp.

ETHYL CORPORATION Ethyl Corporation and United Rubber, Cork, Linole- um and Plastic Workers of America, AFL-CIO- CLC. Case 26-CA-5959 August 16, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On September 24, 1976, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respon- dent filed cross-exceptions and a supporting brief and a brief in answer to the General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(l) of the Act by soliciting employee grievances and by interrogating certain employees about their union sympathies and desires. However, he further con- cluded, inter alia, that Respondent did not violate Section 8(a)(I) when Division President Ray Wilkins indicated during Respondent's preelection campaign that there was a possibility of a layoff if the employees selected the Charging Party as their bargaining representative. The Administrative Law Judge also concluded that the layoff that, in fact, did occur later did not violate Section 8(a)(3). We disagree with these conclusions, as well as several additional findings of the Administrative Law Judge as specified below. Background Two of Respondent's plants are involved in the instant case: (I) the 50-employee Tiptonville, Ten- nessee, plant that the Charging Party was attempting to organize, and (2) the already unionized 2,000- employee Baton Rouge, Louisiana, plant. The Tiptonville plant produces only polyvinyl chloride compounds (PVC), while Baton Rouge manufactures other compounds. Although the Baton Rouge plant I As noted, it would take 60 to 90 days for the line to become operational. 2 The Baton Rouge line was operational at that time. :' As there was no immediate need for additional production, the Baton Rouge startup necessitated the Tiptonville layoff 231 NLRB No. 40 also has the capability to produce PVC, it was not producing the compound when the union campaign took place at Tiptonville. During the organizational campaign at Tiptonville, Respondent sent its repre- sentatives to Tiptonville to convince the employees that they did not need a union. 8(a)(1) Threat and 8(a)(3) Layoff During the course of the organizing campaign at Tiptonville, Respondent's representatives spoke to groups of Tiptonville employees between Monday, October 13, and Wednesday, October 15, 1975. At these sessions, Wilkins, the president of the division, repeatedly stated that, if the Tiptonville plant went union, Respondent would reopen the PVC produc- tion line at Baton Rouge to avoid being placed in a position where a strike at Tiptonville could cost it all of its PVC production. Despite the objections of employees that they did not want or plan to strike, Wilkins maintained that the mere presence of a union at the plant provided a sufficient justification for preparing for a strike at sometime in the future. Wilkins specifically stated that he had no intention of punishing the employees if they selected a union, but that if employees selected the Charging Party it would be necessary to start up the Baton Rouge line because it would take between 60 and 90 days to activate the PVC line at the latter plant. He indicated that he hoped sales would also justify opening the Baton Rouge line at that time, but he was not optimistic and, if Respondent could not use such a level of production, production would be cut at Tiptonville. The comments by Wilkins are the basis for the 8(a)(l) allegation. Upon leaving Tiptonville, but before the election, Wilkins realized that the employees would in all probability select the Charging Party, so, in late October 1975, he ordered Baton Rouge to start up the PVC line at that time.' In early November 1975, the Union won the election, 42 to 6. On January 12, 1976,2 Respondent laid off the nine least senior production employees at Tiptonville by changing from a 7-day-a-week, 24-hour-a-day operation (with one guaranteed shift of overtime each week for one of the shifts) to a 5-day-a-week, 24-hour-a-day operation. 3 The layoff, which gave rise to the 8(a)(3) allegation, lasted until April 1976, when sales required that Tiptonville resume production at full capacity and the laid-off employees were offered reemployment.4 In dismissing the 8(a)(3) allegation, the Adminis- trative Law Judge attempted to apply the criteria 4 It should be noted that at the time Wilkins spoke to the employees in October 1975 he had already projected figures for 1976 and, based thereon, had decided that the Baton Rouge plant would have to be reopened at some (Continued) 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established by the Supreme Court in Gissel Packing Co.,5 and found that the likelihood of strikes at unionized plants were "objective fact"; that Wilkins' sole motive for opening the Baton Rouge line when he did was his concern that a Tiptonville strike would leave Respondent without any PVC production; that Respondent's action was not "inherently destructive of employee interest" as construed by the Supreme Court in Great Dane Trailers,6 but rather any harm which the employees suffered was "comparatively slight," and since a substantial business end was thereby served the Administrative Law Judge con- cluded that Respondent's action was no violation of Section 8(a)(3) and Respondent's prior announce- ment of that action was not an 8(a)(1) violation. We disagree with the Administrative Law Judge's analy- sis of the record evidence and with his application of relevant principles of law thereto. Without attempting to unscramble entirely the Administrative Law Judge's tangled reasoning, which we have here only summarized, it is evident that the Administrative Law Judge's reading and application of the Supreme Court's Gissel and Great Dane decisions is faulty and his own decision contains many contradictions and inconsistencies. In the first place, the Administrative Law Judge is plainly wrong in concluding that fear of the possible economic impact of unionization-here Wilkins' asserted concern that if Tiptonville employees selected the Union they would sooner or later engage in a strike-is at once an "objective fact" and a "substantial and legitimate business reason" for threatening to take steps, and actually taking steps, that would inevitably end in the loss of work and in layoffs. Obviously, the unionization of its employees will have some economic impact on an employer. However, were we to adopt the Administrative Law Judge's reasoning that the fear of such potential impact justifies an employer in announcing to employees that if they select the union it will take action that will lead to the loss of their work and to layoffs, we will have gone a long way toward undercutting, if not eliminating, the rights guaran- teed employees under Section 7 of the Act. We can think of no more potent threat of retaliation available to an employer than a threat of loss of work and of layoffs if employees choose the union. The Administrative Law Judge's analysis would also rule out, for all practical purposes, any applica- tion of the unfair labor practice sections of the statute in the context of an employer's response to the organizational activities of its employees. Indeed, one may safely assume that at the heart of every point in 1976 but had not determined precisely when. He was then thinking of a January I. 1976. startup with the plant being operational 60 to 90 days later. He did not inform the employees of his decision (regardless of the Union) to open up the Baton Rouge line at some point in 1976. antiunion campaign which previously this Board has found unlawful there existed employer fear of the economic impact of unionization. To suggest that the existence of such a "fear" immunizes the employer from the application of the Board's processes, in effect would render Section 8(a)(1) and (3) of the Act meaningless. Such a result is, of course, contrary to Great Dane, to the runaway plant cases (of which this is a variety), and to numerous other decisions of the Board. Turning to the specifics of this case, we are satisfied that the record warrants finding a violation of Section 8(a)(1) predicated on Wilkins' October 1975 statements to Tiptonville employees and a violation of Section 8(a)(3) based on his decision to implement the reopening of the Baton Rouge line immediately on his return from the Tiptonville plant. As for the Administrative Law Judge's reading of Gissel and his conclusion therefrom that Wilkins' statements about reopening the Baton Rouge line were predictions based on objective fact, the Admin- istrative Law Judge conceded that "a strike at Tiptonville was not even a cloud on the horizon no larger than a man's hand .... " Moreover, as found specifically by the Adminstrative Law Judge, at the time Wilkins told employees that if they selected the Union he would reopen the Baton Rouge line he knew, based on Respondent's own sales predictions, that the Baton Rouge line would have to be reopened at sometime in 1976, union or no union. By coupling the reopening of the Baton Rouge line and the consequent likelihood of layoffs at Tiptonville with a union victory, Wilkins could only have intended to convey to his Tiptonville employees a threat of economic retaliation if they voted for the Union. The testimony of his employees makes it clear that he succeeded in conveying the message. As for the question of motivation behind Wilkins' decision to reopen Baton Rouge immediately on his return from the Tiptonville trip, it is essential to note the Administrative Law Judge's finding that the decision was triggered by what Wilkins saw at Tiptonville, i.e., a plant "irretrievably lost" to the Union. In fact, as the Administrative Law Judge admits, had Wilkins acted on the basis of business considerations (sales), "he might well have post- poned the decision to reopen Baton Rouge .... Instead, he reopened the Baton Rouge line at a time when there was no need for additional PVC produc- tion. Thus, Wilkins intentionally set the stage for the Tiptonville layoffs which even the Administrative Law Judge concedes need never have happened but for the untimely and unwarranted decision to open 5 N L. R.B. v. Gissel Packing Co., Inc., 395 U.S. 575(1969). 6 N. L. R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). 432 ETHYL CORPORATION Baton Rouge immediately. Wilkins also demon- strated to employees, as one supervisor pointed out, that he was "a man of his word." 7 The Administrative Law Judge's rationale for concluding that Respondent's action in reopening the Baton Rouge line was neither discriminatory nor injurious, to any substantial extent, to employee rights is also mistaken. Although at best the Administrative Law Judge's reasoning is convoluted, he appears to be arguing that his conclusions necessarily follow from the absence of evidence that Respondent selected known union adherents for layoff at Tiptonville, but rather followed seniority, "the ultimate in nondiscriminatory standards." For the reasons expressed previously herein, it is plain that Respondent's decision to reopen the Baton Rouge line and the Tiptonville layoffs resulting therefrom were, by Respondent's own admission,8 caused by the advent of the Union and Respondent's hostility to it, and therefore violated Section 8(a)(3) of the Act. That Respondent did not choose to compound the wrong by picking out union adherents for layoff at Tiptonville can hardly cure the unlawful nature of Respondent's initial decision causing the layoffs. Taking the Administrative Law Judge's position to its logical conclusion, one might as well contend that if an employer decides to eliminate an incipient union movement "root and stem" by discharging the entire employee complement his decision to do so is not discriminatory. See, in this regard, Rea Trucking Company, Inc., 176 NLRB 520 (1969). Our dissenting colleague has, we think, failed to take account of record facts and has relied on the wrong legal principles. In the first place, this is not a case in which evidence of Respondent's unlawful motive is lacking. On the contrary, and although our colleague would have it otherwise, the record establishes that the Company responded to its employees organizational activities with an antiunion campaign orchestrated by the highest levels of its management,9 including admissions by the Company that it would close the plant to avoid having the employees represented by a union, and that this was the purpose of starting PVC production at Baton Rouge. Most importantly, the application of relevant legal principles to the record plainly demonstrates the coercive and unlawful nature of statements made 7 The Administrative Law Judge found that Wilkins stated at a supervisors' meeting, "Those sons-of-bitches think I'm kidding. It's not a threat. it's a promise. I will shut down one line if the Union comes in." However, based on his prior analysis of the legal consequences of Wilkins' similar statements to employees, the Administrative Law Judge concluded that a supervisor who repeated the above quote to employees did not thereby violate Sec. 8(aX 1) of the Act. We disagree with the Administrative Law Judge's substantive finding and with his apparent refusal and failure to consider Wilkins' comments to supervisors as background which further illustrates the unlawful nature of Wilkins' statements to employees. by Respondent's division president and by its supervisory personnel concerning the opening of the additional PVC production line and the probable loss of work at Tiptonville. It would appear that our colleague's difficulty with this aspect of the case lies in his inability or unwillingness to distinguish between a lawful predic- tion, based on "objective fact," of consequences beyond the employer's control and a thinly veiled threat of economic retaliation against employees who persist in their organizational activities. As we have noted previously herein, any contention that this Respondent's purported "fear" of the possible or potential effect of unionization-the supposition of a greater likelihood of strikes-constitutes "objective fact" within the meaning of the Supreme Court's Gissel decision is without support in logic or in law. And our colleague concedes as much by admitting the obvious-that no strike was anticipated, let alone imminent, at the Tiptonville plant. Accordingly, for all the foregoing reasons, we conclude that Respondent violated Section 8(a)(1) and (3) of the Act, as alleged. B. Other Violations Alleged 1. The Administrative Law Judge concluded that Supervisor Nunnery did not violate Section 8(a)(l) when, in relaying to several employees the comments of Wilkins at a supervisors' meeting regarding the possibility of a reduction in plant production if the Union came in, he quoted Wilkins as having remarked that, "Those sons-of-bitches think I'm kidding. It's not a threat, it's a promise. I will shut one line down if the Union comes in." We find merit in the General Counsel's exception to the Adminis- trative Law Judge's dismissal of this allegation as we have noted in fn. 7, supra, and, accordingly, we find that by Nunnery's statements Respondent violated Section 8(a)(l). 2. The Administrative Law Judge found that Respondent's representative, Baker, did not violate Section 8(a)(1) during an exchange with employees Brewer and Bargery while he walked through the plant one evening. After observing their union buttons, Baker asked Bargery, "Why are you wearing the buttons anyway?" Bargery laughed and respond- ed, "I don't know. I'm wearing them because See, inter alia, fn. 7, supra. 9 We should not have thought it necessary to remind our colleague that, although direct evidence of unlawful intent (such as an admission by the employer as to his actual state of mind) necessary to establish a violation of Sec. 8(a)(3) is rarely available, we are fully warranted in considering all the facts and circumstances of a case and in drawing therefrom any and all reasonable inferences going to the matter of motive. See Darlington Manufacturing Company, 165 NLRB 1074 (1967); Shattuck Denn Mining Corporation v. N. LR.B., 362 F.2d 466 (C.A. 9, 1966). 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD everybody else is." Baker responded, "I'll be damned if ya'll can't . . . up a wet dream." The employees laughed and Baker departed. The Administrative Law Judge dismissed the 8(a)(1) allegation by concluding that the exchange was a joke that did not rise to the level of 8(a)(l) coercion. Contrary to the Administrative Law Judge, we find that Baker's comments violated Section 8(a)(l). It is well estab- lished that the coercive and unlawful effect of a statement is not blunted merely because interroga- tions of, warnings to, or disparaging statements about union adherents are accompanied by laughter or made in an offhand humorous way. to 3. The Administrative Law Judge found that Plant Manager Birch did not violate Section 8(a)(l) during a conversation with employee Moore in the foreman's office. During the conversation Birch asked Moore how he felt about the Union. Before Moore responded, Birch said, "Well, I don't want to put you on a spot. I don't know how you're going to vote and I don't want to know." Moore said he was still undecided. The Administrative Law Judge, in dismissing the charge on the basis of Birch's disclaimer, rejected the General Counsel's contention that the exchange was coercive. We disagree with the Administrative Law Judge. Although Birch did include a disclaimer-that he did not want to put Moore on the spot and that Moore did not have to answer-by then Birch had already confronted Moore and, if Moore did not answer, his silence could be construed as support for the Union. Accordingly, we find that Birch violated Section 8(a)(1) by coercing Moore in the exercise of his Section 7 rights. 4. The Administrative Law Judge found that Respondent's employee relations representative, Darryl LeBlanc, did not violate Section 8(a)(1) by indicating to employees that Wilkins was a "man of his word." This comment arose after some employees inquired about the seriousness of Wilkins' projection that production would be reduced if the Union won. LeBlanc then said that he could not comment about what Wilkins had said because he was not present at the time, however, Wilkins was a "man of his word." The Administrative Law Judge had relied on his dismissal of the 8(a)(1) violation concerning Wilkins' actual statement to dispose of the LeBlanc statement. "' See, e.g.. Lucy Ellen Candy Division of F & F Laboratories, Inc., 204 NLRB 121 (1973). i" While a majority of the panel would affirm the Administrative Law Judge, Member Jenkins would reverse his finding that Plant Manager Birch did not violate Sec. 8(aKI) dunng a conversation with employee Cranford after one of the meetings with the employees. At that time, Birch approached Cranford in the laboratory and inquired about the impression Wilkins had made during the meeting. After Cranford ascertained that Birch was serious, Cranford responded, "Well, I think he ... and fell back in it." Birch then said. "What do you mean by that?" Cranford answered. "Well, as it was standing, in my opinion. 50 percent of the men that was in Since the LeBlanc statement is so closely con- nected to the actual statement by Wilkins, and since we have found that statement to be violative of the Act, we conclude, unlike the Administrative Law Judge, that the LeBlanc statement is also violative of Section 8(a)(1). 5. With respect to the General Counsel's excep- tions to the Administrative Law Judge's finding that Respondent's representatives-Wilkins, Gyan, and Baker-did not violate Section 8(a)(I) when they solicited grievances from the Tiptonville employees during the plant meetings on October 13 and 14, we find it unnecessary to pass on this issue inasmuch as an additional finding thereon would be cumulative." AMENDED CONCLUSIONS OF LAW Add the following as Conclusions of Law 7 and 8: "7. By threatening employees that if they select a union production will be reduced and jobs will be lost, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(aXl) and 2(6) and (7) of the Act. "8. By reducing production, laying off employees, and reducing overtime because its employees might select a union to represent them for collective bargaining, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act." THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and that it take certain affirmative action, including making whole all employees who were laid off and who were denied overtime as a result of the reduction in PVC production. All backpay computa- tions shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The attached order and notice shall be substituted for that of the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor the meeting would have voted against the Union. But then he came in and acted the way he did, and they'll vote for it now. I know I will." Birch then said, "Are you going to vote for it because you're mad, or did he change your mind?" The Administrative Law Judge reasoned that Birch did not initially attempt to ascertain how Cranford felt about the Union; rather, Cranford volunteered that information and Birch's words would not have restrained or coerced any employee. Member Jenkins would find that, although the initial exchange between Birch and Cranford was relatively innocuous, when Birch questioned Cranford about his motive in supporting the Union, the incident reached the level of a violation because it would tend to coerce the employee in exercising his Sec. 7 rights. 434 ETHYL CORPORATION Relations Board hereby orders that the Respondent, Ethyl Corporation, Tiptonville, Tennessee, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that if they select a union production will be reduced and jobs will be lost. (b) Reducing production, laying off employees, and reducing overtime because the employees may select a union to represent them for collective bargaining. (c) Soliciting employee grievances. (d) Interrogating employees about their union sympathies and desires. (e) In any other manner interfering with employees or attempting to restrain or coerce employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole laid-off employees Thomas J. Dial, John D. Moore, Grant V. Nichols, Roger W. Norquist, Jr., Jackie L. Brewer, J. W. Ashmore, James F. Tolley, Jr., Mark E. Rhodes, and Charles E. Archie, and all other employees, for any loss of earnings or other monetary losses suffered by them in the manner set forth in the section of this Decision entitled "The Remedy." 1 2 (b) Post at its plant in Tiptonville, Tennessee, copies of the attached notice marked "Appendix." 1'3 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's authorized 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER WALTHER, dissenting: Unlike my colleagues, I would dismiss the 8(a)(1) and (3) allegations of the complaint against Respon- dent which stemmed from the layoff of nine employees at the Tiptonville plant. I believe, as did 12 The record indicates and the Administrative Law Judge found that Respondent reemployed seven of the nine laid-off employees in April 1976. To the extent that this action occurred and to the extent that the remaining two employees failed to express interest in resuming their jobs, these are factors that can properly be considered at the compliance stage of this proceeding. ':' 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 the Administrative Law Judge, that Respondent predicated its action on sound and legitimate business considerations and that the harm that resulted to the employees was "comparatively slight." I find also that not only does the record evidence fail to support the majority's conclusions to the contrary but that, in their zeal to find violations, the majority misconstrued the Supreme Court's pronouncements in Great Dane Trailers,'4 and failed to consider the Supreme Court's decisions in Brown Food Store'5 and American Ship Building Co. 16 The facts in this case are basically uncontested. The Charging Party conducted an organizational campaign at Respondent's Tiptonville, Tennessee, plant in the fall of 1975. Respondent engineered its own campaign, during the course of which it informed the employees that, if the Charging Party won, it would be forced to reopen an inactive PVC line in Baton Rouge, Louisiana, as a hedge against a strike at Tiptonville which could render it incapable of producing any PVC compounds.17 Respondent informed the employees that, should the Union win and the Baton Rouge production line be reopened, it could well result in a production cutback at Tipton- ville. Thereafter, sensing the likelihood of a union victory, Respondent began production of the PVC compound at Baton Rouge. As a result of this new source of production, Respondent, some 3 months later, laid off nine Tiptonville employees. These employees were later offered reemployment when an increase in demand for PVC justified full production at both Tiptonville and Baton Rouge. On the basis of Respondent's layoff and its prior statements about the possibility of that layoff, my colleagues find that Respondent violated the Act. Resolution of this case, in my view, requires that the needs of Respondent in effectively operating a business in a competitive industry and the protec- tions that the Act furnishes employees in the exercise of their Section 7 rights be placed in their proper perspective. In other words, the dilemma in this case is resolved by balancing conflicting rights. The Administrative Law Judge recognized this and did a thorough job of sifting through the various compet- ing interests here. His analysis of the factual and legal issues involved merits reiteration. In essence, the Administrative Law Judge found that whether Respondent's reason for reopening the Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 4 N LR. B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967). is N.LR.B. v. John Brown, d/b/a Brown Food Stores, 380 U.S. 278 (1965). is American Ship Building Co. v. N.L R.B. 380 U.S. 300 (1965). '7 At this time all of Respondent's PVC compounds were being manufactured at Tiptonville. In the event of a strike at Tiptonville, Respondent would need a 60- to 90-day leadtime before production could begin at Baton Rouge. 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baton Rouge line was discriminatory, as defined in the Act, was to be determined in accordance with the standard set down in the Supreme Court's Great Dane Trailers decision. There, the Court noted that the 8(a)(3) proscription against "discrimination . . . to . . . discourage" union membership meant that the violation would turn on whether the discrimina- tion was motivated by an antiunion purpose. It is true that certain actions were deemed by the Court to be so "inherently destructive of employee interests" that they were generally proscribed irrespective of motivation. These actions, the Court noted, carried their own indicia of illegal intent. Other employer actions, however, the Court added, might result in "comparatively slight" harm to employee rights while at the same time serving a legitimate business purpose. In such circumstances, the employer's conduct is prima facie lawful and affirmative evi- dence of illegal intent must be shown to make out a violation. The Administrative Law Judge set out these principles noted by the Court and, applying them, found Respondent's action in reopening the Baton Rouge line was not "inherently destructive" of employee rights. He noted that the term "inherently destructive" generally involved situations of dispar- ate treatment of prounion employees and that such had not occurred here. Rather, the Administrative Law Judge found that, in a legal sense, the harm to the Tiptonville employees was comparatively slight. He noted, for example, that no prounion employee had been singled out for layoff; that the number of employees laid off was kept to a bare minimum; and that all laid-off employees were called back as soon as possible. The Administrative Law Judge also found that the reopening of the Baton Rouge production line served a substantial business need in protecting against the possibility of Respondent's suffering a complete inability to produce the PVC compound for a lengthy period of time should a strike occur at Tiptonville. Accordingly, the Admin- istrative Law Judge concluded that in the absence of countervailing evidence of illegal intent Respon- dent's action was lawful. My colleagues categorize the Administrative Law Judge's analysis as "convoluted." While they may deem it such, the Supreme Court asks nothing less. Indeed, in its place, my colleagues substitute simplis- tic reasoning which, as is noted further below, the Supreme Court has rejected on numerous occasions. My colleagues incorrectly assume that, because an action such as the reopening of the Baton Rouge production line may tend to discourage union activities, the action was meant, in fact, to discourage those activities in contravention of the Act. t" Brown Food Store, supra at 286. 19 But see American Ship Building Co., supra at 312, for a possibly Three elements must be present to establish a violation of Section 8(a)(3). As the Supreme Court has indicated, "under that section both discrimina- tion and a resulting discouragement of union membership are necessary, but the added element of unlawful intent is also required."1 8 Here, to the extent that Respondent took certain action in response to the union activities of the Tiptonville work force, it may be said that it "discriminated" against them.19 And to the extent that its action may have dissuaded some of the employees from support- ing the Union, it may also have discouraged union membership. But such conclusions prove nothing. In Brown Food Store, supra at 286, the Supreme Court noted that: Under that section [Section 8(a)(3)] both discrim- ination and a resulting discouragement of union membership are necessary, but the added element of unlawful intent is also required. In Buffalo Linen [another case the Supreme Court decided] itself the employers treated the locked-out em- ployees less favorably because of their union membership, and this may have tended to discourage continued membership, but we reject- ed the notion that the use of the lockout violated the statute. The discriminatory act is not by itself unlawful unless intended to prejudice the employ- ees' position because of their membership in the union; some element of antiunion animus is necessary. [Emphasis supplied.] My colleagues have failed to prove that critical third element of an 8(a)(3) finding emphasized above. To the extent my colleagues do attempt to prove that element, their attempts fail. First, they attempt to belittle Wilkins' fear of a strike at Tiptonville by noting that the possibility of such a strike was in no way imminent. However, my colleagues have failed to consider Respondent's unique situation in which it took a 60- to 90-day startup period before a PVC production line could be operational at any location. While the possibility of a strike at Tiptonville might not have been an objective fact on the day Wilkins spoke his words, the possibility of a strike at some point at a unionized plant is clearly, as the Adminis- trative Law Judge held, an objective fact. Equally clear is the fact that it was this more generalized situation which Wilkins had in mind, that a union victory was a certainty, when Respondent started up the Baton Rouge line. The practical result of my colleagues' view is to supply the Union with significant leverage at the bargaining table; i.e., the knowledge that, since it would take 60 to 90 days for contrary view. In any event, I will assume arguendo that Respondent "discriminated" here. 436 ETHYL CORPORATION any PVC startup operation at another facility to become effective, Respondent would be vulnerable to a strike which would effectively preclude Respon- dent from producing any PVC compound anywhere. I find nothing in either the letter or spirit of our Act which precludes Respondent from counteracting this leverage through protective measures taken for strictly business purposes.2 0 My colleagues raise basically the same complaint that they do about the absence of an imminent strike when they ascribe a sinister motive to the fact that the Baton Rouge startup occurred at a time when there was no need for additional PVC production. However, such a fact also proves nothing. Again, it was Respondent's unwillingness to be caught in a 2- to 3-month period in which a strike would shut down its entire capacity to produce an entire product line that resulted in its decision to open up the Baton Rouge line. The fact that there was no immediate market for the additional PVC to be produced at that time does not indicate that that decision was motivated by antiunion-as opposed to legitimate business-considerations. My colleagues also note that Wilkins failed to tell the employees that the Baton Rouge line was going to open at some point in 1976, "union or no union." They then indicate that by Wilkins' "coupling the reopening of the Baton Rouge line and the conse- quent likelihood of layoffs at Tiptonville with a union victory" he meant to convey a threat of economic retaliation if the Union won. My col- leagues thus state that Respondent's coupling the likelihood of layoffs only with the Union evidences an intent to retaliate against the employees for their union activities. My colleagues' conclusion is pure speculation unless they are able to show that Respondent anticipated laying off Tiptonville em- ployees in any event when Baton Rouge opened up. Absent such evidence-of which there is none-I find nothing sinister in Respondent's failure to mention the projected 1976 Baton Rouge startup to the employees in 1975.21 20 In a context where a union has already been selected as the employees' bargaining representative, the Supreme Court, in Brown Food Store, supra at 283. stated. "Even the Board concedes that an employer may legitimately blunt the effectiveness of an anticipated stnke by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself 'virtually strikeproof.' " (Emphasis supplied.) The situation here is not appreciably different from that quoted. 21 My colleagues also find fault with the Administrative Law Judge's failure to consider Supervisor Nunnery's comments with respect to what Wilkins allegedly told the supervisors as evidence of the unlawful nature of Wilkins' statements to the employees. To the extent my colleagues rely on Nunnery's statements as evidencing Wilkins' intent, they are, in essence, relying on hearsay testimony. While I agree that Nunnery's statements violate Sec. 8(a)( 1), I do so purely on the basis that they differ from Wilkins' statements because thee were not qualified by any reference to business considerations. Nunnery's statements, however, can hardly stand as proof of what Wilkins, in fact, said and, accordingly. what his intent was in this proceeding. In essence, my colleagues have failed to establish the antiunion motive necessary for an 8(a)(3) violation. However, they apparently also conclude that, irrespective of Wilkins' intent, Respondent's action was "inherently destructive of employee interest." In fact, I think this is the bottom line of their decision. Yet, to support such a conclusion, their analysis ultimately falls on the platitude that any harm to employees which has a union-related basis is violative of the Act. The simple answer to this incorrect assumption is the admonition made by the Supreme Court to the Board in American Ship Building Co., supra at 312-313, to the effect that "the existence of an arguable possibility that someone may feel himself discouraged in his union member- ship or discriminated against by reason of that membership cannot suffice to label them violations of § 8(aX3) absent some unlawful intent;on." My colleagues have disregarded this language of the Supreme Court in their decision here. Further, I submit that the real issue in this proceeding in whether Congress intended to vest this Board with the authority to regulate the bargaining power of each party2 2 or whether each party should be afforded the opportunity to pursue those interests which the Act allows to be protected. I think the answer lies with the latter observation. In essence, I believe that the changed circumstances associated with the Union's arrival here at Tiptonville furnished Respondent with a legitimate basis for reexamining its production structure and reassigning work as it did merely to protect23 itself from disastrous eco- nomic consequences at sometime in the future should the Tiptonville employees select the Union and engage in a work stoppage. Moreover, the Board must realize that when it finds a violation in a case such as the instant one the result is merely to encourage employers who must rearrange their production to orchestrate such changes so that they are camouflaged from Board review. Furthermore, it is particularly noteworthy in discussing Respondent's intent that it resumed operating the Tiptonville plant at full capacity once it had sufficient orders. This 22 See, e.g., Brown Food Store, supra at 283, where the Court observed: We begin with the proposition that the Act does not constitute the Board as an "arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands" Labor Board v. Insurance Agents, 361 U.S. 477, 497. In the absence of proof of unlawful motivation, there are many economic weapons which an employer may use that either interfere in some measure with concerted employee activities, or which are in some degree discriminator) and discourage union membership, and yet the use of such economic weapons does not constitute conduct that is within the prohibition of either I 8(aXI) or § 8(aX3). 23 I stress the word "protect" since any reduction in production that is based on punishing the employees for selecting a union would constitute a violation of the Act. 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrates that Respondent did not harbor any desire to penalize the employees for selecting the Union. Accordingly, because of the sound and legitimate business reasons of Respondent and the compara- tively slight harm the shift in production had on the employees, I would affirm the Administrative Law Judge's dismissal of the 8(a)(1) and (3) charges that arose from the layoff at Tiptonville.2 4 24 With the exception of the Nunnery statement I have alluded to, supra. I would affirm the remaining findings of the Administrative Law Judge for the reasons he sets out. I must comment here, however, on the majority's finding of a violation in Supervisor Birch's "questioning" of employee Moore. My colleagues note that Birch asked Moore about his feelings on the Union, but also note that, before Moore could even respond, Birch retracted his question rather emphatically. Nevertheless, they find a violation based on the incredible theory that nothwithstanding Birch's later comment to Moore that he did not want an answer from Moore, that, if Moore did not answer, his silence would be construed as support for the Union. My colleagues' theory precludes any possibility that this or any other respondent could effectively disavow a superficially illegal statement. I leave it to a reviewing court to judge the validity of this ingenious approach to labor relations that my colleagues are constructing. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT threaten employees that if they select a union production will be reduced and jobs will be lost. WE WILL NOT reduce production, layoff em- ployees, or reduce overtime because our employ- ees may select a union to represent them for collective bargaining. WE WILL NOT solicit employee grievances. WE WILL NOT interrogate employees about their union sympathies and desires. WE WILL NOT in any other manner interfere with employees or attempt to restrain or coerce employees in the exercise of the above rights. WE WILL make whole Thomas J. Dial, John D. Moore, Grant V. Nichols, Roger W. Norquist, Jr., Jackie L. Brewer, J. W. Ashmore, James F. Tolley, Jr., Mark E. Rhodes, and Charles. E. Archie, and all other employees, for any loss of earnings or other monetary losses suffered by them due to their loss of work because of the unlawful layoff. ETHYL CORPORATION DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge was filed on January 15, 1976,1 and amended on February 24. The complaint was issued on February 25. The hearing was held in Dyersburg, Tennessee, on April 19 and in Tiptonville, Tennessee, on April 20, 21, and 22, and May II and 12. The hearing was closed by telegraphic order on June 18 after the Board, on interim appeal, reversed my refusal to quash a subpena directed to the Regional Director. The principal issue litigated was whether Respondent's motive for reopening a shutdown polyvinyl chloride (PVC) compounding line at its Baton Rouge, Louisiana, complex, thereby causing a layoff and an end to automatic overtime at its Tiptonville plant, was discriminatory within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. (An allegation that Respondent violated Section 8(a)(3) and (1) of the Act by changing employee Ben Avery from straight day shift to a rotating shift was dismissed at the conclusion of the General Counsel's case in chief for failure of proof.) For the reasons set forth below, I find that it was not. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, owns and operates chemical plants in various States. At its plant in Tipton- ville, Tennessee, it manufactures PVC compounds. During the 12 months just prior to issuance of the complaint in this case, it received products valued in excess of $50,000 which were shipped directly to the Tiptonville plant by suppliers located outside the State of Tennessee, and it shipped products valued in excess of $50,000 directly from the August through December dates are 1975. January through June dates are 1976 unless otherwise indicated. The General Counsel's motion that the index page in volume VI of the transcript be corrected to reflect the fact that Resp. Exh. I I was withdrawn and that the exhibit be removed from the file of Respondent's exhibits which have been received into evidence is hereby granted. Resp. Exh. II will be placed in the rejected exhibits file. Respondent's motion to correct the transcript is hereby granted. 438 ETHYL CORPORATION Tiptonville plant to customers located outside the State of Tennessee. II. THE UNFAIR LABOR PRACTICES A. Background The only other Ethyl plant which figures in this case is the one located at Baton Rouge, Louisiana. It is a large, unionized complex containing various operations and employing some 2,000 persons. For instance, the PVC resins which are used in Tiptonville to make PVC compounds are manufactured there. One PVC compound- ing line is part of the Baton Rouge complex. As of August 1975, when the events of this case began, it had not been in operation since early December of 1974. Respondent had closed it down at that time because the national recession and other factors had sharply reduced the demand for PVC compounds. The Tiptonville plant produces PVC com- pounds only. It has approximately 50 employees. Because of the drop in PVC sales, it was cut back to a three-shift, 5- day-a-week operation. However, by August the demand for PVC compounds had risen to the point where its two lines were running around the clock, 7 days a week. This required 4 shifts of II men each. (The balance of the employees at Tiptonville are maintenance men. They work a straight day shift.) The shifts rotated in such a manner that each week one was paid overtime for 1 day because it worked on 6 days during the week. Sometime during the second week in August two Tiptonville employees approached Marvin Burkhardt, a field representative for the Charging Party (variously referred to herein as the Union, the Rubber Workers Union, and URW), and asked his help in organizing the plant. Burkhardt launched the Union's campaign at a meeting held during the last week in August. He found the overwhelming majority of the employees receptive to the idea. He quickly obtained many authorization cards. He petitioned for an election, which was ultimately held on November 7 and 8. The Union won handily by a margin of 42 to 6 with I void ballot. Certification and bargaining for an initial contract, still in progress at the time of the hearing in this case, quickly followed. The Union's organizing campaign was no secret to Respondent from the beginning. On the evening of the day the first meeting was announced, Leddy Hatley, an employee, telephoned Wayne Birch, the plant manager, at home and tipped him off. (Hatley did not tell Birch who was calling, but Birch recognized his voice anyway.) Birch thanked him and politely declined Hatley's offer to keep him informed of further developments. There was no need for the latter, as it turned out, for the campaign which was launched at the first union meeting was conducted openly. Most of the employees wore union buttons while at work. Employees discussed the subject, among themselves and with their supervisors when the occasion arose, while in the plant. Those who were for the Union did not hesitate to express their views, sometimes in strong terms, to their supervisors. Respondent made no effort to restrict union activities in the plant. The morning after Hatley telephoned Birch, Birch telephoned his superiors in Baton Rouge and informed them that the Union was attempting to organize his plant. The Tiptonville plant is part of Respondent's pipe and polymer division. The news was immediately relayed to .Ray Wilkins, president of that division. Wilkins decided that the time had arrived for him really to visit the Tiptonville plant for the first time in order to get acquainted with its employees and to take a firsthand look at its problems. (On at least one prior occasion when he had planned such a junket he had been forced to cancel it by the press of other business.) The visit was set for Monday, October 13, through Wednesday, October 15. Wilkins was accompanied by Joseph Gyan, manager of employer relations for Respondent's plastics division, and William Baker, manager of manufacturing for the pipe and polymer division. (Baker was manager of the Tiptonville plant from August 1970 until February 1975, when he was promoted and moved to Baton Rouge. Birch, who had been plant superintendent under Baker, succeeded him in the top job at Tiptonville at that time.) Their visit was the beginning of Respondent's forlorn preelection campaign. B. The Layoff I. Facts Wilkins, Gyan, and Baker spoke to groups of employees on five different occasions. They first met with the shift that reported for work at I I p.m. on Monday, October 13. The shift which was scheduled to go off duty at that time worked overtime for more than an hour so that the three exectuives could meet with the oncoming shift. At 7 a.m. on Tuesday, October 14, they followed the same procedure with the shift scheduled to begin work at that time. At 10 a.m. that day they met with the maintenance men. At 3 p.m. and II p.m. that day they met with the third and fourth shifts. Wilkins, Gyan, and Baker did not work from a script, and their presentation was not identical in each session. (These meetings are described in greater detail in the section below which is devoted to other 8(a)(1) allegations growing directly out of Respondent's preelection cam- paign.) In each, however, Wilkins alerted the employees to the likelihood of a layoff at Tiptonville in the event the plant went union. Wilkins did not use exactly the same words in each meeting. In none of them did he say expressly that unionization would result in Respondent's shutting down one of the two compounding lines in Tiptonville. However, that is the way the employees interpreted the words he did use. Consequently, in discussing Wilkins' message after the meetings and in testifying about it during the hearing, that is the way they put it. What Wilkins did say in each of his five meetings with unit employees can be briefly summarized as follows: In the context of a discussion about strikes in which employees said they did not want or plan to strike and in which the three executives said Respondent did not doubt their sincerity and did not want a strike any more than they did, Wilkins said that, in any union plant, the probability is high that a strike will eventually occur. He pointed out that the fact Respondent's only other PVC compounding line at Baton Rouge was shut down placed Respondent in a 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position where a strike at Tiptonville would cost it all of its production. He said that Respondent could not run the risk of losing its customers, either temporarily or permanently, as a result of such a situation. He said that, if the Tiptonville plant went union, he would be forced to reopen the Baton Rouge line to avoid the possibility Respondent could be placed in such a predicament. He assured the employees that he had no intention of punishing them or penalizing them for engaging in union activities for he recognized their right to be represented by a union if they so desired. He pointed out that, if they were in his position, they would do the same thing for the same reason. He said that he hoped sales would justify the running of all three compounding lines simultaneously but that, in the immedi- ate future, he was not optimistic that Respondent could utilize such a high level of production. If it could not, he said, production would have to be cut back at Tiptonville. Wilkins had finalized his budget for calendar 1976 in July 1975. At that time, he estimated his 1976 production needs at 94 million pounds of PVC compounds. Tipton- ville's capacity is 84 million pounds a year; Baton Rouge's is 36 million. Wilkins' 1976 budget contemplated produc- ing 70 million pounds at Tiptonville, 24 million at Baton Rouge, the amount each plant would turn out if it operated on a 5-day basis all year. Consequently, prior to visiting Tiptonville in mid-October, Wilkins was aware that, if his 1976 projections proved accurate, in that event, he would have to reopen the Baton Rouge line. The only decision he had not yet reached was when. (Tentatively, he was thinking in terms of January I.) What he observed in Tiptonville triggered that decision. As early as the end of the second meeting, the one which started at 7 a.m. on October 14, Wilkins, Gyan, and Baker concluded unionization was inevitable because the men already had their minds made up and were not about to be talked out of voting for the Union. Soon after his return to Baton Rouge, sometime during the last 2 weeks in October, Wilkins decided not to wait for the results of the election scheduled for early November. He made up his mind to start up the Baton Rouge line immediately. There was no immediate need for additional production at Baton Rouge. Wilkins was motivated by the concern he had expressed to the employees in Tiptonville just a few days before. He wanted to preclude the loss of all production in the event of a strike at the Tiptonville plant. Wilkins implemented his decision immediately. Since a period of at least 60 days is required to start up a closed PVC compounding plant, he ordered the production manager in Baton Rouge to shoot for a January I start. Production of 7042, a lead stabilized compound which presents some problems involving health of employees and contamination of other products, ceased immediately at Tiptonville. As it turned out, production resumed in Baton Rouge on December 29. The line began turning out compound 7042, running 5 days a week, 24 hours a day. Since Respondent had no immediate need for additional production, the startup at Baton Rouge triggered a layoff at Tiptonville. 3 While I am forbidden to make such a finding in the absence of record testimony. I have no reason to doubt the following statement in Respon- On January 5, Baker, the divisional manufacturing manager, telephoned Birch, the Tiptonville plant manager. He ordered Birch to cut back production and lay off employees effective January 12. Birch notified the Union's stewards on January 6. Shortly thereafter a notice was posted in the plant notifying the nine least senior production employees that they were laid off effective January 12. They were Thomas J. Dial, John D. Moore, Grant V. Nichols, Roger W. Norquist, Jr., Jackie L. Brewer, J. W. Ashmore, James F. Tolley, Jr., Mark E. Rhodes, and Charles E. Archie. The cutback in production at Tiptonville was effected, not by shutting one line down completely as the employees had feared, but by going from a 7-day-a-week, 24-hour-a- day operation to a 5-day-a-week, 24-hour-a-day operation. This meant three shifts were required rather than four. Only 9 men were laid off rather than the 11 which made up a full shift at that time because an extra materials handler was added to each of two shifts. By April Respondent's sales had improved to the point where it could use Tiptonville's full production as well as the production of the Baton Rouge line. Consequently, in the second week in April Birch was ordered to return to a 7-day-a-week, 24-hour-a-day operation. He sent recall notices to all nine employees laid off on January 12. Seven of the nine returned to work on April 26. Ashmore declined. Norquist did not respond. As of May 12, the last day of the hearing, the employees at Tiptonville, who have been formed into a local of the Charging Party, had authorized their local executive board to call a strike against Respondent. Despite the fact that no agreement had been reached in negotiations which began soon after certification, the executive board had not done so.3 2. Analysis and conclusions Two unfair labor practice allegations are based on these events. The first is that Respondent violated Section 8(aX1) when Wilkins told employees "that if the Union was voted in at Tiptonville he would have to consider shutting down one production line there and reopening a line at [Respondent's] Baton Rouge location." The other is that Respondent violated Section 8(aX3) and (1) by laying off employees on January 12 and by eliminating the regular overtime built into its schedule when it utilized four shifts. Both issues turn on the question which lies at the heart of this case, i.e., did Respondent have a legal right to shift production from Tiptonville to Baton Rouge to circumvent being placed in a situation where a strike would shut down its entire production of PVC? Whether the words Wilkins spoke violated the Act turns on the rule laid down by the Supreme Court in N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), thus: An employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a dent's brief: "A contract, the terms of which were implemented by Ethyl beginning in [sic] May 21, 1976, has been agreed to by the parties." 440 ETHYL CORPORATION prediction as to the precise effect he believes unioniza- tion will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his con- trol or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. That strikes do occur in unionized plants is an objective fact. The fact that Respondent would need Baton Rouge's production in the event a strike ever occurred at Tipton- ville makes the opening of Baton Rouge a demonstrably probable consequence of such an occurrence beyond Respondent's control in the sense in which that phrase is used in Gissel. Therefore, whether the words Wilkins spoke were a reasonable prediction based on available facts or a threat of retaliation based on misrepresentation and coercion turns on whether Wilkins was implying he would act from economic necessity or for other, unrelated reasons. If the possibility of an eventual strike at Tipton- ville following its unionization, no matter how remote, was an "economic necessity" in the sense in which the Supreme Court has used that phrase, then Wilkins' message did not violate Section 8(a)(1). Wilkins' motive for reopening the Baton Rouge line, thereby causing a layoff and the end of four-shift overtime at Tiptonville, was the motive he articulated when he spoke to the employees. If it was a discriminatory motive within the meaning of Section 8(a)(3) of the Act rather than "a substantial and legitimate business end," it was not a motive based on "economic necessity." "A substantial and legitimate business end" is, of course, a phrase taken from that part of the majority opinion in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), in which the Supreme Court lays down the principles for determining whether the burden of proving a discriminato- ry motive within the meaning of Section 8(a)(3) has been met. Before I turn to the legitimacy of Wilkins' motive for reopening Baton Rouge, a word about my finding as to that motive is in order. At the hearing, the General Counsel argued vigorously that Wilkins' stated reason was merely a pretext masking his real motive of coercing the employees into voting against the Union. I read his brief as dropping that contention and agreeing with my finding here, i.e., that Wilkins' sole reason for acting to reopen Baton Rouge when he did was his conclusion that the Tiptonville plant was about to go union. Since I may be mistaken as to the General Counsel's position, I find explicitly that Wilkins' stated reason is not a pretext. I credit the testimony of Wilkins, not only as to what he said to the employees but also as to what he did and what he thought both before and after his visit to Tiptonville. In so doing, I do not discredit the General Counsel's witnesses. As already indicated, the discrepancy between their version of what Wilkins said to them and the version of Wilkins and Respondent's other witnesses is not a true credibility conflict. Rather, it is another example of employees simplifying and modifying the words actually used by an employer without in any way altering the message the employer intended to convey, a situation frequently encountered in the trial of unfair labor practice cases. By the same token, I reject Respondent's argument that avoiding the consequences of a strike at Tiptonville was only part of Wilkins' reason for ordering Baton Rouge reopened shortly after his return from Tiptonville. Respon- dent would add two other motives; i.e., production needs for 1976 and hazards associated with production of lead stabilized compounds at Tiptonville. As to the former, I credit Wilkins' testimony that he was considering a January 1, 1976, startup before he went to Tiptonville. However, it is clear from his testimony taken as a whole that he had reached no such decision before he was swayed by his realization that Tiptonville was irretrievably lost and the fear of a strike that followed the realization. Also, there is no basis in the record for a finding that Baton Rouge had to be started up precisely at the beginning of the year in order to meet the figures which Wilkins put into his budget in July 1975. In fact, as events turned out, Wilkins' prediction to the employees that sales would probably not be sufficient to justify continuing to run Tiptonville all out proved right on target. If Wilkins had acted on the basis of sales alone, he might well have postponed the decision to reopen Baton Rouge until sales picked up, apparently around the end of the first quarter of 1976, and triggered a return to full production at Tiptonville. If the reopening of Baton Rouge had been put off until that time, Wilkins could still have met the production figures he originally budgeted for 1976. With respect to lead stabilized compounds, production of 7042 ceased in Tiptonville in October as part of Wilkins' decision to reopen Baton Rouge and began in Baton Rouge on December 29. (Respondent filled orders for 7042 in the interim from inventory.) Without going into the intricacies of the testimony about the relative merits of Tiptonville and Baton Rouge for producing 7042 when twin dangers of the lead poisoning the employees who dump it into the system and contaminating other products being produced on an adjacent line are considered, I find that Respondent had a legitimate business reason for preferring to produce lead stabilized compounds at Baton Rouge rather than Tiptonville. However, it does not follow that Respondent would have reopened Baton Rouge when it did if Wilkins had not drawn his conclusions about unionization of the Tiptonville plant any more than the record establishes he would have done so because of the budget he drew up in July. But for Wilkins' fear of strikes, Baton Rouge would not have reopened on December 29. In summary, I repeat, I find that Wilkins' sole motive for reopening Baton Rouge, thereby causing a layoff and the end of four-shift overtime at Tiptonville, was his concern that a strike at Tiptonville would leave Respondent with no source of PVC production. Whether Wilkins' reason for reopening Baton Rouge was discriminatory within the meaning of the Act turns on the 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rule laid down by the Supreme Court in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, thus: Section 8(a)(3) . . . requires specifically that the Board find a discrimination and a resulting discouragement of union membership. But inquiry under §8(a)(3) does not usually stop at this point. The statutory language "discrimination . . . to . . . discourage" means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose. American Ship Building Co. v. [N.L.R.B.], 380 U.S. 300 (1965). It was upon the motivation element that the Court of Appeals based its decision not to grant enforcement and it is to that element which we now turn. In three recent opinions we considered employer motivation in the context of asserted §8(a)(3) violations. American Ship Building Co. v. [N.L.R.B.], supra; [N.L.R.B.] v. John Brown, let al. d/b/a Brown Food Stores, et al.], 380 U.S. 278 (1965); and [N.L.R.B.] v. Erie Resistor Corp., [373 U.S. 221 (1963)]. We noted in Erie Resistor, supra, at 227, that proof of an antiunion motivation may make unlawful certain employer conduct which would in other circumstances be lawful. Some conduct, however, is so "inherently destructive of employee interest" that it may be deemed proscribed without need for proof of an underlying improper motive. [N.L.RB.] v. Brown, supra, at 287; American Ship Building Co. v. [N.LR.B.], supra, at 311. That is, some conduct carries with it "unavoidable consequences which the employer not only foresaw but which he must have intended" and thus bears "its own indicia of intent." [N.LR.B.] v. Erie Resistor Corp., supra, at 228, 231. If the conduct in question falls within this "inherently destructive" category, the employer has the burden of explaining away, justifying or characterizing "his actions as something different than they appear on their face," and if he fails, "an unfair labor practice charge is made out." Id., at 228. And even if the employer does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy. Id., at 229. On the other hand, when "the resulting harm to employee rights is ... comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful," and an affirmative showing of improper motivation must be made. [N.L.R.B.] v. Brown, supra, at 289; American Ship Building Co. v. [N.LR.B.], supra, at 311- 313. The first question which arises is whether the reopening of Baton Rouge was "inherently destructive of employee interests" at Tiptonville. I think not. Cases in which that element has been found generally involve disparate treatment of prounion employees. In Great Dane itself, for example, the employer withheld vacation benefits from strikers while paying them to nonstrikers. In N.LR.B. v. Erie Resistor, Corp., et al., 373 U.S. 221 (1963), the employer granted superseniority to nonstrikers. American Shipbuilding, supra, and Brown, supra, on the other hand, are lockout cases where all employees were affected by the step the employer took. No such element is present here. Respondent did not put Baton Rouge on a 7-day, 24-hour schedule in order to get maximum production there so that it could make a maximum cutback at Tiptonville. It did not make its selection for layoff at Tiptonville on the basis of the union activities or sympathies of the affected employ- ees. Rather, it began at Baton Rouge with the minimum amount of production possible in an efficient continuous line process and reduced production at Tiptonville the minimum required efficiently to meet its current needs. It selected employees for layoff at Tiptonville on the basis of seniority, the ultimate in nondiscriminatory standards. Only one element in the situation which Respondent faced when Wilkins made his decision falls on the other side of the scale. A strike was not imminent at that time. In fact, it is not overstating the situation to say that a strike at Tiptonville was not even a cloud on the horizon no larger than a man's hand when Wilkins issued his order. Therefore, it can be argued, the timing of the decision alone is sufficient to prove Respondent's discriminatory motive. However, when weighed against all the other elements in the situation which support the conclusion, already reached, that Respondent had only its legitimate business interests in mind and not a desire to undermine its employees' union activities, it is not enough. I find, therefore, that Respondent's reopening of Baton Rouge on December 29 was not inherently destructive of employee interests. Cf. also Local 155 of the International Molders and Allied Workers Union, AFL-CIO [United States Pipe and Foundry Co.] v. N.LR.B., 442 F.2d 742 (CA.D.C., 1971). Since timing alone is not enough here to justify an inference of improper motive, the final step is to determine the legitimacy of Respondent's actual motive by weighing it against the invasion of the rights of the employees at Tiptonville. Applying, once again, the rule laid down in Great Dane, that turns on whether the harm, all things considered, was "comparatively slight." I think, in a legal sense, it was. Respondent did not attempt to single out prounion employees to be laid off. It kept the number of employees laid off to the irreducible minimum when it eliminated one shift, even saving the jobs of two employees by expanding the size of two other shifts. As soon as sales permitted, all laid-off employees were recalled to work and automatic overtime resumed with the return to four shifts. Respondent might have avoided even that slight harm to a unit of employees which voted overwhelmingly for union representation if it had waited to see how its negotiations with the Union went after certification. However, a finding against Respondent on that basis would substitute hind- sight for foresight, my decision for Wilkins'. Strikes are an objective fact. Wilkins' fear may have been excessive, given all the circumstances which existed when he made his decision, but it was not illegal. I find, therefore, Respon- dent served a substantial and legitimate business end when it reopened its PVC compounding line at Baton Rouge in 442 r t ETHYL CORPORATION order to avoid being placed in a situation where a strike would shut down its entire production of that product. It follows that the layoff of nine employees on January 12 and the resulting elimination of the automatic overtime implicit in a four-shift operation did not violate Section 8(a)3) and (1) of the Act. It also follows that Wilkins' statement to employees that he was going to take that step if the Tiptonville plant went union did not independently violate Section 8(a)(1) of the Act. I so find. Cf. Spalding Division of Questor Corporation, 225 NLRB 946 (1976), where "the statement was not accompanied by any explanation of economic necessity for laying off employ- ees." C. Other 8(a)(1) Allegations Growing Directly Out of Respondent's Preelection Campaign 1. Facts Each of the meetings Wilkins, Gyan, and Baker held with employees in the plant lunchroom on October 13 and 14 lasted longer than an hour, less than 2 hours. The length depended on the extent of the discussion the three executives were able to arouse. At each Baker, who was known to most of the employees on a first name basis from his recent service as plant manager in Tiptonville, began by introducing Wilkins. At the first three meetings Wilkins then spoke about his reason for coming to Tiptonville. By the afternoon of October 14, Wilkins voice was so worn that he apologized to the employees and asked Baker to open the last two meetings for him. With the exception of this minor variation, all five meetings followed the same pattern and covered, generally, the same ground. Wilkins stated his reason for visiting the plant at that particular time, i.e., a desire to get to know the plant, the men, and their problems on a face-to-face basis. There was no attempt to disguise the fact that the employees' union activities had brought Wilkins at this time whereas previously planned visits for the same purpose had been canceled by him. By the same token, the thrust of Wilkins' opening remarks was not that he had come because he saw their union activities as a threat to Respondent. Wilkins (or Baker, as the case may be) went into some detail about the state of the polyvinyl chloride business (then in a slump attributable, at least in part, to concern over whether PVC was a safe material from which to make containers and other consumer products) and Respondent's prospects over the short and long term, especially as those prospects might affect Tiptonville. The emphasis, both in the opening remarks and in what followed, was on finding out what the men had on their minds and answering their questions. To that end, early in each meeting, Wilkins, Gyan, and/or Baker invited the employees to state areas about which they had questions or concerns. They wrote a list of topics on a large pad mounted on a tripod. Then the balance of the meetings was devoted to a discussion of those topics, item by item. One subject which was discussed was the effect of unionization. In the course of that discussion Wilkins made the statements about strikes and reopening the Baton Rouge line already considered in the section entitled "The Layoff' above. He also made the point that the Rubber Workers Union, the Union the employees were signing up with, was a poor choice for workers in the polyvinyl chloride industry in view of the fact the International president of the Union had recently stated, apropos of the polyvinyl chloride hygiene issue then much in the news, that the world had gotten along without PVC in the past and could in the future if necessary. Other topics were wages, benefit plans such as retirement and insurance, and the quality of supervision in the plant. In these areas, Wilkins, Gyan, and/or Baker (as the case may be, but principally Gyan or Baker) attempted to explain the policies and plans and answer the questions. In each instance, the speaker was careful to point out that, under the circumstances, the three executives could not promise to make any changes in the current situation. At each meeting when the list of topics raised by the employees had been exhausted, the meeting ended and the men went to work. As a result of the insights gained at these meetings, Respondent decided to hold a series of additional meetings to present information to the employees about their benefits and about the Union. The first set was held I week later. It was conducted by Darryl LeBlanc, an employee relations representative under Gyan, who came to Tipton- ville from Baton Rouge, and Richard Harding, a benefit plans representative, who came to Tiptonville from Respondent's home office in Richmond, Virginia. They followed the pattern used by Wilkins, Gyan, and Baker the week before in meeting with all five shifts separately starting on Monday night, October 20, and finishing up on Tuesday night, October 21. Once again, the meetings were held in the plant lunchroom. LeBlanc and Harding used a set of flip charts which had originally been used by Harding at a similar presentation in Tiptonville in March 1974, updating the charts where necessary. They explained Respondent's benefit plans and answered, to the best of their ability, any questions raised by the employees. (No allegations of unfair labor practices in the complaint are based on what happened at these meetings.) LeBlanc returned to Tiptonville twice more between October 22 and the election, held on November 7 and 8. Each time he met with each shift in the same manner. On these occasions, however, because the lunchroom had presented too many distractions when he was there with Harding, he met with the employees in the plant manager's office. In the first of these two sets of meetings, held on October 27-28, his topic was Tiptonville's wages and benefits as compared with the wages and benefits of other plants in the area. In the second, held on November 3-4, his topic was the strike history of the Rubber Workers Union. On each occasion LeBlanc used flip charts specially prepared for the meetings. The employees at a Goodyear Tire & Rubber Co. plant located in Union City, Tennessee, some 30 miles from Tiptonville, are represented by the Union. Early in the Union's campaign, Birch had become aware that his employees were comparing their wages and benefits with those of Goodyear employees. He and Baker had visited the Goodyear plant sometime during the first half of September and talked to the plant manager. The information they obtained, both about wages and benefits and about strikes at the Goodyear plant, had been 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forwarded to Baton Rouge. It formed an important part of the information on the flip charts LeBlanc prepared for these two sets of meetings. The format of LeBlanc's meetings with the employees was the same as Harding's. He presented the information on his charts. He encouraged discussion with and among the employees, getting numerous complaints in the process. He answered their questions to the best of his ability. He was careful to point out, where appropriate, that he could not make any promises. However, in this context, he also said that he would rather deal with the employees now than come back later because, if he did come back later, it would probably be to negotiate a contract rather than to deal with their problems. He added that he would attempt to return to Tiptonville on a periodic basis in the future (something Respondent's executives had not done in the past) regardless of the outcome of the election. Employees also asked LeBlanc if Wilkins had meant what he had said about cutting back production at Tiptonville. LeBlanc's reply was that, while he could not comment on what Wilkins had actually said because he had not been present at the time, Wilkins was a man of his word. As LeBlanc was leaving one of the November 3-4 meetings, Leddy Hatley spoke briefly to him in the laboratory. Hatley said that the Union was coming into the plant no matter what arguments LeBlanc made. LeBlanc did not respond.4 The flip charts LeBlanc used on November 3-4 con- tained 23 pages. Page 12 read: The URW won an election at Custom Craft Manu- facturing Co. in Halls, Tennessee in 1972. The URW took the employees out on strike. The Company permanently replaced every striking employee and continued to operate its plant. The striking employees lost their jobs and the URW never got a contract at Custom Craft. Employees told Burkhardt, the union organizer, about this allegation. Burkhardt said it was untrue. On the afternoon of November 5 an employee told LeBlanc the employees were saying he had lied to them about the Custom Craft situation. LeBlanc went to Halls (some 40 miles from Tiptonville) that evening and checked with an official at the Custom Craft plant. On November 6, the eve of the election, he issued a letter and a six-page attachment containing a list of questions and answers to the employees. This document was essentially a rehash of the arguments LeBlanc had made at his meetings with the employees about why they should vote against the Union. The last question in the attachment is "Both you and the Union have told me so much, how do I know who to believe?" LeBlanc's answer is: I have tried in the limited time I have had to document everything I have said in black and white. I have shown you copies of all URW contracts which I have compared with Ethyl's wages and benefits. I have credited LeBlanc over Hatley as to this conversation, principally on the basis of demeanor. According to Hatley, LeBlanc asked him what he thought about the outcome of the election and then, in answer to Hatley's response, said, "I can't understand why anyone would want to vote theirself Anyone who wishes to see any documentation on URW strike activity or URW contracts please see me. Some of you have told me that the initial wage increases at Pulaski Rubber after the last contract was more than 20 cents per hour. We checked with officials at RCA Rubber in Akron, Ohio, which owns Pulaski and found that the increase in November, 1974, was 35 cents. The 20 cents which I quoted was the second year's increase. Sorry, my error-I picked up the wrong figures in the rush to get you the information. However, keep in mind that this was won after a fifteen day strike and even with this increase, their top wage of $3.35 per hour is much less than yours. And the URW has been there since 1961. Some of you have asked me for details on the Custom Craft strike. I drove over to Halls and talked to Mr. Fowley, a member of local Custom Craft manage- ment. He gave me these facts. In May, 1972, the URW was voted in at Custom Craft. Some 201 employees later went on strike. The company went to Court and got an injunction against the Union to make it let employees who wanted to work come into the plant. (See me for a copy of the Court injunction). About 70 employees came back to work after the injunction. The company began permanently replacing the 130 employ- ees who stayed out. When the company started hiring replacements, about 70 more striking employees came back. The rest stayed out. In March of 1973, the URW called off the strike and asked Custom Craft if it would take back the rest of the strikers. The company in an act of kindness agreed to offer certain strikers their jobs back. Finally, in June, 1975, the employees at Custom Craft voted the URW out by a two to one margin. The URW never got a contract at Custom Craft. The URW certainly did the employees at Custom Craft no favor. Even those who came back after the strike lost some five month's pay. Many lost their homes, their cars, their boats, and were forced to move away in search of a job. The URW kept the case tied up in Court for three years and the company could not by law give any wage increases during that time. The URW cost everybody a lot of money, the employees who went on strike and the employees who stayed in the plant and worked. I appreciate your questioning me about Custom Craft. I had no idea how badly the Union treated those employees. Now we all know. I have tried my best to be as honest with you as I know how. Where you have come back to me and questioned my facts, I have gone back and gotten you the straight answers. This is the type of communication between employees and management which I hope you will let me bring to Tiptonville in the future. The Union held a final meeting on the evening of November 6. Many employees attended. Burkhardt was given a copy of LeBlanc's letter and handout. He commented on its statements about the Custom Craft situation. out of a job." LeBlanc's testimony was frank and forthright throughout. Hatley, the informer, struck me as the sort of brash young man who would have volunteered his views to a low-level executive. 444 ETHYL CORPORATION 2. Analysis and conclusions Allegations in the complaint that Respondent violated Section 8(a)(1) of the Act when LeBlanc interrogated an employee and threatened him with job loss are based on LeBlanc's brief exchange with Hatley. My finding that LeBlanc spoke no such words on that occasion disposes of them. Similarly, my finding that Wilkins' telling the employees he would reopen Baton Rouge was not a threat disposes of an allegation that Section 8(a)(X) was also violated in the same manner when LeBlanc told the employees Wilkins was a man of his word. However, two other 8(a)(1) allegations growing out of LeBlanc's activities pose more difficult problems. The first is that LeBlanc "solicited employee complaints" in the course of his meetings with employees. The second is that LeBlanc's November 6 handout stated "that the Union had kept the Custom Craft election tied up for three years and the company could not by law give any wage increases during that time." In addition, the complaint alleges that Wilkins, Gyan, and Baker solicited employee complaints and that Wilkins and Baker interrogated employees during the October 13-14 meetings, all in violation of Section 8(a)(1) of the Act. I turn first to the allegations which involve solicitation of grievances. The controlling principle has been set forth by the Board in Uarco Incorporated, 216 NLRB 1 (1974), thus: [I]t is not the solicitation of grievances itself that is coercive and violative of Section 8(aXl1), but the promise to correct grievances or a concurrent interroga- tion or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer. [Footnote omitted.] Wilkins, Gyan, Baker, and LeBlanc all said in their respective meetings that they could not promise the employees anything in the context of asking them to state and discuss their concerns. However, LeBlanc said some- thing which Wilkins, Gyan, and Baker did not say. He said, in effect, that he preferred returning to Tiptonville periodically to deal with their problems himself rather than returning for the purpose of dealing with the Union. This statement was an implied promise to correct their grievanc- es if they voted against the Union. I find, therefore, Respondent violated Section 8(aX)( 1) of the Act by soliciting employee grievances when LeBlanc made it. In their meetings Wilkins, Gyan, and Baker said nothing similar to LeBlanc's statement. Their explicit remarks to the contrary effectively rebut any inference that they were making such a promise. Since none of them either explicitly or implicitly promised to correct the employees' grievances, the question of whether they violated the Act by soliciting grievances turns on whether there was, in the October 13- 14 meetings, "a concurrent interrogation ... about union sympathies that [was] unlawful." Only two of the seven witnesses called by the General Counsel to testify about these meetings indicated that any part of the three executives' presentation took the form of a question. Wayne Cranford and David Alexander each said that, early in the meeting he attended, a question was put as to why the employees wanted a union. This, they testified, was in the context of asking the employees to list their problems so that they could be discussed. In that format, those were clearly rhetorical questions only and not a concurrent interrogation, coercive in and of itself, as that phrase is used in Uarco, supra Neither of the cases cited by the General Counsel in his brief in support of the opposite view is apposite. In G. R 1. Corporation and Its Division, 216 NLRB 34 (1975), a supervisor harassed an employee by telling her she could not give him one good reason why the employer needed a union. In Gates Air Conditioning, Inc., 199 NLRB 1101 (1972), a supervisor intended to elicit information about an employee's union activities when he told the employee two others had named him in a conversation, thereby impelling the employee to deny any union sympathies. (Both of these cases stand for the proposition that coercive "interrogation" need not be couched in question form. The proposition is a sound one. It simply has no application here.) Since Wilkins, Gyan, and Baker did not promise to correct the grievances they solicited and did not coercively interrogate employees during the October 13-14 meetings, I find Respondent did not violate Section 8(aXI) in either manner on those occasions. The General Counsel contends that the following sentence in the fourth paragraph of the excerpt from LeBlanc's November 6 handout set forth above violates Section 8(aXI) because it contains a clear misstatement of the law: The URW kept the case tied up in Court for threeyears and the company could not by law give any wage increases during that time. [Emphasis LeBlanc's.] The effect, the General Counsel argues, was an impression "that if for some reason the Union was selected by the employees and the case became tied up in Court, as it did in Custom Craft . . . the Employer would not be able by law to grant any wage increases during the pendency of the case." Respondent, on the other hand, argues the "state- ment was truthful, and thereby non-threatening and privileged under Section 8(c) of the NLRA and the First Amendment to the Constitution. Alternatively, if the statement was factually or legally incorrect, the law does not per se make such a statement a violation of Section 8(aX l)." The Union was selected as the bargaining agent of Custom Craft's production and maintenance employees in an election held in Case 26-RC-4210 on May 12, 1972. The certification issued on September 18, 1972, concurrent with the Board's decision adopting the Regional Director's recommendation that Custom Craft's objections be over- ruled. Custom Craft elected to test the certification. Consequently, on July 9, 1973, in Case 26-CA-4505, the Board granted the General Counsel's motion for summary judgment and ordered Custom Craft to bargain with the Union. The United States Court of Appeals for the Sixth Circuit enforced the Board's order in the spring of 1974. Shortly thereafter Custom Craft, by letter, asked the Union to agree to an immediate raise for unit employees without prejudice to either side in the upcoming negotiations. The 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union declined, except for raises required by an increase in the Federal minimum wage. Bargaining began sometime thereafter. No agreement was ever reached. In the spring of 1975 a decertification petition was filed in Case 26-RD- 287. The election was held on June 13, 1975. A majority of unit employees voted to oust the Union. The certificate issued on June 23, 1975. There is no evidence in the record, other than the hearsay statements contained in LeBlanc's November 6 handout, on which findings of fact about the Custom Craft strike can be based. Respondent's first defense can be quickly disposed of. The statement was not factually true. Custom Craft's duty to bargain with the Union was kept tied up in court, not for 3 years, but for something going on 2 years, not by the URW, but by Custom Craft. The fact that, as the negotiations developed, Custom Craft was prevented by the law relating to changes in conditions during negotia- tions, absent agreement or impasse, from granting wage increases for the 3 years between election and decertifica- tion does not prevent the overall statement from being factually inaccurate. It does, however, preclude a finding that it contained a misstatement of the law so egregious that the General Counsel's per se approach is the proper basis for resolving this issue.5 Rather, the question to be decided is whether the statement taken in the context of the handout in which it appears as well as the broader context of the discussions which led up to the handout is so misleading that it violated employees' Section 7 rights. I think not. Taken in context, the statement amounts to an assertion the Union was at fault because Custom Craft employees did not receive a raise during the 3 years which elapsed between the vote which got the Union in at Custom Craft and the vote that got it out. That those employees did not get a raise is factually correct. Who was to blame, however, is a matter of opinion. There is much to be said for Respondent's assertion that the fault all belonged to the Union. If it had agreed to Custom Craft's prenegotiations proposal for an immediate raise, the employees would have gotten a raise. On the other hand, faulting the Union at this point for a bargaining stance it took under conditions not revealed in this record is futile. At least part, and possibly all, of the blame might well be placed at Custom Craft's door if that issue were ever fully litigated. The answer to that question does not matter here. What is important in resolving the issue presented in this case is that the question of fault was one about which reasonable men might differ. Respondent expressed its opinion, albeit in a sentence which gave the wrong impression about which party had carried the duty to bargain issue to court. The Union had an opportunity to respond after the statement was made and before the employees went to the polls. Burkhardt availed himself of that opportunity to express the Union's contrary opinion in a meaningful way before a significant number of Respondent's employees, thereby I In any event, the cases cited by the General Counsel in support of his argument-Sinclair & Rush, Inc., 185 NLRB 25 (1970); The May Department Stores Compan) d/b/a Famous-Barr Company, 174 NLRB 770 (1969); and Ring Metals Company, 198 NLRB 1020 (1972)-are clearly inapposite. They stand for the proposition that it is a violation of Sec. 8(aX1) to announce a withholding of benefits on the ground that unfair labor practice charges have been filed. The Union did, in fact, file a number of charges against nullifying the coercive effect, if any, of the statement. I find, therefore, that the inclusion of the sentence com- plained of by the General Counsel in the material which Respondent distributed to its employees on November 6 did not violate Section 8(a)(l) of the Act. D. Other 8(a)(1) Allegations 1. Joseph Gyan and William Baker In addition to their role in the October 13-14 meetings with employees already discussed above, Joseph Gyan and William Baker are each charged in the complaint with another 8(a)(l) violation. There is no dispute about what happened in either incident. Gyan walked through the plant and chatted with employees on this visit to Tiptonville. In a conversation with Danny Calton and David Alexander, he explained that he was trying to talk to all of the men so that he could find out if they had any complaints. Calton said the foremen did not set a good example for the employees, citing the case of a foreman who had come to work drunk. Calton named the foreman. Gyan said he would pass the information along to Wilkins. He subsequently did so. Gyan's response to Calton's complaint contained an implied promise that something would be done about it. For the reasons already set forth with respect to the meetings LeBlanc held with employees as contrasted with those held by Wilkins, Gyan, and Baker, I find that Gyan's response violated Section 8(aX)( I) of the Act. Baker also walked around the plant one evening, greeting his friends. He shook hands with Steve Bargery. Bargery introduced him to Jackie Brewer, a new employee who had not worked there when Baker was plant manager. Baker glanced at the union buttons each was wearing and asked Bargery, "Why are you wearing the buttons anyway?" Bargery laughed and said, "I don't know. I'm wearing them because everybody else is." Baker shook his head and said, "I'll be damned if ya'1 can't fuck up a wet dream." Bargery and Brewer laughed. Baker said he would see them and walked away. Baker's query, addressed to Bargery, is the basis of an allegation that Baker interrogated an employee. I find no violation. The whole exchange was a joke which did not rise to the level of 8(aX I) coercion. 2. Wayne Birch Wayne Birch, the plant manager, was not present when Wilkins spoke to the employees on October 13-14. Shortly after the session Wayne Cranford attended, Birch ap- proached Cranford in the laboratory and asked Cranford what he thought of Wilkins. Cranford asked Birch if he really wanted to know, and Birch said yes. Cranford said, "Well, I think he shit and fell back in it."6 Custom Craft in the 3-year period alluded to in the statement. However, "tied up in Court" cannot be twisted into a reference to that aspect of Custom Craft's stormy association with the Rubber Workers Union by any semantic sleight of hand. 6 This is the only point as to which Birch's version differs from Cranford's. Birch said that Cranford said Wilkins "ripped his pants." I credit Cranford over Birch as to this unimportant detail. 446 ETHYL CORPORATION Birch said, "What do you mean by that?" Cranford said, "Well, as it was standing, in my opinion, 50 percent of the men that was in the meeting would have voted against the Union. But then he come in and acted the way he did, and they'll vote for it now. I know I will." Birch said, "Are you going to vote for it because you're mad, or did he change your mind?" Cranford said, "Well, a man in his position should ought to know how to handle men better than coming in and shouting and cussing and doing like he done. I know I'll vote for it now just to spite him." On another occasion Birch was in the foremen's office in the plant with Billy Nunnery, a shift foreman, when John Moore came in. During the course of a conversation about other matters, Birch asked Moore how he felt about the Union. Before Moore could reply, Birch said, "Well, I don't want to put you on a spot. I don't know how you're going to vote and I don't want to know." Moore said he was still undecided. Each of these incidents is alleged as an illegal interroga- tion under Section 8(a)(l). I find neither to be a violation. In the latter, any improper impression Birch may have created by asking Moore how he felt was immediately corrected by his hasty disavowal of any intention of interrogating Moore. In the former, Birch's initial question to Cranford was not an attempt to find out how Cranford felt about the Union. Cranford turned the conversation in that direction. The course which it took thereafter obvious- ly did not restrain or coerce Cranford in any degree. More importantly, applying the correct standard for judging the legality of words spoken under Section 8(a)(1), I find that what Birch said would not reasonably have restrained or coerced any employee under the same circumstances. 3. Ed Williamson Ed Williamson is plant superintendent at Tiptonville. One evening shortly before the election, when William Baker was in the plant, Williamson approached Danny Calton and David Alexander where they were working. He looked at their union buttons and commented that he could see they were for the Union. He asked Calton and Alexander what they thought the Union could do for them. Alexander replied that he thought the Union could get them better benefits and give them job security. William- son said he just wanted to be sure the employees knew what they were doing by voting the Union in. At about this point Baker joined the group. Alexander repeated for Baker's benefit his contention, based on employees' past experiences first with Baker and then with Birch as plant managers, that they had no say in what benefits they were to receive. Baker said, "Some of the ideas the guys have been telling me are kind of ridiculous. One guy even said something about a dental plan. If Ethyl had to pay you dental benefits, it would have to pay the same thing to every Ethyl employee. That would run to millions of dollars." Alexander said, "Well, at some of my Union meetings I understood that some of the Ethyl plants had paid insurance, paid retirement. How come we don't have that?" Baker said, "I don't know about the other Ethyl plants." Wayne Cranford joined the group sometime during Alexander's discussion of dental plans with Baker. Williamson's contribution to this conversation is alleged as an illegal interrogation. Williamson is a friendly supervisor. His question to Calton and Alexander was courteous and low keyed, not rude or profane. Neverthe- less, it was an effort, initiated by Williamson, to ascertain Calton's and Alexander's reasons for favoring the Union thus necessarily interfering with their expression of the free choice guaranteed them by the Act. I find, therefore, Respondent violated Section 8(a)(X) by interrogating employees when Williamson spoke to Calton and Alexan- der on this occasion. Quemnetco, Inc., a subsidiary of RSR Corporation, 223 NLRB 470 (1976). 4. Jack Greer Jack Greer is production supervisor at Tiptonville. Sometime in September he stopped at a press where Wayne Cranford was working and said to Cranford, "Can I ask you a question?" Cranford said, "Yes, sir." Greer said, "I don't see a Union button on you. Does that mean that you're for or against the Union?" Cranford said it was his opinion that unions are all right in the North but no good in the South because there union shops are barred by right- to-work laws. He added, "I'm just not that strong for it." Greer said, "All right," and walked away. This conversation is also alleged as an illegal interroga- tion. I so find, for the reason set forth above with respect to Williamson's interrogation of Calton and Alexander. Quemetco, supra. 5. Billy Nunnery Soon after lunch on October 14, Wilkins met with all the supervisors of the Tiptonville plant, from Birch through Williamson and Greer down to and including the shift foremen. Wilkins' message to the supervisors was twofold. He pointed out that the plant would continue regardless of the outcome of the election and instructed them to take a hands-off attitude in the organizing campaign. He told them he understood how the campaign was affecting production adversely, assured them this would not be held against them, and asked their best efforts to get the plant back on the right track. In the course of a discussion about Respondent's plans for the plant, including the possibility of reopening Baton Rouge and the long term prospect for enough business to keep three lines going, Billy Nunnery, one of the shift foremen, asked Wilkins if he meant what he had told the employees about a possible cutback at Tiptonville in the event the Union came in. Wilkins' reply was an emphatic yes. What Nunnery said when he relayed this reply to employees later that day is the basis for the last 8(aX)() allegation in the complaint. Danny Calton and David Alexander testified about a conversation in the foremen's office. Nunnery could only recall a conversation with Calton and Alexander among a group of employees which took place during a beer party which started in one tavern and ended in another. He did, he testified, tell employees that Wilkins had meant what he had said. The employees conceded that the beer party had taken place but insisted on the conversation in the foremen's office also. The terms in which Nunnery couched Wilkins' message are also a 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of dispute. The testimony over this allegation comprises the only other credibility conflict of any significance in the record. In resolving it, I credit the General Counsel's witnesses over Nunnery for two reasons. Nunnery admitted that he had "tried to explain" to a group of employees who asked to talk to him man to man about the union situation at the plant "the same thing that Mr. Wilkins had explained to me, why he would be forced to open the Baton Rouge plant." Wilkins admitted that he talked tough and used much profanity in all six of the meetings he held on October 13-14. Not long after their shift's meeting with Wilkins, Gyan, and Baker, Calton and Alexander went into the foremen's office to get some tools. Nunnery was there. Calton and Alexander made some joking references to Wilkins' statement about cutting down production at Tiptonville if the Union came in. Nunnery, like the employees, had translated the words Wilkins had actually used into a statement that he would close down one line. Nunnery indicated to Calton and Alexander that the subject they were making light of was serious by telling them he had just asked Wilkins in a supervisors' meeting if he had meant what he had said to the employees. Wilkins' reply, Nunnery tpld the two employees, had been, "Those sons- of-bitches think I'm kidding. It's not a threat, it's a promise. I will shut one line down if the Union comes in." For the reasons already set forth in finding that Wilkins' remarks directly to the employees about cutting back production at Tiptonville in the event the Union came in did not violate the Act, I find Respondent did not violate Section 8(a)(1) of the Act by threatening employees with loss of jobs if they voted for a union when Nunnerl spoke these words on this occasion. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Ethyl Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By soliciting employee grievances and by interrogat- ing employees about their union sympathies and desires, Respondent has violated Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegations of the complaint that Respondent violated Section 8(aX3) of the Act have not been sustained. 6. The allegations of the complaint that Respondent violated Section 8(aXI) of the Act by threatening employ- ees, by the activities of Ray Wilkins, William Baker, and Wayne Birch, by the activity of Darryl LeBlanc in interrogating an employee about his union sympathies, and by stating that the Union had kept the Custom Craft election tied up for 3 years and the company could not by law give any wage increases during that time have not been sustained. [Recommended Order omitted from publication.] 448