Eagle Comtronics, Inc.

EAGLE COMTRONICS, INC. Eagle Comtronics, Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC. Case 3-CA-9436 August 18, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS ZIMMERMAN AND HUNTER On April 9, 1981, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, 2 and conclusions 3 of the Administrative Law Judge, as modified herein, and to adopt her recom- mended Order, as modified. I The General Counsel has excepted to the Administrative Law Judge's failure to correct the record as allegedly requested in the General Counsel's motion to correct the record. In the absence of opposition thereto, and because such corrections do not affect the outcome of the instant proceeding, we grant the General Counsel's motion and, accord- ingly, the record stands corrected. 2 The General Counsel and the Union have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. 3 In agreeing with the Administrative Law Judge that Respondent did not unlawfully threaten employees with loss of their Christmas bonus, we rely on her credibility resolutions, and therefore find it unnecessary to pass on her further comment that Respondent should not be held ac- countable for speech "which at most created a minor ambiguity." We also adopt the Administrative Law Judge's findings and conclusions con- cerning the "vague" and "murky" testimony about the alleged promise of benefits. However, we do not adopt her observation that "If anything, such comments Ion benefits] fall into the nature of harmless campaign rhetoric." We agree with the Administrative Law Judge's conclusion that Re- spondent's conduct of the mock election violated the Act under the standards of Struksnes Construction Co.. Inc., 165 NLRB 1062 (1967). In so doing, we disagree with her conclusion that Respondent did not create a coercive atmosphere. Rather, we note that Respondent had committed several unfair labor practices prior to the mock election, and some of its supervisory and managerial personnel were present during much of the voting. Further, we do not condone the use of copies of the Board's sample ballot in a mock election. Although we agree with the Administrative Law Judge's conclusion that a bargaining order is not warranted here, we do not rely on her statement that the passage of 2 years between the violations and the pro- spective holding of a new election mitigated the coercive impact of sev- eral of Respondent's unfair labor practices. Nor do we rely on her con- clusion that the Charging Party's withdrawal of its representation petition meant that the mock election could not have served to undermine the Union's majority status. 263 NLRB No. 70 During preelection meetings with employees, Respondent's labor relations manager, Edward Heinrich, discussed, inter alia, the status of eco- nomic strikers. Heinrich's testimony indicated that he told employees that, in the case of an economic strike, strikers "could be replaced with applications on file." 4 Although finding that Respondent did not intend to threaten employees by discussing the replace- ment of economic strikers, the Administrative Law Judge nonetheless concluded that Respondent thereby violated Section 8(a)(1) of the Act. The Administrative Law Judge observed that, while Respondent had mentioned its right to replace eco- nomic strikers, it had failed to inform its employees of their rights to reinstatement as vacancies became available. According to the Administrative Law Judge, this failure to assure employees of their rights might lead employees to believe erroneously that their jobs would be permanently forfeited. The Administrative Law Judge therefore concluded that the failure to advise the employees fully of their rights as economic strikers violated the Act. We do not agree. The issue posed in this case is the degree of detail required of an employer who informs em- ployees that they are subject to replacement in the event of an economic strike. It is well established that, when employees engage in an economic strike, they may be permanently replaced. 5 Of course, "permanent replacement" does not mean that a striking employee is deprived of all rights. Specifically, striking employees retain the right to make unconditional offers of reinstatement, to be reinstated upon such offers if positions are availa- ble, and to be placed on a preferential hiring list upon such offers if positions are not available at the time of the offer.6 However, the Board has long held that an employer does not violate the Act by truthfully informing employees that they are sub- ject to permanent replacement in the event of an economic strike. The Board has held that such comments do not constitute impermissible threats under Section 8(a)(l), or objectionable conduct in an election.7 Unless the statement may be fairly un- 4 The Administrative Law Judge found, and we agree, that testimony by an employee thaet Heinrich told employees that "if the Union got in . . . there was a certain period of time we'd be allowed to go on strike, and after that time there was a number of people that needed jobs, and any- time his door was open to them," was entirely consistent with Heinrich's version of events as recounted above. Accordingly. we have accepted Heinrich's testimony about what he said as accurately reflecting his com- ments to employees about some of the possible consequences of strikes. I The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1969). Cf. N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375 (1967) Laidlaw, supra, 171 NLRB at 1369-70; Fleetwood Trailer, supra Mvississippi Extended Care Center, Inc.. d/b/a Care Inc., Colliersville, 202 NLRB 1065 (1973). 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derstood as a threat of reprisal against employees or is explicitly coupled with such threats, it is pro- tected by Section 8(c) of the Act. Therefore, we conclude that an employer may address the subject of striker replacement without fully detailing the protections enumerated in Laidlaw, so long as it does not threaten that, as a result of a strike, em- ployees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw. To hold otherwise would place an unwarranted burden on an employer to explicate all the possible consequences of being an economic striker. This we shall not do. As long as an employer's state- ments on job status after a strike are consistent with the law, they cannot be characterized as re- straining or coercing employees in the exercise of their rights under the Act.8 In the instant case, Respondent informed em- ployees only that they could be replaced by appli- cants on file. Such a statement, simply describing an employer's legal prerogative, does not contra- vene any Laidlaw rights, but, indeed, is entirely consistent with the law. Respondent was not re- quired to delineate more specific rights. According- ly, we reverse the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(1) by its statement in this regard. AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 4: "4. Respondent has violated Section 8(a)(1) of the Act by promising employees future benefits, that is, a clambake; by impliedly threatening a delay in the receipt of improved insurance benefits; and by conducting an unlawful poll to ascertain employees' union sentiments." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Eagle Com- tronics, Inc., Clay and Baldwinsville, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: a Care Inc., Colliersville. supra. The cases relied on by the Administra- tive Law Judge are not to the opposite, and are readily distinguishable from the instant case. In both George Webel d/b/a Webel Feed Mills a Pike Transit Company, 217 NLRB 815 (1975), and Hicks-Ponder Ca. A Division of Blue Bell., Inc., 186 NLRB 712 (1970), enfd. 458 F.2d 19 (5th Cir. 1972), the respondent went beyond informing the employees of the risk of being permanently replaced by telling them they would perma- nently lose their jobs. 1. Delete paragraph l(c) of the Administrative Law Judge's recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX No'rICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with, restrains, or coerces you with respect to these rights. WE WILL NOT promise you future benefits to forestall your union activities. WE WILL NOT impliedly threaten you with a delay in receiving insurance benefits. WE WILL NOT conduct unlawful polls of our employees to determine their union sympathies or desires. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in the National Labor Relations Act. EAGLE COMTRONICS, INC. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge: Upon a charge filed on November 19, 1979, by Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC (hereinafter the Union), a complaint was issued on Janu- ary 8, 1980, and reissued as amended on June 24, 1980. The amended complaint alleges that Respondent Eagle Comtronics, Inc., through its officers, violated Section 8(a)(1) of the National Labor Relations Act, as amended (the Act), and unlawfully refused to bargain with the Union. Respondent's timely answers denied any wrong- 516 EAGLE COMTRONICS, INC. doing. A hearing on this matter was held in Syracuse, New York, on January 5, 6, and 7, 1981. Upon the entire record in this proceeding, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. AS TO JURISDICTION The Business of Respondent Respondent, a New York corporation, is engaged in the manufacture, sale, and distribution of cable television components and related products at its plants located in Baldwinsville and Clay, New York. Annually, in the course and conduct of its business, Respondent pur- chases, transfers, and delivers to its Baldwinsville and Clay plants goods, products, and materials valued in excess of $50,000 which were transported to said plants directly from States other than the State of New York. I find that Respondent is an employer within the meaning of Section 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Issues The specific issues presented in this case are: A. Whether a majority of Respondent's employees designated the Union as their duly authorized collective- bargaining agent. B. Whether, subsequent to the Union's bargaining demand, Respondent impliedly threatened its employees with plant closure, a delay in the receipt of insurance benefits, and a reduction of other benefits; suggested they would be replaced by job applicants during a strike; promised them future benefits; and unlawfully polled them by conducting a mock election. C. Whether Respondent's commission of the unfair labor practices outlined above were so pervasive and egregious as to negate the possibility of a fair election and to warrant the issuance of a bargaining order. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Campaign Respondent's work force of 257 employees was distrib- uted between its Baldwinsville and Clay facilities in northern New York State. With one exception, the unfair labor practices described in the complaint were alleged to have occurred at the Clay plant. I I The complaint incorrectly alleged that the misconduct took place at the Baldwinsville, rather than the Clay, factory. At the hearing, I granted the General Counsel's motion to amend the complaint and correct this error. Baldwinsville employees did participate, however, in the mock election. See infra On May 19, 1979,2 eight employees, all of whom worked at the Clay facility, met with several union rep- resentatives to discuss organizing Respondent's employ- ees. On that occasion, the group received authorization cards and were instructed on the appropriate means to solicit signatures. Over the next several weeks, the employees distributed authorization cards to their coworkers and then returned signed cards to the union agents. By May 29, 129 execut- ed authorization cards were in the Union's possession. By June 4, 144 employees had signed cards. Of this total which the General Counsel offered into evidence, Re- spondent objected to only 3 cards signed by persons who it contended were no longer in its employ on the date the Union claimed a majority, and another 27 cards on the grounds that the signatures arguably were not genu- ine. After comparing the signatures on the challenged cards with business records bearing valid signatures of the employees in question, I authenticated and admitted into evidence all but four of the cards in this latter group.3 Even without the cards of the 7 challenged indi- viduals, I find that 137 other employees, a clear majority, signed valid single-purpose cards designating the Union as their representative for purposes of collective bargain- ing by June 4, 1979. 4 On that date, the Union requested recognition from Respondent both orally and in writing for a unit com- prised of all production and maintenance employees at both the Baldwinsville and Clay facilities. Shortly there- after, Respondent stipulated to a consent election under the Board's auspices which was scheduled for July 12. B. The Company's Response Between June 18 and July 12, in an effort to counter- act the Union's influence, Respondent embarked on a counteroffensive. At the outset, Company President Alan Devendorf and Labor Relations Manager Edward Hein- rich mapped out the basic strategy of its campaign with the advice of counsel. An early judgment was made not to involve low-level supervisory staff in their activity and a list of do's and don'ts was distributed to them. Ap- parently these admonitions were effective for no supervi- sor was accused of misconduct throughout the preelec- tion campaign. Respondent's antiunion campaign was two-pronged, consisting of mailings to the employees and a series of in- plant group meetings with assemblies of workers from each of the three shifts at the Clay factory. The format for each meeting was essentially the same: During the course of the shift, the employees would con- gregate at a cleared space at the end of a working area adjacent to the executive offices. Working from an out- line or sketchy notes which were reviewed in advance by counsel, Heinrich, as the principal spokesman, opened 2 Unless otherwise noted, all events occurred in 1979. 3 The propriety of proving the authenticity of union authorization cards in the manner indicated above has been approved by the Board in Hecks Inc., 166 NLRB 186 (1967). 4 The cards read: "I hereby accept membership in the ... Union of my own free will and do hereby designate said .. Union as my repre- sentative for purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment." 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings with prepared comments. Occasionally Deven- dorf would intercede with remarks of his own. A ques- tion-and-answer period followed. On occasion, the meet- ings concluded with employees clustered in small groups raising further questions with Devendorf or Heinrich. It was during these meetings, five or six in number," that the conduct occurred which the General Counsel al- leges was violative of Section 8(a)(l) of the Act. Twelve employees were called to present evidence in support of the Government's case-in-chief but their testimony left much to be desired. They did not describe the meetings fully and demonstrated little ability to recall precisely the contents or the context of the discussions at the meetings. All too frequently, the witnesses remembered only fragments of discussions, and seemed to suffer from an inability to distinguish their own assumptions and im- pressions from recollections of what management actual- ly said. With these infirmities in mind, the evidence bear- ing on the 13 allegations in the complaint is evaluated below. C. Alleged Threats of Plant Closure Three counts in the complaint concern alleged threats of plant closure. The first of these, set forth in paragraph VI(a), attributes to Devendorf a threat purportedly made to first-shift employees that, since the Company was young, it would probably go under if the Union pre- vailed. The General Counsel adduced evidence from six em- ployees assigned to the first shift, five of whom offered no testimony which could be held to substantiate the above allegation. Indeed, Cecilia Gallagher, a member of the Union's organizing committee, testified in a manner which repudiated the charge of wrongdoing by Re- spondent. She stated that, when employees asked Deven- dorf if the plant might close, he responded on more than one occasion that "he certainly hoped not." Other first- shift employees, Diane Shortsleeve and Arlene Mourey, could recall no statements by company officials bearing on plant closure. 6 Similarly, second-shift employees Dawn Morgan and Shirley Mouk agreed, after reviewing their preheating affidavits, that management representa- tives made no statements about possibly closing the plant should the Union succeed. 7 In fact, far from threatening I Although the record is somewhat ambiguous in this regard, it ap- pears that at least three meetings with each shift were conducted during the preelection period on June 18 and July 5 and 10. Another meeting was held on July I 1, the day after the Union withdrew its petition for an election. The last gathering may have been when employees participated in the mock election on July 12. However, some employees had the im- pression that the meetings were far more numerous than the five or six (per shift) which Respondent admitted. 6 The remaining employees clearly identified as having worked on the first shift, Charlotte Johnston and Patricia McClellan, were not ques- tioned about threatened plant closure. Although Daryl Rathbun was as- signed to the first shift throughout most of the preelection period, his tes- timony is discussed in connection with par. VI(g) of the complaint since he offered evidence which closely tracked the threatening language al- leged therein. I Although par. Vl(a) of the complaint refers solely to a threat made to first-shift employees, I have considered testimony elicited from wit- neases assigned to other shifts since that testimony was closely related to the merits of the allegation and the issue was fully litigated. I have fol- lowed the same practice with respect to the other allegations in the com- plaint. See Justak Brothers and Company, Inc., 253 NLRB 1054 (1981). employees with plant closure, another second-shift em- ployee, Monica Hart, elicited a guarantee from manage- ment that the Company would take no reprisals against employees engaged in union activity. Thus, she stated that, after Heinrich assured assembled employees that they would be protected if they opposed the Union, she asked whether those who favored the Union would be similarly safeguarded. Heinrich responded that no one would be fired for supporting the Union, that "it was il- legal to be fired for Union activity." Given the above evidence, there is no basis for finding that Respondent violated Section 8(a)(1) of the Act by threatening first- or second-shift employees with plant closure. According- ly, I conclude that paragraph VI(a) of the complaint should be dismissed. Paragraph Vl(g) of the complaint further avers that Heinrich impliedly threatened third-shift employees that the plant would shut down and be moved to another State if the Union won the election. This allegation ap- parently stemmed from the testimony of former employ- ee Daryl Rathbun, who asserted that Heinrich said "they could shut the doors . . . but they would not be able to open another plant in New York State, they would have to move out of state." However, Rathbun was confused about the dates he worked on various shifts. The record shows that Rath- bun was assigned to the first shift for 6 weeks following his date of hire on May 23, and thereafter was trans- ferred to the second shift for at least the balance of the preelection period. Thus, he was in no position to attest to any speeches made to the third shift. More significant- ly, no other witness, regardless of shift, corroborated Rathbun's testimony that the Company threatened to move to another State. What Rathbun may have picked up were portions of a dialogue which ensued when an employee asked if the Company had a plant in Virginia. Devendorf replied that the Company previously owned a plant in Virginia and was working on the possible pur- chase of land in that State. After making this statement, he added that the Company had just made a substantial commitment of funds to purchase and renovate the Clay plant. The import of Devendorf's comments had to be obvious: Respondent would hardly shut its doors after having recently made a significant investment in its present site. I do not believe Rathbun was engaged in purposeful misrepresentation; rather, his testimony exemplifies a weakness common to the accounts of many witnesses in this case. He heard only partial conversations and con- verted the fears and rumors which were abounding in the plant into a false reality. Paragraph VI(g) also imputes to Heinrich a threat os- tensibly made to third-shift employees to close the plant and reopen with new employees. Third-shift employees Annette Wallen and Virginia Richardson" testified in support of this allegation, but discrepancies in their accounts cast serious doubt on the accuracy of their recollections. ' Respondent disbanded its third shift in November 1979, offering all the employees on that shift the option of transferring to other shifts. 518 EAGLE COMTRONICS, INC. According to Wallen, Devendorf asserted during a meeting in the first week of June that "he would let ev- erybody go and start all over again . .. they had enough applications to do it, three, four hundred." How- ever, the allegation in the complaint attributes the threat to Heinrich, not to Devendorf, and there were no com- pany meetings during the first week of June. Moreover, no reference to such a threat appears in Wallen's pre- hearing statement although she was interviewed by a Board investigator at a time when the events in question should have been much fresher in mind than by the date of the hearing. Richardson testified with some hesitation that, at a meeting at which employees were shown drawings of competitive products produced in Taiwan, Heinrich said "something to the effect that if the Union got in, they had enough applications on file, they had over 1500 ap- plications that they could close the plant." On cross-ex- amination, Richardson appeared even more uncertain than she had been during her direct testimony. Repeated- ly, she responded to efforts to prod her recollection by answering, "I can't remember...." Like Wallen, she acknowledged an omission in her prehearing affidavit: It made no mention of plant closure in connection with the Union. Given both Wallen's and Richardson's inability to recali with any specificity the contents of management's alleged threats and the lack of uniformity between their accounts, their testimony cannot be relied upon to sus- tain a violation of the Act. Moreover, viewing the record as a whole, I find it highly improbable that man- agement would exercise prudence and restraint while ad- dressing the first and second shifts and then throw cau- tion to the wind by threatening the third shift with plant closure. Therefore, I conclude that paragraphs VI(g) and (h) of the complaint are unsupported and should be dis- missed. D. Threats of Job Loss Paragraph VI(f) of the complaint accuses Respondent of threatening to replace second-shift employees with ap- plicants on file in order to forestall and discourage their union activities. The only second-shift employee to have any recollec- tion of management statements bearing on the replace- ment of workers was Dawn Morgan.9 However, her tes- timony deviated substantially from the language set forth in the complaint for she recalled that, when management alluded to hiring new applicants, it was in connection with a discussion of replacing striking employees. Specifically, Morgan related, ". . . there was a time when he said . . . if a union got in . . . there was a cer- tain period of time we'd be allowed to go on strike, and after that time there was a number of people that needed jobs, and anytime his door was open to them." First-shift employees Gallagher and Mourey also re- membered that references to hiring job applicants arose in the context of a discussion concerning strikes. Gal- lagher, in particular, testified that, when an employee asked whether the Company could hire other people in 9 Other second-shift employees, Hart and Mouk, made no discussion bearing on replacing employees with applicants on file. the event of a strike, management's response was that there were occasions when replacements could be hired, but "he didn't think it would come to that." Heinrich's testimony is consistent with the recollec- tions of the Government's witnesses. He explained, ". .. we talked about economic strikers. And that question came up about economic strikers. And at that point I did very clearly state that in the case of an economic strike . . .present employees could be replaced with applica- tions on file." I am convinced that Heinrich did not intend to convey a threat in discussing the replacement of economic strik- ers. He made no reference to the inevitability of a strike, did not infer in any way that the Company would use its power to bring about such a result, and did not affirma- tively state that striking employees would be permanent- ly replaced. On the other hand, he made no effort to advise the assembled workers of their right to reinstate- ment as vacancies arose, in accordance with applicable law. See, e.g., George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815, 818 (1975); Hicks Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712, 726 (1970), affd. 458 F.2d 19 (5th Cir. 1972). Without such assurances, employees might well have been led to believe that if a strike occurred their jobs would be for- feited permanently. Therefore, notwithstanding the inten- tions of Respondent's officials, I conclude that the failure to fully advise employees as to their rights in the event of an economic strike violated Section 8(a)(l) of the Act. E. Threats To Withhold Benefits 1. The Christmas bonus Three allegations in the complaint concern purported threats by Respondent to reduce or postpone employee benefits to forestall or discourage their union activities. The first of these, contained in paragraph VI(b), accuses Devendorf of threatening first- and third-shift employees with a loss of benefits due to legal fees the Company had to divert to counteract union activities. The General Counsel's witnesses' ability to recall what management may have said with reference to the above allegation was singularly flawed. For example, Mourey's hazy recollection was that Devendorf said something "about hiring lawyers and that the lawyers are paid out of the Company profits, and the Christmas bonus also came out of the Company profits." Hart also testified that "somebody made a statement ... that legal fees were coming out of the Company's profits." Gallagher added that, after employees divided into small groups at one of the meetings, Devendorf stated that "it would cost a lot of money for lawyers, and they have to have lawyers, these aren't his exact words, but he said some- thing to this effect; came out of the profit of the Compa- ny and that is where our Christmas bonus came from, too."1 0 Devendorf attempted to fill in the gaps created O1 Neither of the two third-shift employees who served as witnesses in this case mentioned any linkage between legal fees and a Christmas bonus reduction 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the witnesses' faulty memories. Devendorf explained that he and Heinrich were joined by Respondent's coun- sel at group meetings where he explained that all benefits were derived from the profits an organization makes; that, in addition to paying legal fees related to the union campaign, the Company also was involved in two signifi- cant lawsuits which could affect its fortunes. During the course of this meeting an employee asked counsel what his hourly fees were. Beyond this, Devendorf adamantly denied making any statement either expressly or by im- plication that the Christmas bonus would be reduced by virtue of legal fees arising out of contesting the Union. Even taking the employees' statements alone, there is insufficient evidence to warrant a finding that Devendorf unlawfully threatened the work force with a loss of benefits. I find it a strained interpretation to read into any of the testimony reviewed above a threat to do away with the Christmas bonus. Devendorfs comments were merely factual statements, the truth of which were beyond dispute. It does a disservice to Respondent's em- ployees to suggest that they were incapable of assessing for themselves the validity of their employer's remarks; but if some persons chose to see sinister implications in the speech, which at worst created a minor ambiguity, Respondent should not be held accountable. 2. The minimum wage Paragraph VI(e) of the complaint charges Respondent with impliedly threatening a reduction in wages by tell- ing its employees that the minimum wage would be used as a base from which the Company would start negotia- tions. Two employees, Gallagher and Mourey, offered rela- tively consistent testimony as to this allegation. Both of them related, in essence, that employees asked the Com- pany's officials whether they would be put back to mini- mum wage. Initially, Gallagher recalled that Heinrich said employees could lose instead of gain during negotia- tions. After reviewing her prehearing affidavit, she added that Heinrich denied that they would be put back to minimum wage while negotiations were going on, but that everything was negotiable. Mourey was more pre- cise. She testified that, in addressing a question, Re- spondent's counsel explained that "no one actually goes back to minimum wage, it was just a starting point for negotiations." She specifically recalled that company representatives stated that, as a result of negotiations, employees could wind up with more, the same, or less. Here, too, Heinrich and Devendorf were in a position to give a more lucid picture of the discussions involving the minimum wage. " Devendorf explained, " I do not mean to imply that the employees were less credible wit- nesses than were management officials, only that their recollection of events seemed more severely impaired. This may be understandable con- sidering the workers' apparent naivete about collective bargaining, the fact that many of the allegedly threatening remarks were in response to individual questions posed by employees at rather large assemblies, and that the witnesses were testifying about circumstances which occurred almost 2 years prior to the instant hearing. In contrast, even taking into account a tendency to present one's testimony in the best light, the com- pany officials were bound to have a better recollection of these meetings since they prepared for each one, reviewed their remarks with counsel .. . the question came up about the negotiation process. A number of our people have never been involved with the Union. We tried to explain what some of the processes were that you would go through. And one of those was what happened at the table after . . . the union were selected and cer- tified. .... In connection with the negotiating proc- ess . . . Mr. O'Hara [Respondent's counsel] talked about the status quo . . . that during that period of negotiations status quo would have to be held as far as any existing benefits . . . that the only con- straints that either party would have would be either State or Federal laws that would prohibit you from dropping below or going over. In other words, the minimum wage was then brought up as an example .... And it is possible that we would start our negotiations from that point ... He further recalled that, when a question arose relating to the minimum wage, counsel responded that "whatever they had now would not be affected in any way through the negotiations . . . that the negotiations could wind up where they could either get more or less money . . . or the same." The Board takes the position that a coercive statement, such as the one attributed to Respondent in paragraph VI(e) of the complaint, may or may not be objectionable depending on the context in which it was made. Where the statement can be construed as a threat that the em- ployer will unilaterally discontinue benefits prior to ne- gotiations, or adopt a repressive bargaining posture de- signed to force a reduction of existing benefits for pur- poses of penalizing the employees for choosing a collec- tive-bargaining representative, the Board will find a vio- lation. On the other hand, if the thrust of the employer's comment is that designation of the union will not auto- matically secure increases in wages and benefits and that any reduction in wages or benefits will occur only as a result of the normal give and take of collective bargain- ing, then no violation will be found. General Electric Company, 246 NLRB 1103 (1979); Madison Kipp Compa- ny, 240 NLRB 879 (1979); Plastronics, Inc., 233 NLRB 155 (1977); Coach and Equipment Sales Corp., 228 NLRB 440 (1977). Applying the standards articulated in these cases to the facts in the present matter, I find nothing in either the employees' or Respondent's accounts which would estab- lish an unfair labor practice. The most that can be said is that Respondent's agents advised the employees of the realities of the collective-bargaining process including the possibility that benefits could be lost as well as gained. But at no time did company officials suggest that they would adopt an intransigent posture during negotia- tions or threaten employees that their pay would be re- duced to the miminum wage. Indeed, they indicated that benefits might be realized as a result of the collective- bargaining process. By no stretch of the imagination can it be said on the basis of the remarks reported here that a violation of the Act occurred. beforehand, and discussed many of the same topics at three meetings for every one such meeting attended by the witnesses. 520 EAGLE COMTRONICS, INC. 3. Insurance benefits In paragraph VI(c), Heinrich also is accused of im- pliedly threatening employees with a delay in receiving insurance benefits. In support of this contention, first-shift employee Gal- lagher testified briefly that Heinrich, referring to a piece of union literature he had in hand, told the employees that he was prevented from meeting with the insurance company as planned, "because of this Union nonsense." Second-shift employee Shirley Mouk also remembered that Heinrich referred to the cancellation of an insurance meeting caused by the Union's "bullshit." Another second-shift employee, Hart, recalled with greater clarity that, just after the Union withdrew from the election, Heinrich called another meeting and, obviously angered by a letter which the Union had mailed to all employees, yelled at the group that he had to cancel an insurance meeting which was designed to obtain better benefits for them. Heinrich conceded he was irritated on receiving a copy of the Union's parting salvo and spent the better part of the day with Devendorf and counsel discussing how to react to it. They agreed that a response should be made and consequently canceled a meeting which had been scheduled to select a new group health insurance plan. At meetings with each shift, Heinrich admitted that, out of vexation with the union literature, he told the employees he was compelled to cancel an insurance meeting. However, he denied suggesting that benefits would be delayed thereby. Although Heinrich's outburst came after the Union had withdrawn its petition for an election, a respondent's postelection conduct may be unlawful nevertheless where it is designed to give it an advantage in the event of future union activity. See Raley's, Inc., 236 NLRB 971, 983 (1978). Here, even in the absence of an express assertion, em- ployees easily could construe Heinrich's comments to mean that insurance benefits would be postponed. Indeed, Heinrich surely understood the implications of his remark for why else would Heinrich have seen fit to announce the cancellation of the insurance meeting at three separate sessions with the employees. Respondent had a number of options less threatening than the one it chose: It could have addressed employees on the day fol- lowing the planned insurance meeting, refrained from re- ferring to that meeting, or simply have reassured the em- ployees that the insurance meeting soon would be re- scheduled. Instead, Respondent's remarks had the reason- ably foreseeable effect of transferring to the Union blame for a delay in arranging improved insurance benefits and conveying to the employees the disadvantages of contin- ued union support. At the very least, Respondent must be held liable for creating uncertainty and perhaps appre- hension where none needed to exist. By so doing, Re- spondent violated Section 8(aX)( of the Act. 4. Promise of benefits Paragraph Vl(d) alleges that Heinrich promised future benefits to first- and third-shift employees to forestall their union activities. The only concrete evidence bearing on this allegation concerns a clambake which Respondent held for its em- ployees in August, several months after the union cam- paign terminated. 2 Gallagher testified that, at one of the group meetings, an employee who apparently had heard rumors about a forthcoming clambake questioned Heinrich as to whether there was going to be such an event. He stated he could not respond because to do so would be considered a bribe. Gallagher further related that, after the union elec- tion was canceled, Heinrich announced that a clambake would be held and that it was indeed the surprise the employees had heard about. Hart recalled references to the clambake in a some- what different manner. She recalled that, prior to the mock election, a management official announced there would be a surprise but he could not announce what it was. Subsequently, Heinrich informed the employees that the surprise was a clambake for which each employee was to receive two free tickets valued at $34 for the pair. Heinrich denied that he made any statement, either ex- pressly or by implication, about the clambake during the campaign period. However, although he may not have specifically mentioned the word "clambake," several em- ployees did recollect some reference by management to a future event, the details of which the Company mysteri- ously could not reveal. Heinrich did concede that the de- cision to hold the clambake came during the course of the union campaign, a decision which he stated would have occurred regardless of the Union's presence on the scene. It is a time-honored principle that an employer con- fronted with a union organizational campaign is bound to proceed with the granting or withholding of benefits in the same manner he would have had the union not been present. See, e.g., Gold Circle Department Stores, etc., 207 NLRB 1005, 1014 (1973). Here, given Respondent's ac- knowledgment that its decision to go forward with the clambake was firm. it had no reason to postpone an- nouncing the event and allowing it to linger as a sur- prise, unless it wished to present the Union as an obstacle preventing the employees' realization of benefits. This is precisely what the law proscribes and, therefore, Re- spondent's allusions to a surprise constitute as implied promise of a future benefit in violation of Section 8(aX1). 5. The mock election The last allegation of the complaint set forth in para- gragh VI(i) charges Respondent with unlawfully polling its employees by means of a mock election. On July 9, members of the organizing committee ad- vised the Union's business agent that Respondent's cam- paign had seriously undermined the employees' prounion sympathies and jeopardized its chances of winning the a Several employees offered very vague testimony that company offi- cials frequently would make statements such as their hands were tied, or that the Union could make promises while they could not. Annette Wallen referred to a conversation in which management mentioned "a package deal" which could not be explained to the employees. Such evi- dence is too murky and generalized to prove that unlawful promises of benefits were made. If anything, such comments fall into the realm of harmless campaign rhetoric 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election scheduled for July 12. The following day, July 10, the Union formally withdrew its petition for the elec- tion. On the same date, management relayed the informa- tion to its employees and decided to go forward with mock elections on July 12. The evidence surrounding the conduct of these elec- tions was abundant. Employees from all three shifts at the Clay facility and from the Baldwinsville plant were permitted to participate on a noncompulsory basis. Em- ployees from each shift were selected to play the roles of official observers at the polls;13 a ballot box was con- structed by Devendorf and set upon a table in the area of the plant where the group meetings had been conducted. The ballot provided to each voter was an exact repro- duction of the Board's notice of election; that is, it was imprinted with the words "National Labor Relations Board" at the head of the paper, over which the word "Sample" was stamped in large letters. Empty squares la- beled "yes" or "no" appeared midway down the sheet which was otherwise blank. As ballots were handed out, the individual's name was checked against the Excelsior list of eligible employees. 14 Little effort was made by the employees or the Company to ensure the secrecy of the balloting. Further, Devendorf and Heinrich were present during much of the voting, sometimes standing nearby or leaning against a wall approximately 6 feet away from the ballot box, or on other occasions wandering through the voting area on the way to and from their offices. The results of the election, a lopsided 186 to 8 against the Union, were posted the next day. The Board has ruled in Struksnes Construction Co., Inc., 165 NLRB 1062 (1967), that the polling of employ- ees is lawful as long as the following standards are ob- served: (I) the purpose of the poll is to determine the truth of a union's claim of majority; (2) this purpose is communicated to the employees; (3) assurances against reprisals are given; (4) balloting is secret; and (5) the em- ployer has not engaged in unfair labor practices or other- wise created a coercive atmosphere. Contrary to Respondent's assumption, the fact that the poll of its employees was conducted after the election petition was withdrawn does not insulate it from a duty to comply with the dictates of Struksnes. See Helena Laboratories Corporation, 228 NLRB 294 (1977). In evalu- ating the manner in which this poll was conducted, I conclude that Respondent did not comply with the Struksnes criteria. At the outset, Respondent contends that Struksnes is inapplicable to an election which is prompted by em- ployee requests and is employee-conducted. However, Respondent's prepared outline listing the points which were to be raised at the July 10 meeting has a notation that the employees were to be asked if they desired a mock election. I infer from this that, if the employees had not initiated the proposal for such an election, Re- 13 On one shift, a supervisor acted as an observer. 14 Several witnesses who were members of the original organizing committee noted that at the time of the elections their names were crossed out on the Excelsior list. Although this is somewhat suspicious, there was no evidence that these employees were discriminated against in any way. Therefore, I decline to speculate as to why their names were so marked. spondent had every intention of doing so. More impor- tantly, Respondent cannot disclaim responsibility for and involvement in the conduct of the election when the record establishes that management arranged the polling place, fashioned the ballots, prepared the ballot box, pro- vided the Excelsior list, permitted employees time off from work to vote, and hovered nearby during the bal- loting. Thus, it was in large measure an employer-spon- sored poll and the way in which it was handled must be measured against the Struksnes standards. Accordingly, I agree with the General Counsel that, once the Union had withdrawn from the election, Re- spondent's purpose could not have been to assess the va- lidity of a claimed majority. In all likelihood, Respond- ent's motive was to rub salt into the wounds of the Union's adherents and convince them of the futility of continued support for the Union should it renew its or- ganizational efforts. If these were Respondent's motives, it failed to communicate them to the employees. The em- ployees may have been assured during the preelection period that they would suffer no reprisals for union ac- tivity, but similar guarantees were not extended to pro- tect their participation in the mock election. Further, al- though the employees did not take precautions to keep their ballots secret, the conditions under which the voting was conducted afforded them little privacy. The employees might well have believed that any effort to conceal their ballots would be regarded as suspect in light of management's hovering presence throughout much of the balloting. As to the final Struksnes criterion, while Respondent's representatives engaged in some relatively minor unfair labor practices during the preelection period, I do not hold them responsible for creating a coercive atmos- phere. If employees were apprehensive and insecure, it must be attributed to their own fears nurtured by the rumors which were flooding the plant. By July 12, the employees understood full well that it was not a genuine Board-conducted election in which they were participat- ing. Not one of the employees who testified in this case had the slightest belief that the election was bona fide or was misled into believing that the election was Board- sanctioned simply because the Agency's sample ballot was utilized. The use of the Board's sample ballot in these circumstances is not proscribed where it has been in no way altered in form or content and has led no one to assume that the Board lent its name or prestige to any party. Compare Allied Electric Products, Inc., 109 NLRB 1270, 1272 (1954), with GAF Corporation, 234 NLRB 1209 (1978). Notwithstanding Respondent's innocence in this respect, there is sufficient evidence of its failure to observe the other Struksnes standards to conclude that its conduct of the mock election violated Section 8(a)(1) of the Act. 6. A Gissel order is unwarranted The General Counsel urges that a bargaining order is necessary in this case to remedy the coercive effects of Respondent's severe and substantial unfair labor prac- tices. Under the standards enunciated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), rehearing 522 EAGLE COMTRONICS, INC. denied 396 U.S. 869, the Supreme Court has affirmed the Board's authority to issue a bargaining order where an employer's misconduct has been so outrageous and unfair or so extensive and pervasive as to undermine the union's majority strength and impede the election proc- ess. However, where the unfair labor practices are so minor as to have only a minimal impact on the election machinery, a bargaining order will not be sustained. Gissel Packing Co., supra at 1447-48. With these consid- erations in mind, I am persuaded, based on my review of the totality of Respondent's conduct, that a bargaining order is unwarranted here. Of the 13 allegations of unlawful practices set forth in the complaint, 4 were found to have merit. Thus, as I concluded above, Respondent violated Section 8(a)(1) of the Act by promising its employees a surprise clambake; by failing to assure the workers that in the event of a strike they would not be permanently replaced but would have a right to reinstatement; by implying there would be a delay in the receipt of improved insurance benefits; and by conducting an unlawful poll. Although these infractions affected large segments of the work force and cannot be regarded as isolated, I do not regard them as so serious or of such a lasting quality as to with- stand correction through the Board's traditional reme- dies. It is true that Respondent hinted that a surprise would be forthcoming in the midst of the preelection period and that it was widely understood that the surprise was a clambake. However, the employees subsequently learned that the monetary value of the fete was $34. It is ex- tremely doubtful that, in the event of another election some 2 years after the fact, the employees' sympathies either for or against a union could be swayed by the price of two tickets to a clambake. Similarly, there will be at least a 2-year hiatus between the time the implied threat to delay insurance benefits occurred and the conduct of any subsequent election. This passage of time is sufficient to cure any coercive impact that threat may have had. In the interim, Re- spondent may have arranged for a new group insurance plan. If so, the employees will be in a position to deter- mine whether benefits were actually delayed and wheth- er Respondent's implied threat was little more than an idle remark made in the heat of the moment. Further, they will be capable of fairly appraising the value of the benefit against the advantages of unionization. In failing to advise the employees of their right to re- instatement in the event of layoffs due to a strike, man- agement officials at no time suggested that a strike was inevitable or that it would pursue a course of action which might bring about such a result. Their sin was one of omission rather than commission and is one which can readily be corrected through the posting of a Board notice which properly advises employees of their rights. The mock election was conducted after the Union withdrew from the election and therefore it cannot have served to undermine the Union's majority. Moreover, the employees had no illusions they were participating in a Board-conducted election. Therefore, they have no reason to assume that, if another election were properly conducted under the Board's auspices, the same condi- tions would prevail. In sum, Respondent's unfair labor practices primarily took the form of oral statements containing veiled allu- sions. This is the kind of conduct which should be dissi- pated easily with a carefully worded notice and the pas- sage of time. Further, this misconduct took place during the course of what was a hard fought but generally lawful campaign on the Company's part. There were no threats of reprisal for union activity; the complaint is no- ticeably barren of any allegations of discriminatory dis- charges; there were no findings of threatened plant clo- sure, no outright threats of job loss, no stripping away of benefits, no efforts to solicit or redress employee griev- ances, no accusations of unlawful interrogations, and no promises of wage increases. In other words, none of the flagrant transgressions which the Board and the courts have regularly regarded as justification for the issuance of a bargaining order were committed here. See. e.g., N.L.R.B. v. Jamaica Towing Inc., 602 F.2d 1100 (2d Cir. 1979); Faith Garment Company, Division of Dunhall Phar- maceutical. Inc., 216 NLRB 299 (1979), affd. 630 F.2d 630 (8th Cir. 1980). I conclude, therefore, that Respondent's violations fit into the category of conduct described in Gissel Packing Co., supra, as having only a "minimal impact on the elec- tion machinery" which should not preclude the holding of a fair election after imposition of the Board's tradition- al remedy. See Lasco Industries, Inc., 217 NLRB 527 (1975); Tennessee Shell Company, Inc., 212 NLRB 193 (1974); Green Briar Nursing Home, Inc., 201 NLRB 503 (1973). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By June 4, 1979, the Union was designated by a ma- jority of Respondent's employees at the Baldwinsville and Clay plants as their representative for purposes of collective bargaining. 4. Respondent has violated Section 8(a)(1) of the Act by promising employees future benefits, that is, a clam- bake; by impliedly threatening a delay in the receipt of improved insurance benefits; by failing to advise workers of their right to recall in the event they were replaced during a strike; and by conducting an unlawful poll to ascertain employees' union sentiments. 5. Respondent did not violate Section 8(a)(1) of the Act by threatening plant closure, a loss of jobs by re- placing employees with applicants on file, a loss of bene- fits due to expenditures for legal fees to contest the Union, or a reduction in pay by bargaining from a mini- mum wage base. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that it be required to 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER' The Respondent, Eagle Comtronics, Inc., Clay and Baldwinsville, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising its employees future benefits to forestall their union activities. (b) Impliedly threatening its employees with a delay in receiving insurance benefits. (c) Failing to advise employees of their right to rein- statement as vacancies arise, in the event of an economic strike. (d) Conducting unlawful polls of its employees' union sympathies and desires. Is In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its facilities in Clay and Baldwinsville, New York, copies of the attached notice marked "Appen- dix."' 6 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar it alleges violations of the Act not specifically found. '6 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 524