Economy Fire and Casualty Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Economy Fire and Casualty Co. and Missouri-Mis- sissippi River Valley District Council, Interna- tional Ladies' Garment Workers' Union, AFL- CIO. Case 14-CA-15121 September 22, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On March 22, 1982, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings,' findings,2 and conclusions3 of the Administrative Law Judge We agree with the Administrative Law Judge's ruling admitting into evidence certain statements made by Viv Eberle in her affidavit given during the course of the investigation of the charge in the instant case However, we disagree with the Administrative Law Judge's rationale, set forth in fn. 4 of his Decision, for admitting the evidence into the record The Administrative Law Judge, apparently viewing Eberle's affidavit as a deposition, relied on the Board's decision in Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978), in which the Board found admissible two prior affidavits of a witness which contradicted the witness' testimony at the hearing. However, the illstant case, unlike Bart, is controlled by Rule 803 of the Federal Rules of Evidence which provides, inter alia, the follow- ing exception to the hearsay rule (5) Recorded recollection A memorandum or record concerning a matter about which a witness otce had knowledge but now has in- sufficielit recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge cor- rectly. If admitted, the memorandum or record may be read into evi- dence but may not itself be received as an exhibit unless offered by an adverse party We are satisfied that the conditions precedent to operation of this hearsay exception have been nmet here as Eherle gave the affidavit to the Board agent only 2-1/2 months after the underlying events occurred and the Administrative Law Judge credited Eberle's testimony that the affidavit was "true and accurate" when it was given. Under these circumstances, the Administrative Law Judge properly allowed Eberle to read a portion of her affidavit into the record z Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judgr's resolutions with respect to credi bility unless the clear preponderance of all of the relevant evidence con- vinces 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 his findings 3 In agreeing with the Administrative lIaw Judge that Supervisor Pam Chancy in her June II, 1981, conversation with Mary Gornan violated Sec. 8(aXl) of the Act by, inter alia, improperly soliciting grievances, we, unlike the Administrative Law Judge, attach no significance to Supervi- sor Chaney's inquiry to the personnel department, at Gorman's irnstiga- tion, as to whether Gorman's pending wage increase, which was not itself alleged to be unlawful, had been approved 264 NLRB No. 3 and to adopt his recommended Order, as modified below. 4 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, as modi- fied below, and hereby orders that the Respondent, Economy Fire and Casualty Co., Centralia, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs I(a), (b), and (d): "(a) Soliciting grievances in order to influence employees against selecting the Missouri-Mississippi River Valley District Council, International Ladies' Garment Workers' Union, AFL-CIO, as their bar- gaining representative. "(b) Threatening loss of benefits by denying access to management in the event the Union is se- lected. "(d) Warning that in the event of the Union all benefits will be taken away except those manage- ment wants or decides to keep." 2. Insert the following as paragraph l(f) and re- letter the subsequent paragraphs accordingly: "(f) Threatening that employees who signed union cards could lose their jobs if the Union is not selected." 3. Substitute the attached notice for that of the Administrative Law Judge. 4 The Administrative Law Judge found, and we agree, that Respond- ent violated Sec. 8(a)(1) of the Act by telling employees that employees who signed union cards could lose their jobs if the Union did not come in. However, the Administrative Lasr Judge failed to provide for this violation in his recommended Order or notice. We have amended the recommended Order and notice to correct this inadsertence, and to accu- rately reflect the violations found APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REIATIONS 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. WE WILL NOT solicit grievances in order to influence employees against selecting the Mis- souri-Mississippi River Valley District Coun- 16 ECONOMY FIRE AND CASUALTY CO. cil, International Ladies' Garment Workers' Union, AFL-CIO, as their bargaining repre- sentative. WE WILL NOT threaten loss of benefits by denying access to management in the event the Union is selected. WE WILL NOT threaten that, in event of the Union, negotiations will start at zero and/or start at zero because of the National Labor Relations Board. WE WILL NOT threaten that the Company will move its office if the Union is selected. WE WILL NOT warn that in the event of the Union all benefits will be taken away except those management wants or decides to keep. WE WILL NOT threaten that employees who sign union cards could lose their jobs if the Union is not selected. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. ECONOMY FIRE AND CASUALTY CO. DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Judge: Based on a charge filed on June 29, 1981, by Missouri-Mississippi River Valley District Council, International Ladies' Gar- ment Workers' Union, AFL-CIO, herein the Charging Party or Union, a complaint was issued on August 14, 1981 (amended on November 4), against Economy Fire and Casualty Co., herein Respondent or Company, alleg- ing violations of Section 8(a)(i) of the National Labor Relations Act. All the parties filed briefs in this matter. Upon the entire record in the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation and, at all times material herein, has maintained an office and place of business in Centralia, Illinois. Respondent is engaged in the solicitation, sale, and issuance of fire and casualty in- surance policies, and Respondent's place of business lo- cated at Centralia is the only facility involved in this proceeding. During the 12-month period ending July 31, 1981, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, received from policy holders insurance premiums valued in excess of $500,000, of which in excess of $50,000 represented premiums re- ceived from policy holders located outside the State of Illinois. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR L ABOR PRACTICES The principal issue involved in this case is whether the Respondent violated Section 8(a)(1) of the Act as a result of various conversations that were held between the su- pervisors and employees. The allegedly unlawful state- ments were made by three supervisors' in periods when they distributed legal campaign literature on or about March 30, April 8, and June 11, 1981.2 It appears from this record that the Union began an organizing campaign among the employees at Respondent's office in Centralia about the middle of March 1981. It is alleged that on or about March 30, 1981, 3 Re- spondent, acting through Marie Davis, attempted to so- licit grievances by informing employees that a union was unnecessary as employees could come to her with their problems; that on the same date Supervisor Davis threat- ened employees with the denial of a statutory right in reprisal for their selection of a union by telling employ- ees that they would have to go through their steward if any work-related problems arose; that also on or about March 30, Supervisor Davis told employees that, if a union were selected, negotiations would start at zero and employees could lose benefits; and it is further alleged that on March 30 Supervisor Davis solicited grievances and impliedly promised to resolve employee complaints by telling employees that paying dues for a spokesman was useless when employees could go to the Respondent at any time. On March 30, Supervisor Marie Davis engaged in a conversation with employees Patricia Stricker and Vi- vienne Eberle. The conversation in question occurred as Davis handed these two employees a company memo, dated March 30, addressed to "all employees" and signed by David S. Moorman, Respondent's resident vice presi- dent (G.C. Exh. 2). Stricker testified that Supervisor Davis then asked if they had any questions about the memo, at which time she (Stricker) inquired as to what negotiation was, and that Supervisor Davis responded by stating that if the Union got in the Company would have to negotiate with the Union to pay wages, and "they will start at zero," and then Davis continued by telling Stricker and Eberle that during the negotiations--"the Union might get more for you, might get less, or it might end up exactly the same." Employee Viv Eberle testified that, on or about March 30, she recalled receiving and seeing General Counsel's Exhibit 2 and also acknowledged a conversation she and Pat Stricker had with Supervisor Marie Davis on the I The supervisory status of Davis. Baldridge, and Chancy is not disput- ed. 2 G.C. Exhs. 2. 3, and 6. , All dates are 1981 unless stated otherwise 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above date, but then testified that she had no present rec- ollection of that conversation. However, Eberle admitted that she had previously given an affidavit to the Board, and at the hearing before me identified a certain docu- ment as her affidavit prepared during the course of an in- terview with a Board agent on July 15, and then also stated that answers which she provided to the Board's agent on that occasion were true and accurate to the best of her recollection.4 According to the affidavit given by Eberle-Supervisor Davis, on March 30, told her and Stricker that she did not think the Union was necessary because employees could always come to her if they had a problem and they did not need a go-between; that it was useless to pay dues for someone to speak for them when they could come to management at any time, but if the Union came in, the employees would have to go through their steward if any problems as to their jobs arose; and stated that Supervisor Davis also told them that "negotiations would start at zero" and employees "could possibly end up with less benefits" than they now had. Employee Linda Marshall testified that she also had a conversation with Supervisor Davis on March 30. Mar- shall stated that this conversation occurred at her desk and no one else was present-and that Davis handed her the company memo dated March 30, 1981 (G.C. Exh. 2), and asked her if she had any questions, and then Davis explained the memo and said that the negotiations (with the Union) "would start at zero wages." Supervisor Davis admitted talking to all her employees (16 of them including Stricker and Eberle) relative to the company document received in evidence as General Counsel's Exhibit 2. Davis testified that on the occasion in question employee Viv Eberle stated that in her expe- rience with unions "personal problems" were settled by union stewards, but that she (Davis) replied that, from her experience, it was "work related problems" that were settled. Davis could not recall any conversation with employee Stricker or stating that they could lose benefits if they joined the Union, but at another time ad- mitted telling Eberle and Stricker that in negotiations the employees could end up "with more, the same, or less," but denied telling them that negotiations would start at zero. Davis testified that she informed Eberle that the Company enjoyed good relationship with people in her department, and therefore she did not think it was neces- sary to have "someone else" handle any problems. It is alleged in the complaint that on or about April 16, 1981, Respondent, acting through Supervisor Tomi Bal- dridge, told employees that, if a union were selected, ne- 4The Respondent argues that specific statements bh Eherle in her affi- davit (read into the record) are inadmissible to prove the truth of the matters asserted therein However. under circumstances here, I will admit into evidence certain statements mllade by Eberle in her affidavit. See Alvin J. Bart and Co.. Inc.. 236 NLRB 242 (1978) (and court cases and authorities cited therein). and wherein the Board stated, in part, at 24!. "If the sworn statements to the Board agent are regarded as depositions, they are not hearsay under the Federal Rules. And there is good reason to treat them as such because there is no requirement under the Federal Rules that the prior statement embodied in a deposition be subject to cross-examination when made." In the instant case, Eberle does not deny the contents of her affidavit but testified that it was "true and accurate," and, therefore, under such circulilstanlces, I must conclude that it present- ed the truth in the matter as she did nothing to discredit her affidavit. gotiations for wages would begin at zero and union members would probably end up with less pay; that on the same date Supervisor Baldridge evinced a regressive bargaining posture by telling employees that if a union were selected all benefits would be taken away except for those which Respondent decided to give employees; that also on April 16 Baldridge threatened to discharge employees who signed union cards if the Union were not successful; and lastly it is alleged that on the above-men- tioned date Supervisor Baldridge told employees that the Union would be of no benefit to the employees and that union activity was futile.5 The General Counsel produced testimony through em- ployee Florence Knox to the effect that on April 16 she overheard a conversation between employee Barbara Becker, Becky Rickhoff, and Supervisor Tomi Baldridge, wherein Baldridge told Becker and Rickhoff that, if the Union came in, negotiations or wages would start at "ground zero" and those within the Union would prob- ably end up making less pay than they make now, and that Baldridge continued by saying that all benefits would be taken away except for those that D. E. Bitz, president of the Company, would decide to let the em- ployees have. In addition, Knox also heard Baldridge tell Becker and Rickhoff that, if the Union did not go through, and employees signed a union card, the employ- ees could lose their jobs, and, if an employee signed a union card and the Union did not go through, the em- ployees would have to pay union dues without union representation. Supervisor Baldridge admitted talking to Becker and Rickhoff on the date in question (April 16) and further admitted that Knox could have overheard parts of her conversation since Knox was sitting at a desk directly behind her. However, Baldridge denied making any statement about loss of benefits if the employees joined the Union, and also denied making any remarks about discharges if union cards were signed and the Union did not get in, and further denied saying that union activity would be of no benefit or would be futile, or that em- ployees would have to pay dues without union represen- tation. Baldridge testified that, in her union conversations with Becker and Rickhoff on April 16, they asked ques- tions and then expressed concern that the Company would be closing down because of the Union and were afraid they would be fired, and also told her that they did not want to sign any cards or pay union dues like their husbands were doing. Baldridge stated that, in reply to the above, she told them that as far as she knew the Company would not be closing, that they had the right to organize and sign cards. and that there "would he no way" to discharge them. Respondent also called Barbara Becker, presently an auto rater for the Company. and produced testimony through her to the effect that, when she had been handed General Counsel's Exhibit 6 (letter by the Com- pany to employees relative to unions in mid-April), she T he General Counsel ne(,v m, ,ses to strike this last all cgati!n against Baldridge (par. 51) inasmuch as there is no evidence in the record to sup- port it. In accordance therewith. I hereby grant the motion 18 ECONOMY FIRE AND CASUALTY CO. asked Baldridge questions about it in the presence of em- ployee Rickhoff and with Florence Knox nearby. Becker testified that on this occasion she asked Baldridge about signing union cards and whether dues could he collected during certain periods, and whether the em- ployees would be "better off' with or without a union and if they would lose or gain benefits, and Baldridge re- plied, "It could go either way-we could gain, we could lose some." Becker stated that Supervisor Baldridge did not say that they would be fired if employees signed a card and the Union did not get in, nor did she say that their union activity was a waste of time nor did she tell them that if the Union got in the Company would take away the benefits, nor did Baldridge tell them that nego- tiations would start at zero. It is alleged in the complaint that on or about June I I Respondent, acting through Assistant Supervisor Pam Chaney, attempted to solicit grievances by asking an em- ployee if that employee had any complaints about Re- spondent: that on the same date Supervisor Chaney told an employee that, if a union were selected, negotiations would start at zero; that on or about June 11 Chaney in- terfered with, restrained, and coerced employees by mis- stating the law in telling an employee that if a union were selected negotiations would start at zero according to the National Labor Relations Board; and it is further alleged that on or about June 11 Supervisor Chaney im- pliedly threatened that Respondent would move its place of business if the employees selected a union. In support of these allegations employee Mary Gorman testified that on June II Supervisor Pam Chaney approached the desk and asked her to go into the breakroom. There Chaney handed her a copy of a company memo (G.C. Exh. 3), and after she read the memo Chaney asked whether she had any questions or complaints about the Company, and then went on to state that the Company had a lot of room for advance- ments and compared their benefits and working condi- tions with other employers. Gorman further testified that during the course of their conversation she questioned Supervisor Chaney about certain rumors circulating in the office, and then asked Chaney whether negotiations would start "at zero" if the Union got in, to which Chaney replied affirmatively. Gorman said she then asked how Chaney knew this to be true and Chaney re- sponded, ". .. per the N.R.B. [sic]" On this occasion Gorman also asked Supervisor Chaney whether the Company would move away if the Union got in, and Chaney replied, "It wouldn't be in the Company's best interest to move, but no one knows what will happen be- cause there's never been a Union in any Economy or Kemper office." Gorman testified that during their conversation she had also inquired of Chaney as to status of her wage in- crease, and that at the end of their talk they went to the office where Supervisor Chaney called the Personnel Department about this matter, and then told Gorman that she had received her raise and it was to be $30, and had been approved on the day here in question. b Becker admitted Ihal Knox would have been able to hear their con- versalion had she been listening rather than working Supervisor Chaney admitted that she had a conversa- tion with Mary Gorman on June II, presented her the memo to read, as aforestated, and then asked if she had any questions as there were many rumors around the office. Chaney said that Gorman then inquired whether negotiations would start at zero. and in reply she stated that in contract negotiations you "start from scratch" and "sometimes you get more, sometimes you get less, sometimes you end up with the same." Chaney further testified that Mary Gorman also asked about her benefits and her wage raise. Chaney stated that management had previously submitted Gorman for a wage raise, but she had not yet received the confirmation and this is why she called the personnel office. Chaney was then asked if she mentioned to Gorman anything about the Company moving out of town, and Chaney recalled some conver- sation about this and said she told Gorman, "no, they would not be advantageous for the Company to move out of town"-that the Company owned the building and in her opinion she thought it was against the law to move out if it was because of union activity. Chaney was then asked whether she told Gorman that the negotia- tions would start at zero according to the National Labor Relations Board. Chaney replied that she did not recall mentioning this, and stated that it was not until later on-after hearing about union organizing-that she became familiar with the National Labor Relations Board, and until then did not have any idea what they did or who they were. Final Conclusions As pointed out, in late March Supervisor Marie Davis had approached employees Vivienne Eberle and Pam Stricker and distributed to them a memorandum con- cerning the Company's position on unions, and then pro- ceeded to discuss this matter with them. Initially, Davis discussed the lack of a necessity or need for a union to act on the employees' behalf in handling problems with Respondent because employees could come to her with their problems. Moreover, Supervisor Davis openly ad- mitted telling the two employees that she believed "we already had a good relationship, the people and I in my department, and I didn't think it was necessary to have someone else handle any problems." Employee Eberle's recorded recollection is consistent with Supervisor Davis' admission-according to Eberle, Davis stated, "I don't think a union is necessary, you can always come to me if you have a problem." Further, Eberle stated that Supervisor Davis admonished, "It's useless to pay dues for someone to speak for you when you can come to us at any time," but with the additional statement by Davis that if the Union came in employees would then have to go through a union steward.7 As also indicated, on or about June II Supervisor Pam Chaney approached employee Mary Gorman and handed her a memorandum from David Moorman presenting the 7 It is also well established that a statement or reference to employee's loss of access to management constitutes a violation of Sec. 8(a(I) of the Act--lhat such reference is a clear misstatement of employee rights under Section 9(a) of the Act and an unlawful threat of loss of benefits Sacramento Clinical Laboratorr. Inc. 242 NLRB 944 (1979). 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's position relative to the Union's organizing campaign. Employee Gorman's credible testimony is that, after affording her the opportunity to read the Company's memo, Supervisor Chaney then asked "if she had any questions or complaints about the company." Supervisor Chaney admits a conversation with Gorman on the date in question, and I am in agreement that her own account of the incident parallels that of employee Gorman--" asked her if she had any questions or any- thing I could help her with ... ." Counsel for Respondent argues that the admission of Vivienne Eberle's affidavit testimony was erroneous (I have found otherwise), and that Pat Stricker gave no tes- timony to support Eberle. Respondent also maintains that, even assuming Eberle's affidavit was properly ad- mitted and that testimony contained therein should be credited, there is still no evidence of any unlawful solici- tation-that by Board law it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(l), but the promise to correct grievances or a con- current interrogation about union sympathies that is lawful-citing Uarco Incorporated, 216 NLRB 1 (1974), and that Davis' testimony with respect to this incident was far more lucid and credible.' The Board has frequently indicated that the solicita- tion of grievances from employees during an organiza- tional drive, as is the situation in the instant case, is an attempt to discourage employee support of the union by showing employer interest and cooperation in solving problems. It is an implied promise to remedy complaints if the employees bypass the union, and it interferes with employees' free choice of a representative and, as such, is violative of Section 8(a)(1) of the Act. Belcher Towing Company, 238 NLRB 446 (1978). Moreover, as the Board said in Reliance Electric Company, 191 NLRB 44, 46 (1971): 8 It should be noted and pointed out that the credited testimony and facts found in this Decision are based on the record as a whole upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial records and exhibits swith due regard for the logic of probability, the demeanor of the witnesses and the teaching of N.L.R.B. v. Walton Manufacturing Company, 369 U.S. 404 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in con- flici with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. As has been frequently indicated in these types of cases-ultimate choice between conflicting testimony rests on the demeanor of the witnesses, the weight of the evidence, the established or admitted facts, the inherent probabilities, the reasonable in- ferences drawn from the circumstances and events, and. in sum, all of the other variant factors which a trier of fact must consider in resolving credibility. For the most part, I have found the witnesses for the General Counsel in the instant case to be open, straightforward, spontaneous, and convincing witnesses with more precise memory and recollection of the events and the details involved, as has been and will be set forth and dis- cussed herein. Moreover, a mailgram from employees was sent to the Company in late May advising that certain employees were serving as an organizing committee for the Union, and the signatures of Mary Gorman, Florence Knox, Linda Marshall, and Patricia Stricker appeared on it. Thus, all of the employees upon whose testimony the instant complaint is predicated, other than Eberle, were known union organizers, and while Respondent argues otherwise, it readily appears to me that management concentrated its antiunion statements and remarks on at least some of the organizing committee members whose specific identification was then later authenticated by the mailgram. Where, as here, an employer, who has not previ- ously had a practice of soliciting employee griev- ances or complaints, adopts such a course when unions engage in organizational campaigns seeking to represent employees, we think there is a compel- ling inference that he is implicitly promising to cor- rect those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unnecessary. The credited testimony in the instant case, as aforestat- ed, readily implies a promise to correct complaints with- out any union, and the fact that Gorman's proposed wage and pending increase was immediately attended by Supervisor Chaney after she asked if there were any complaints is indicative of corrective measures manage- ment would take without union support or intervention. Employee Vivienne Eberle also recalled, as of the date she gave a sworn affidavit, that Supervisor Davis stated to her on March 30 that if a union came in employees would have to go through their union steward if any problems as to their jobs arose. As pointed out, during Davis' testimony she described her conversation with Eberle as comprising a discussion of Eberle's past experi- ences with unions and whether unions handled personal or work-related problems. However, Davis did not di- rectly address the issue of her remarks about the necessi- ty of employees going through a union steward, and I have credited Eberle's testimony. As previously detailed herein, employers have been held to violate Section 8(a)(l) of the Act by telling employees, that if they se- lected a union as their collective-bargaining representa- tive, they then could not present their grievances or dis- cuss their problems directly with management. See also Tipton Electric Company, 242 NLRB 202 (1979). The General Counsel also alleges that, on various oc- casions from March through June, several supervisors told employees that if a union were selected negotiations would start at zero and employees could lose benefits. Former employee Pam Stricker gave credited testimo- ny, as aforestated, that Supervisor Davis told her on March 30 that negotiations would start at zero, and Stricker's testimony is corroborated by employee Vi- vienne Eberle whose recorded recollection (now admit- tedly true) was that Davis told them that negotiations would start at zero, and they (the employees) could pos- sibly end up with less benefits than they now had.9 Employee Linda Marshall credibly testified to a second incident on March 30 in which Supervisor Davis stated that negotiations would start at zero. Supervisor Davis was not questioned as to this statement attributed to her by Marshall, hence Respondent provided no con- tradictory testimony and Marshall's testimony stands un- denied. ' o 9 Supervisor Davis stated that at a later time she had made a reference to negotiations in her discussions and at this time stated that employees could end up "with more, the same, or less," as previously detailed "' Respondent attempted to discredit Marshall's testimony by showing that Marshall and Stricker talked among themselves regarding their affi- davits. This record shows that, during the investigative stage of this case, Continued 20 ECONOMY FIRE AND CASUALTY CO. As set forth herein, employee Florence Knox testified as to another violative incident when a supervisor told employees that that negotiations would begin at zero. Knox testified to a conversation she overheard in which Supervisor Baldridge told employees Barbie Becker and Becky Rickhoff "if the union comes in, negotiations would start at ground zero. The wages would start at zero, and those within the Union would probably end up making less pay that they are now." While Supervisor Baldridge stated that she has no recollection of discuss- ing the subject matter of negotiations with employees Becker and Rickhoff, she did admit discussing this matter with some of her employees. Employee Barbie Becker also admitted that a conversation about the Union took place between her, Rickhoff, and Supervisor Baldridge, and that Florence Knox was nearby. I Employee Mary Gorman also credibly testified to a fourth conversation in which Respondent discussed bar- gaining from zero. She testified that on June I I, during a conversation concerning the Company's position on unions as presented in memorandum, she asked Supervi- sor Chaney if negotiations would start at zero if the Union got in, and Chaney later admitted that she re- sponded by telling Gorman that in contract negotiations you "start from scratch." Counsel for Respondent argues that, even assuming statements about negotiations starting from zero were made, such were not violative of Section 8(a)(l)-that statements about negotiations starting at zero, in the con- text they were uttered here, are not objectionable-that the main thrust of the remarks was that the mere desig- nation of a union would not automatically secure to em- ployees a large increase in wages and benefits, and there was no specific implication that the Company intended Marshall and Stricker Wsere present and did speak to one another during the Board agent's interviews of witnesses. However. there is no evidence that they attempted to fabricate any portion of their affidavits to the Board agent Rather, the tso, witnesses merely sought to ascertain the dates of their conversation with Supervisor Davis. In addition, the union organizer who coordinated the arrangements for the taking of affidavits. loby Clifton, testified that the people swaiting to provide their affidavits were not in the immediate presence of the affiant, but were at the other end of the room approximately 32 feet away. Furthermore. Marshall and Stricker testified as to two different and separate conversations with Davis and hence any alleged collaboration between them would be of no s alue. il Respondent also attacked the credibility of Florence Knox, and ini- tlally did so on the basi, that it doubted Knox's ability to accurately oerhear the cornversation. lowever, the evidence established that Knox is a reliable witness and did hear the conversation. In fact, both of Re- spondent's witnesses involved admitted that it would have been possible for Knox to hear the concersation, and in addition Knox testified that Su- pervisor Baldridge's normal speaking voice is loud, so loud, in fact, that she has in the past complained about being disrupted in her work Sec- ondly, Respondent argued that Knox's recollection of the conversation is secondary to that of tile actual participants-employee Barbie Becker and former employee Becky Rickhoff-and pointed out the absence of Becker's and Rickhoff's testimony in the General Counsel's case. Howev- er, a' indicated. the failule to present a witness who is beyond the con- trol of a proponent does not necessarily warrant an adverse inference. Moreover, not only does employee Becker have doubt about whether she should join a union, as this record reveals, but she is also supervised by Tomi Baldridge, and whereas Knox is not. I am in agreement that any discrepancy in the testimony of Becker and Knox must be resolved in the latter's favor because. under these circumstances, it would not be surpris- ing if Becker were less than completely candid about her recollection of a conversation so damaging to her present supervisor to adopt a bargaining posture offering employees less that they were receiving. In Coach and Equipment Sales Corp., 228 NLRB 440 (1977), the Board stated as follows: "Bargaining from scratch [or zero]" is a danger- ous phrase which carries within it the seed of a threat that the employer will become punitively in- transigent in the event the union wins the election. The Board has held that such "hard bargaining" statements may or may not be coercive, depending on the context in which they are uttered. Thus, where a bargaining-from-scratch statement can rea- sonably be read in context as a threat by the em- ployer either to unilaterally discontinue existing benefits prior to negotiations, or to adopt a regres- sive bargaining posture designed to force a reduc- tion of existing benefits for the purpose of penaliz- ing the employees for choosing collective represen- tation, the Board will find a violation. Where, on the other hand, the clearly articulated thrust of the bargaining-from-scratch statement is that the mere designation of a union will not automatically secure increases in wages and benefits, and that all such items are subject to bargaining, no violation will be found. A close question sometimes exists whether bargaining-from-scratch statements constitute a threat of economic reprisal or instead constitute an attempt to portray the possible pitfalls for employ- ees of the collective-bargaining process. The pres- ence of contemporaneous threats or unfair labor practices is often a critical factor in determining whether there is a threatening color to the employ- er's remarks. In the instant case, the credited evidence reveals that on several occasions supervisors told employees that ne- gotiations would start at zero and that employees could end up with less benefits or pay than they presently had, or benefits would be taken away except for those the Company's president decided to let them have. It ap- pears to me that, coupled together, these statements do not simply confine themselves to the legitimate message that collective bargaining is potentially hazardous, and that as a result employees might wind up with less bene- fits after unionization than before. Rather, these state- ments in the instant case can only be taken as meaning that management intended to adopt a bargaining stance designed to ensure that collective bargaining could not result in any increases in benefits for employees and would or could probably result in decreased benefits-in short, that unionization, if it had any effect at all, would, because of Respondent's intransigence, result in worse benefits, not better. 2 Accordingly, I deem such remarks by Supervisor Davis, Baldridge, and Chaney to be a threat in violation of Section 8(a)(1) of the Act. ' Turning now to the allegation that Supervisor Chaney coerced employees by misstating the law in telling Mary Gorman that if a union were selected negotiations would 12 Coach and Equipmenm Sale C(orp., upra. 13 See also Dominican Santa Cruz Ilopital, 242 NLRB 1107 (1979). 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD start at zero according to the National Labor Relations Board. In her initial testimony Supervisor Chaney could not recall mentioning the National Labor Relations Board to Gorman during their conversation on June 11, but then admitted she had heard about the National Labor Rela- tions Board some months earlier when she was apprised of the union organizing activity. The General Counsel argues that Chaney's testimony is exposed as fabrication by the fact that she maintained no knowledge of the NLRB even though she was a supervisor and talked to employees about unionization and solicited questions from employees concerning unionization. Moreover, the General Counsel maintains that it defies commonsense to believe that she did not know of the NLRB at least some weeks earlier than the June II conversation with Gorman, and especially so since Chaney admitted read- ing a mailgram from employees sent to Respondent in late May stating, among other things, that they authorize the Union to advise the NLRB that the undersigned were serving as an organizing committee, as previously mentioned herein. Based on all the circumstances noted above, and in view of the fact that I have found Mary Gorman to be a credible and reliable witness, I must conclude that the conversation took place as reported by Gorman, and that while Supervisor Chaney might not have been fluent in the workings of the NLRB, she had at least heard of it by the date of the conversation-June 1. In the final analysis, Supervisor Chaney misstated the law on this occasion, and in so doing discouraged em- ployee support for the Union by telling Gorman that under the NLRB bargaining would start from scratch- which implies that employees could lose by selecting a union to represent them, and such clear misstatement of Board law interferes with employees' right to free choice in determining representation and, as such, is violative of Section 8(a)(1).14 Considering now the allegation that on or about April 16 Supervisor Baldridge evinced a regressive bargaining posture by telling employees that if a union was selected all benefits would be taken away except for those which Respondent decided to give employees. Florence Knox testified that she heard Baldridge tell employees Becker and Rickhoff that "all benefits would be taken away except for those which Mr. D. E. Bitz would decide to let them have." Employee Becker re- calls that Supervisor Baldridge did discuss employee benefits with her and Rickhoff although she does not specifically recall Baldridge mentioning D. E. Bitz' name, but admits that Baldridge could have. The law is clear that a threat to bargain down from existing benefits is violative of Section 8(aXI). Such a threat interferes with employees' Section 7 rights to a free choice in representation. Similarly, employer state- ments that all benefits would be taken away except those management wished to retain demonstrate a clear predis- position not to act in good faith, but would assume a take-it-or-leave-it attitude, and such remarks during an 1" See Sacramento Clinical Laboratory. Inc.. supra, 242 NLRB 944. organizing campaign are violative of Section 8(a)(1) of the Act. Dominican Santa Cruz Hospital, supra. There is also an allegation that on or about April 16 Supervisor Baldridge threatened to discharge employees who signed union cards if the Union was not successful. Florence Knox gave credited testimony in support of this allegation, as aforestated. Supervisor Baldridge ad- mitted that, on April 16, she met with employees Becker and Rickhoff (with Knox nearby) and discussed with them their concern about the office closing and losing their jobs if the Union did so prevail. It is, of course, a violation of the Act for an employer to tell employees that anyone caught signing union cards would be discharged as this interferes with employees' Section 7 rights, and it is also no less a violation, as pointed out, when such threat is surrounded by a condi- tional clause. Turning now to the allegation that on June 11 Super- visor Chaney impliedly threatened that Respondent would move its place of business if the employees select- ed a union. Mary Gorman testified that, on June 11, Su- pervisor Chaney asked if she had any questions concern- ing Respondent's position on the Union as presented in its memorandum. In response to Gorman's question whether the Company would move away if the Union came, Supervisor Chaney then stated, "It wouldn't be in the company's best interest to move, but no one knows what will happen because there's never been a union in any Economy or Kemper offices."' 5 It is Board law that an employer violates Section 8(a)(1) of the Act if it threatens to close or move its place of business if a union is selected by its employees- the resulting job loss restrains, coerces, and interferes with employees in their Section 7 rights, and whether there has been interference, restraint, or coercion does not turn on the subjective impact which the statement may have on the individual employee. Rather, the test is whether it can reasonably be said that the employer's conduct tends to interfere with the free exercise of em- ployee rights under the Act.'6 Applying this test, I find that Chaney's remark-that "no one knows what will happen because there's never been a union in any Econo- my or Kemper offices," in reply to the question of whether the Company would move-constituted a thinly veiled threat of retaliation against the union supporters, and no less a violation even though somewhat qualified by the statement that it would not be in Respondent's best interest to move. San Lorenzo Lumber Company, 238 NLRB 1421 (1978); Stanford Seed Co., 245 NLRB 1064, 1067 (1979). The foregoing statements that have been attributed to the Respondent include the solicitation of grievances; threatening loss of benefits by denying access to manage- ment in event of union representation; numerous threats Is Chaney initially testified that she did not recall any conversation with Mary Gorman on June 11 concerning Respondent moving out of town, but then stated that Gorman had asked her about the possibility of the Company moving. IK Gorman was very much concerned about the possibility of the office closing. because, as she testified, a computer which had been scheduled to be installed in the office around this time had not been in- stalled and so she wondered if that was a sign of impending closing. 22 ECONOMY FIRE AND CASUALTY CO. that if a union were selected negotiations would start at zero and/or start at zero according to the NLRB; warn- ing that all benefits could be taken away except those that management decided to keep; threats to discharge employees who signed union cards; and threats that the Company would move its place of business if a union were selected. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCL USIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in conduct described and detailed in section III, above, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' 7 The Respondent, Economy Fire and Casualty Co., Centralia, Illinois, its officers, agents, successors, and as- signs, shall: 1 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 1. Cease and desist from: (a) Soliciting grievances. (b) Threatening loss of benefits by denying access to management. (c) Threatening that in event of the union negotiations would start at zero and/or start at zero according to the NLRB. (d) Warning that all benefits could be taken away except those management decided to keep. (e) Threatening that the Company would move its office if the Union were selected. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its office in Centralia, Illinois, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 18 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 Appealk Enforcing an Order of the National l.abor Relations Board." 23