Monroe Auto Equipment Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monroe Auto Equipment Company and International Union, Automobile, Aerospace & Agricultural Implement Workers of America (UAW) 1 Monroe Auto Equipment Company and Allied Indus- trial Union of Auto Workers, Independent. Cases 10-CA- 11807 and 10-RC-10543 July 11, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 22, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party-Interve- nor filed an answering brief to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Monroe Auto Equipment Company, Hartwell, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i This Union was the Intervenor in Case 1O-RC 10543. 2 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 Judge's resolutions 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 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 31 For the reasons stated by the Administrative Law Judge, Chairman Fanning would, as a remedy for the many unfair labor practices committed by Respondent for the purpose of coercing its employees into rejecting the Union as their exclusive representative, order it to recognize and bargain with the Union as the exclusive representative of its employees in the unit for which the Union was certified as the exclusive representative following an election held in 1966. The restoration of that relationship which, though partially suspended by the filing of the petition in Case I0-RC-10543, is clearly called for if Respondent is not to enjoy the fruits of its unfair labor practices which have destroyed the reliability of the election process as a means of ascertaining the employees' continued desire for such representa- tion. Inasmuch as the Union is the certified representative and the certification carries with it a presumption of majority status, a presumption not rebutted, or subject to rebuttal in view of Respondent's flagrant unfair 230 NLRB No. 120 labor practices in this case, there can be no question but that the Union is entitled to continued recognition as such representative. Inasmuch as Respondent's conduct unlawfully attempted to coerce its employees into rejecting the Union, ordering Respondent to recognize and bargain with the Union as the employees' certified representative is appropriate and essential if the Board is to restore the status quo ante and guarantee to Respondent's employees their Sec. 7 rights. Chairman Fanning also agrees with his colleagues that Respondent violated Sec. 8(aX5). He notes that on the record Respondent's counsel stated that Respondent did in fact withdraw recognition from the Union. The fact that Respondent may have been entitled to end negotiations for a contract upon the filing of the petition and the Union's agreement to go to an election thereon in accordance with the principles of Shea Chemical Corporation, 121 NLRB 1027 (1958), does not justify a total withdrawal of recognition. Such action is not justified by the Shea Chemical line of decisions or by any other decision of the Board. Accordingly, as it appears in the record herein that Respondent has withdrawn recognition of the Union as its employees' exclusive representa- tive, Chairman Fanning agrees with his colleagues that Respondent should be ordered to cease and desist from refusing to recognize and bargain with the Union as the exclusive representaive of its employees. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case was heard in Hartwell, Georgia, on October 26-28, 1976. It is a consolidated proceeding. By order issued on September 22, 1976, by the Acting Regional Director for Region 10, pending objections in Case 10-RC-10543 were consolidat- ed with the complaint in Case 10-CA-11807 issued by the Acting Regional Director on August 27, 1976, and all issues in both matters are before me for disposition. An election was held on January 29 and 30, 1976, at Respondent's plant in Hartwell, Georgia, pursuant to a petition filed by Allied Industrial Union of Auto Workers, Independent. Thereafter, the UAW, the incumbent collec- tive-bargaining representative of Respondent's production and maintenance employees and an intervenor in the election, filed timely objections thereto, and the Regional Director issued a complaint alleging that by certain conduct prior to the election, Respondent had violated Section 8(aXI1) of the Act. Most of the objections and complaint allegations are coextensive. In his complaint, the General Counsel seeks not only findings of Section 8(a)(1) violations, but also asks for a remedial order which would require Respondent to bargain with the UAW. Briefs were received from all parties on or about December 21, 1976. Upon the entire record,' the briefs, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS Respondent, a Michigan corporation, has at all material times been engaged in the manufacture and sale of shock absorbers in Hartwell, Georgia. During the calendar year preceding the hearing, Respondent sold and shipped finished products valued in excess of $50,000 from its Hartwell, Georgia, plant directly to customers located outside the State of Georgia. Respondent concedes that it ' Certain errors in the transcript have been noted and are hereby corrected. 742 MONROE AUTO EQUIPMENT COMPANY is an employer engaged in commerce within the meaning of the Act, and I so find. Respondent admits in its answer, and I find, that International Union, Automobile, Aerospace & Agricultur- al Implement Workers of America (UAW) is a labor organization within the meaning of the Act. It. BACKGROUND Nearly 13 years ago, on July 23 and 24, 1964, pursuant to a petition filed by the UAW, an election was held among Respondent's production and maintenance employees at its Hartwell, Georgia, plant. The Union lost the election by a substantial margin. It filed objections thereto, 10 of which were sustained by the Regional Director. Seven of the sustained objections pertained to newspaper articles, cartoons, and advertisements appearing in two local newspapers. Among the items found objectionable were advertisements placed by a citizens group, which included pictures of a Hillsdale, Michigan, plant formerly operated by Respondent, with a large "X" crossed through the picture, an indication in the accompanying text that the UAW had put that plant out of business, and a suggestion that the same thing could happen in Hartwell. The Regional Director concluded that "the general tenor of each publication was calculated to instill in the minds of the employees a fear of plant closure, loss of employment opportunities and future security in the event the Petitioner was successful in the election." Respondent did not appeal from the Regional Director's decision, and a new election was held on March 3-4, 1966. The Union received a majority of the ballots in that election. Respondent filed objections to the conduct of the election and the Regional Director recommended that those objections be overruled. Upon appeal by Respon- dent, the Board adopted the Regional Director's report and certified the Union. In order to test the certification, Respondent refused to bargain with the Union, and the Board issued a bargaining order. 164 NLRB 1051 (1967). The Court of Appeals for the Fifth Circuit thought that the Board should have held a hearing on Respondent's objections and accordingly remanded the case. (406 F.2d 177.) After the hearing, the Board reaffirmed its order to bargain. 186 NLRB 90 (1970). The Court, agreeing that the misconduct found was not sufficient to warrant setting the second election aside, enforced. (470 F.2d 1329.) The Respondent's petition for certiorari was denied on June 4, 1973. (412 U.S. 928.) Shortly thereafter, Respondent filed a motion with the Board requesting vacation of the Union's certification and direction of another election, asserting that because of changes in the size and composition of the bargaining unit, the prior certification was invalid. The Board denied the motion on July 17, 1973. "Still undeterred and by now with three strikes against it," as the Court of Appeals for the Fifth Circuit was later to say. Respondent filed an action in the U.S. District Court, Middle District of Georgia, seeking an order compelling the Board to reopen the record, revoke the certification, and direct a new election. The District Court found that it was without subject matter jurisdiction. 84 LRRM 2835, 72 LC ¶ 14,198. Respondent then turned to the Court of Appeals for the Fifth Circuit once more. In affirming the district court, the court of appeals directed the assessment of double costs and an award of attorney's fees against Respondent "[b ecause both Congressional policy against Federal District Court involvement in Labor Board controversies and case law to the same effect and in point here are clearly contrary to the Employer's position." 511 F.2d 611, 614. Beginning in December 1973, and until on or about September 29, 1975, Respondent negotiated with the Union. No bargaining agreement was reached. On Novem- ber 24, 1975, the Allied Industrial Union of Auto Workers, Independent, filed a petition for representation. The UAW intervened in the proceeding. Pursuant to a Stipulation for Certification Upon Consent Election agreement, an elec- tion was conducted on January 29 and 30, 1976. The tally shows, inter alia, that 11 voters cast ballots for the Allied Industrial Union, 295 voted for the UAW, and 382 voted against both unions. The UAW filed timely objections to the election; the Allied Industrial Union filed no objec- tions, and it did not participate in the instant hearing. The UAW objections, and related complaint allegations, are before me. III. THE NEWSPAPER MATERIAL Portions of seven issues of two local newspapers were received in evidence as Joint Exhibits. They are relevant to both the complaint allegations and the election objections. The items introduced include newspaper articles about the election, interviews, advertisements, cartoons, and an editorial. Most of the advertisements were placed by a group, opposed to the UAW, called the "Concerned Employees" of Respondent. The members of this group are unidentified in the record. There is no showing that the "Concerned Employees" was fostered or in any material way supported by Respondent, and the complaint does not so allege. The complaint does allege, however, that certain advertisements placed by the "Concerned Employees" were used and adopted by Respondent in the course of the preelection campaign, and that to the extent that the advertisements were themselves of a threatening nature, Respondent thereby engaged in coercive conduct. Respon- dent placed only two ads in a local newspaper prior to the election. The complaint does not specifically allege that publication of these two ads was itself violative of the Act. It seems appropriate to describe here the seven joint exhibits, since they are implicated in the complaint allegations and objections to be hereafter discussed. Joint Exhibit I is the January 8, 1976, issue of "The Hartwell Sun." The parties stipulated that "The Sun," a weekly, is the only newspaper in Hart County, is "widely distributed" there, and is the official organ for legal notices. The relevant material from the January 8 issue is the lead article on page one, which describes speeches made by Respondent's attorney, John Tate, who was, as he testified, "in charge" of Respondent's election campaign. The 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speeches were made on January 5 to "two informal meetings of business and industrial leaders in Hartwell." 2 The article states that Tate appeared before these informal groups to give them an "up-date on the union situation" and told them about the election scheduled for January 29- 30. The article directly quotes Tate as saying, "The UAW has wanted to place on Hartwell the same type contract they placed on MAECO when the plant was in Monroe, Mich., but that contract caused MAECO to nearly bankrupt and caused them to leave Monroe, Mich. and come to Hartwell. The Union had made it impossible to operate profitably, and it was either close the operation in Monroe, Mich. and move it to a suitable location (Hartwell) or continue under the union and be forced to close permanently."3 The article goes on to say, "Tate pointed out that at the time of moving the manufacturing operation from Monroe, Mich. to Hartwell, that some 1,200 people were employed there and that only 81 remained after the plant was closed. Today only 50 of that 1,200 remain on the employee list. During a ques- tion/answer period, Tate said the annual payroll at MAECO in Hartwell is over $6 million, and that U. S. Chamber of Commerce studies show that for every dollar earned in a community, that it is circulated six times. 'Keeping this in mind,' he said, 'this means that Hartwell's MAECO plant is responsible for circulating some $36 million annually, not to mention the fact that it employs nearly 900 persons.' "4 Tate was further quoted as follows: Because of labor relations such as this, there are many towns and communities throughout the nation that new industry will never locate, and this is one of the first questions a new industry will inquire about when they are considering locating a plant in a particular community.5 The article goes on to say that Respondent presently has plants in Paragould, Arkansas, Cozad, Nebraska, and Canada and other countries. It states, "Expansion of the Paragould plant is now underway, and it is reported that this expansion was originally scheduled for Hartwell but changed due to labor relations at this plant." 6 The final two paragraphs of the article read as follows: When questioned about MAECO's plans, if the employees choose not to be represented by either union, Tate said that many dramatic changes will be made immediately if the unions are defeated on the 29th. Although Tate, during his remarks and during the question/answer session, would not tell of Monroe's I The General Counsel acknowledged at the heanng that he was not specifically relying on this article. The January 8 issue of the Sun is not specifically referred to in the election objections, although other issues of the Sun are expressly mentioned; counsel for the Charging Party asserted, however, that it was relevant. At the hearing, counsel for Respondent stipulated that direct quotations of Mr. Tate and plant manager Fox in Joint Exhibits 2, 4, 5. 6, and 7 are accurate, but stated that direct quotations attributed to Tate in Joint Exhibit 3 are inaccurate. He took no position as to Joint Exhibit I at the time. Counsel also took the flat position that he could not stipulate that any of the paraphrased statements attributed to Tate or any other company official in any of the exhibits were accurate. plans if the employees do elect a union on the 29th, he did say, 'look at the Monroe, Michigan plant . . . it died because of demands made by the union.' 7 Joint Exhibit 2 is the January 15 issue of The Sun. It contains two relevant advertisements. The first is a 1/3- page ad with black printing on a yellow background, placed by the "Concerned Employees." The official registered logo of the Monroe Company appears at the top. The principal headline is "Time To Decide YOUR FUTURE." In adjoining boxes it contains a comparison between "Union" and "Company," including a contrast between "Possible Strikes which Cost Money and can result in loss of business and Loss of Jobs" and "No Strikes ... Real job security." In the same issue, the "Concerned Employees" inserted a full page ad, black print on a yellow background, with the headline "Who Says It Can't Happen Here???" At the top of the page is a picture of what purports to be the manufacturing plant of Respondent which was located in Hillsdale, Michigan, and which was closed in 1960. A large "X" appears on the photograph. The text of the article discusses a statement, blaming the Union for the closure, attributed to the former president of the UAW Local at Hillsdale. The text states, inter alia, "Some people seem to think this can't happen in Hartwell. It CAN!!" In the middle of the paper, in large print, appear the words "Will This Happen In Hartwell Too??" Below that caption is a picture of the Hartwell plant. On each side of the picture appear three question marks. Joint Exhibit 3 is an article entitled "Union Decision Pending In Hartwell," which appeared in the January 19 issue of "The Anderson Independent." "The Independent" is located in Anderson, South Carolina, about 23 miles from Hartwell, and, as will be noted in connection with Joint Exhibit 7, probably has wide circulation in Hartwell. The article, written by Barbara Neuner, is based on an interview with Tate. The article states, in its second paragraph, "The outcome of that decision apparently could determine the future of the Hartwell plant which employs more than 800 area workers." It goes on to say, "Union opponents emphasize that MAECO closed its plant near Monroe, Mich. in 1960 because of problems with union negotiations. They say the same thing will happen in Hartwell if the work force is organized." The article states that attorney Tate "would not say specifically if the plant will close if a union wins the Jan. 29 election. He does say that other MAECO plants have been closed for that reason." The article then reports that "a UAW work stoppage at the Michigan plant was a major factor in that plant's eventual bankruptcy." It quotes Tate as saying, "Monroe was almost bankrupt in 1956 because of the unions." 3 Tate, at the hearing. did not deny the accuracy of this reportage. 4 At the hearing, Tate confirmed that he had made the foregoing statements. 5 Tate was not asked whether or not he said this. 6 At the hearing, Tate denied that he had made the foregoing statement. It does not necessarily appear to be an attempt to record a statement made by Tate to the groups, but rather might be construed as an editorial insertion. I At the heanng, Tate was not asked about the foregoing statements. 744 MONROE AUTO EQUIPMENT COMPANY Tate testified that the article misrepresents what he told Neuner, and that, after its publication, he had a 2-3 hour meeting with her in an attempt to give her a more precise understanding of the situation. According to Tate, Neuner told him that in future articles she would more accurately characterize his position. Tate made no effort to notify employees that the article misrepresented his attitude or the history of the Company. 8 Joint Exhibit 4 consists of three relevant advertisements from the January 22 edition of "The Hartwell Sun." The first is a full page ad placed by the "Concerned Employ- ees," again using the Monroe logo, which tells employees that they are free to vote "no" even if they have signed a union card or been a union member. The second ad was also placed by the "Concerned Employees"; it attempts to rebut the asserted claim that there are no opportunities for seniority advancement at the plant by setting forth a precise history of nine items of information, including dates, relating to the 16-year employment career of E. D. Nannie, the chairman of the employee negotiating committee. The source of this information is mysterious. Tate and George Roper, Respondent's industrial relations manger, testified that they considered this information, insofar as it was con- tained in Nannie's personnel file, to be confidential, and they testified that they had not released it to any employees. Tate further testified that an investigation had been made which disclosed that the locks on the personnel files had not been tampered with. Nannie testified that the information given was in some respects erroneous. The final item in Joint Exhibit 4 is a full page ad placed by Respondent, consisting of 24 questions and answers relating to the campaign. This will be discussed in more detail hereafter. Joint Erhibit 5 consists of relevant pages from the January 29 issue of "The Hartwell Sun." The entire front page is a story on the election, entitled, "Ballots To Decide MAECO Fate." The lead sentence states that the employ- ees would "cast ballots today and tonight which could well decide the fate of the county's largest single industry." The second sentence reads, "Although Monroe Auto officials declined to comment on the plant's future if the union is again voted in, the fact remains that Monroe Auto did close its production operations in Michigan and move to Hartwell after the union demands forced the company to near bankruptcy in the 50's." 9 Following this is a direct quotation of a statement by Tate that "during my 30 years as a labor attorney I have never signed a contract with the United Auto Workers Union (UAW). It's not that we don't want to enter into a contract, but the UAW has never presented a proposal we could live with and one which I felt would not be detrimental to the successful operation of the company." The article goes on to discuss a recapitulation by Tate of the benefits being received by employees. Note is taken of an agency shop bill pending in the Georgia legislature which would assertedly "leave no employee of a company " Indeed, the record is clear that Respondent made no efiort to directly notily employees that any of the items referred to here contained erroneous material. 9 The editor of "The Sun" testified that he received the foregoing informatlin "in general conversation with Mr. Tate, management., employ- ees. under union domination without 'fees' to be paid to the union." The article then refers to "talk" sessions which Tate had been having for the past 2 weeks with "employees who have requested them and those sent by their foreman." It describes in part the manner in which Tate conducted these sessions. It notes, inter alia, that employees at the sessions had repeatedly complained about a lack of communication with management and that Tate, "in hearing several specific problems, agreed with the employ- ees and said that corrective measures have already been put into motion, and that the company plans to continue to put more emphasis on personnel relations which will make Monroe Auto a better place to work." It further states that Tate advised every employee participating in the sessions that they could turn to the National Labor Relations Board in Atlanta if they did not get satisfaction at the plant; Tate is quoted as saying, "An employee does not need a union to represent them because of problems, because the NLRB is available to every employed person at Monroe." 10 Accompanying the front page article is a red-tinted picture of the Hartwell plant with a large black "X" across it, captioned "Will Monroe Auto In Hartwell Face The Same Fate As The Plant In Michigan?" Beneath that is a sample reproduction of the ballot to be used in the election. The second page of the paper contains an editorial by Editor Bill Bridges entitled "Day of Decision." The editorial leads off by stating that January 29 would be recorded in history "as a day when 750 citizens decided the fate of their company in this community ... Monroe Auto Equipment Company . . . and to a great degree they will decide whether or not Hart County will continue to be progressive." It then asserts that communities with labor problems have usually fallen by the wayside and that there are many communities without industries and without labor problems which are anxious to attract industry. It goes on to state that the experience of the past 10 years has shown that having a union is not the best way to ensure progress: "Instead, the dark cloud of union domination has caused expansion restriction of present facilities at the Monroe plant." It also indicates that the "laws governing what a company can or cannot do while negotiating with the union" has meant that "little has been done in the area of increased employee benefits. .... but Monroe officials indicate that several meaningful things are on the 'drawing board' for immediate attention if the employees choose to be their own representatives once again." Further on, Bridges asks: On the other hand, why should they continue to operate this plant under the 'dark cloud' caused by unions.... why shouldn't they pack up and move.... just like they did when the union took Monroe to the brink of bankruptcy in Michigan? By moving to Hartwell, where there was a 'climate' of togetherness, the Monroe Company succeeded in becoming the world leader in the manufacture of shock I0 The editor of "The Sun" testified that he was in charge of contacting Tale for such stories, and that the articles were "accurate reflections" of Tate's comments. Tate did not testify on this subjectl 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absorbers ... and they did it only after they removed themselves from union domination. Bridges then discussed the size of the Hartwell payroll, $6 million, which was "a payroll many communities would welcome." He talked about the "track record" of unions in recent years which, for the most part, has been "causing strikes and closing plants." Strikes, he noted, "leave many unemployed . . . not only temporarily, but many perma- nently." Unemployment compensation is not available to strikers, which raises the question of how employees who participate in a strike can support their families. Bridges continued: Another important item to be considered by those persons who feel unions are their 'salvation' and their only means to 'better living' is that union demands many times force companies 'out of business' and out of a community (just as UAW did to Monroe Auto Company in Michigan). This leaves many individuals and their families without an income, and in a community where there are no vacant jobs. And even if there were vacant jobs, how many employers would seriously consider hiring someone who has been an active supporter of a union which closed another plant in the same community.... a plant that had been loyal to the employee and his family for years before the employee helped cause it to collapse? In closing, Bridges stated: Success started in Hartwell for Monroe Auto, and the fate of this plant will toll at 12:30 a.m. tomorrow ... when the ballot box closes. The way to insure continued success at Monroe Auto in Hartwell is for the majority of the employees to cast their vote in the NEITHER box. This will again put Monroe Auto and the employees therein on a one-to- one basis. . . . and will remove the 'dark cloud' caused by unions. Think about it . our future depends on your vote! On the same page as the editorial is a cartoon headlined "History Does Repeat Itself." It shows a building labeled "New York Herald Tribune," with a "Closed Forever" sign on its door. The text of the cartoon states that the "Herald Tribune" went out of business due to a printers strike, and "Over 800 employees were left without jobs when the Tribune ceased all business operations." On the same page is an article entitled "Some Call It, 'Getting Even,'" which discusses the union situation and ends with a parable indicating that dissatisfied employees can cause their own destruction. Finally, on that same page is an article called "'Free' Speech and The Union," which discusses the litigation challenging a union-security clause as applied to television commentators. Page 4 of the exhibit is a full page ad, again using the Monroe logo, placed by the "Concerned Employees," much like the January 22 ad, in which the employees are told that they are free to vote against a union even if they have signed a union card or been a member. The ad contains a reproduction of a sample official ballot with an "X" marked in the "NEITHER" block. Page IC of the January 29 issue contains the other ad placed by Respondent. Its theme is that "It's IMPORTANT" that the employees understand three things. The first is that "The Union Cannot Make The Company Do Anything"; for this proposition, Section 8(d) of the Act is quoted. The second matter of importance is that "The Union Could Cause You To LOSE YOUR JOB." The text, in small print, contains an excerpt from a "Layman's Guide to Basic Labor Law" prepared by the General Counsel of the NLRB. It explains the rights of employees and employers in an economic strike and states that if replacements are hired, strikers are "not entitled to reinstatement." It also then notes, however, that the Supreme Court has held that economic strikers are entitled to reinstatement only when their jobs become available. The third important item is that "Unions Often Cause Employees A LOT OF TROUBLE and COST THEM A LOT Of Money By Fines (hundreds of dollars) Assessments And 'Special Levies.'" Summaries of two Board cases are set out. Another example of "a lot of trouble" is "union caused discharge and loss of seniority," and a Board case relating to an employee who was laid off because of his failure to pay dues is discussed. Finally, on page 12C, there appears a full page ad placed by the "Concerned Employees." It is quite similar to the "Who Says It Can't Happen Here???" advertisement placed by the same group on January 15, containing pictures of the Michigan plant with an "X" through it and of the Hartwell plant. However, instead of the January 15 legend above the picture of the Hartwell plant-"Will This Happen In Hartwell Too??"-appear the words "DON'T Let This Happen In HARTWELL Too!!" at the bottom of the page is a reproduction of the Board ballot with the "NEITHER" box marked. Joint Exhibit 6 is a copy of "The Hartwell Sun" for December 4, 1975. Apparently the first publicity given by "The Sun" to the filing of a petition, it is a straightforward account of the applicable procedure. However, it also contains the following paragraph referring to plant manag- er Malcolm Fox: Fox said the bargaining requirements have placed many restrictions on things he wanted to do and hoped the employees would vote no union and provide him an opportunity to initiate some programs he had formulat- ed. Respondent refused to stipulate that this paraphrase of Fox's remarks was accurate, as opposed to another direct quotation of Fox which Respondent agreed was correct. Fox did not testify, but editor Bridges testified that the articles referring to Tate and Fox contained "accurate reflections" of what they had said. General Counsel stated that he was not relying on this exhibit. The objections do not expressly mention this issue of "The Sun." At hearing, counsel for the Charging Party said that he regarded the material as "background information." 746 MONROE AUTO EQUIPMENT COMPANY Joint Exhibit 7 is the January 25 edition of "The Anderson Independent." I earlier noted that it seemed probable that "The Anderson Independent," published 23 miles from Hartwell, was widely circulated in Hartwell; I infer this from the fact that a story on the Monroe election is the lead article on the first page of this 32-page Sunday edition. The headline reads, "Hart Firm Heads For Union Showdown." It contains two connected articles, one entitled "Lawyer Says No," and the other entitled "Work- ers Say Yes." The first article is an interview with attorney Tate. It states that Tate "has a long history of fighting unions. He received his first real blow as a young teenager clubbed over the head for trying to cross a picket line to earn his 25-cents hourly wage." The article contains the following language: Legally, Tate can't say what will happen at the plant if the UAW wins Thursday's election. Rumors say the plant will close-Tate says only that he doesn't know that it will, but thinks he 'probably would have heard about it.' On the other hand, he makes the point clear that the plant could close in Hartwell as they have in other areas of the country when agreements could not be reached with UAW. Nor can Tate say what changes he could offer the employees if neither union wins the election. 'It would be helpful if we could make promises,' he says. But Tate points to the difference in an employer's attitude when an employee threatens him and when the spirit is cooperative. And, he asks, why should the company increase benefits and give the credit to a union? 'We're not interested in doing something UAW can take credit for,' he says. Tate testified only that the statement that "the plant could close in Hartwell as they have in other areas of the country when agreements could not be reached with UAW" was not an accurate paraphrase of his remarks to the reporter. He conceded that he did tell her that "it makes me mad for the unions to say a plant can't close because a plant can close if it has no relation to union activities." He stated that after the January 25 article appeared, he tried to reach the reporter and left a message for her to get in touch with him. His purpose was to get a retraction; however, the reporter never contacted him. The reporter was the same one who had, as Tate asserted, misrepresented his remarks in an article of January 19, after which he had met with her for 2 or 3 hours to try to clarify his position. Although Tate testified that he was trying to get a newspaper retraction, when asked why he did not post a retraction on the plant bulletin boards, he answered, "because I thought it would be more confusing than helpful and still do." He did not explain at the hearing why a newspaper retraction would have been less confus- ing than a bulletin board retraction. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Promise of Benefits to Franks Employee Bobby R. Franks testified that about a week before the election, he approached Third Shift Supervisor Douglas Casey about an assembly line problem. Casey was discussing the election with an employee, and Franks left. A few hours later, Casey came to the work station of Franks, who wore a UAW button, and said, "if we got this, got rid of the UAW, that the company would increase the pay raises, sick leave and holidays." Franks replied, in effect, that he did not think the company would do anything for the employees; Casey said "trust the compa- ny, and they would come through for us." After the election, Casey came to see Franks to thank him for his trust and to say the company would "come through" with its promises. After the election, the employees were given an extra holiday in April. They also received an increase in their insurance benefits in August, were given sick leave for the first time effective in December, and got a 30-cent raise in August and another 5 percent raise in December. Accord- ing to General Counsel, the Union agreed to these benefits. The record indicates that in the prior 4-5 years, employees had received increases around August of each year, but there is no indication that they had received new categories of benefits such as the sick leave at that time or any other time, or that they had been given additional benefits in previous Decembers. The complaint does not allege that the foregoing improvements were violative of the Act. Casey testified that he never had an individual conversa- tion with Franks about the election. He did recall joining a discussion about the Union with 4 or 5 employees about 7 or 10 days before the election, in which Franks participat- ed. Franks appeared to be an honest witness. Casey, whose testimony on cross-examination was contradictory, was not impressive. I prefer Franks' testimony, and accordingly conclude that on or about January 22, 1976, Respondent violated Section 8(aXl) by promising an employee in- creased benefits if he voted against the UAW. B. The Threat to Saylers Billy Saylers testified that in December, he went to the office of supervisor Rufus Barnes to get a work order. Production Supervisor Benny Reid was present. Barnes asked him something to the effect of "are you going to vote the right way?" Saylers made no reply. Barnes said that "if the union was voted in, that the plant would close and nobody would have a job." Reid said only that "he could not say what would happen if the union was voted in." After some hesitation at hearing, Saylers recalled that Barnes said the reason Respondent closed its Michigan plant was "because of the union." Saylers' pretrial affidavit was less certain; it stated, "I got the impression-I think [Barnes] said the plant would close if the union came in. I'm not sure of exactly what words he used." Neither Barnes nor Reid testified, and no reason was advanced for their failure to appear. Saylers' demeanor was extremely impressive. I credit him and find that in 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 1975, Respondent threatened an employee with possible plant closure in the event of a union victory in the election. C. Respondent's Display and Distribution of "The Hartwell Sun" Tommy Crowe, an election observer and a member of the Union bargaining committee, testified that on three occasions prior to the election, she saw Supervisor Jerry Bennett in the plant with 3 or 4 copies of "The Hartwell Sun." On the evening of January 14, she saw Bennett, during a break, bring copies of the January 15 issue to his desk from the direction of Supervisor Feltman's office. When the break whistle blew, and some 10-12 employees in Crowe's department returned to their work stations at a machine, Bennett carried the papers to the machine, laid them down in front of the employees, and showed them a yellow page. Thereafter, Crowe saw employees reading the papers during the evening. Crowe saw Bennett perform the same routine on the evening of January 21, using the January 22 issue of "The Sun"; on that occasion, Bennett was "pointing specific items" to employee Cindy Brown from the paper. Again, on January 28, Bennett showed the employees the January 29 issue when they were assembled at their machine. Bennett denied that he had ever brought newspapers into the plant or distributed them to employees. He also testified that the office of Feltman, his immediate supervi- sor, is locked at 5:00 p.m. I was generally unimpressed by Bennett. Crowe made a most favorable appearance. I do not believe she construct- ed these events out of whole cloth. I therefore credit Crowe's testimony." The complaint alleges that Respondent, by its agent, violated the Act on January 14, 21, and 28, in that Bennett "threatened employees with plant closure if the Union continued to be the collective-bargaining representative of its employees by bringing into the plant and distributing to its employees copies of 'The Hartwell Sun' newspaper containing such threats." The January 15 issue contains the yellow-colored 1/3-page ad placed by the "Concerned Employees" which listed the adverse consequences of unionism. While hard-hitting, it is difficult to say that the ad is threatening. It also contains the full page, yellow- colored ad placed by the "Concerned Employees" showing the Michigan plant with an "X" across it, and attributing the closure to the Union, bearing the legend "Will This Happen In Hartwell Too???" This ad is clearly threatening. While Crowe could only testify that she saw Bennett show the employees a "yellow" page, there is every reason to believe, given the presumed nature of his mission, that he showed them the latter ad. Furthermore, even if he did not specifically do so, he made the papers available to the employees for their perusal, and the full page ad could hardly have escaped their notice. The January 22 issue contains the "questions and answers" ad published by Respondent. I find, as later discussed, that this ad clearly conveys a message that the " I have taken into account Crowe's denial of "making any statements" for the Union prior to the election. The fact that she gave an interview to "The Anderson Independent" probably did not occur to her as falling plant might be closed if the employees should vote for the Union. The January 29 issue contains, inter alia, the "Concerned Employees" ad again showing the "X"-ed out Michigan plant with the headline, "DON'T Let This Happen In HARTWELL Too! !" A photograph of the Hartwell plant with an "X" across it appears on the front page, and the front page story, as well as the "Day of Decision" editorial and the cartoon referring to the demise of "The New York Herald Tribune," also appear. Both separately and cumu- latively, these items carry a message of impending doom for the plant. By exhibiting and ostentatiously making available to employees the foregoing newspapers, Bennett made it plain that Respondent was adopting and sponsoring their threatening message. In doing so, he violated Section 8(a)(1) as alleged. D. The Coercive Interrogation of and Promise of Benefits to, Brooks Employee Garland Brooks testified that "somewhere around or before November 25th," Supervisor Jerry Bennett asked him if he had received a letter from the Allied Industrial Union. Brooks said he had, and, when asked his opinion of it, said he thought it came "straight from Mr. Tate." Bennett asked if Brooks was a member of the Union and what he thought about it. Brooks said he thought the Union could help the plant. Either "at this time, or another conversation," Supervisor Bennett said he thought the Union had been "a benefit in some ways," but it was time for an election to "see how the people felt and see if they couldn't get the union out and give Monroe a chance to help the people." If the latter remarks were made in a second conversation, it occurred when Bennett came to see Brooks during working hours about 3 weeks before the election. Brooks, whose health is poor, became noticeably ill during direct examination, and counsel for Respondent considerately waived cross-examination. Bennett denied ever having had a conversation with Brooks about unions. He said it was "common knowledge" that Brooks favored the Union. I found Brooks to be most believable, and I was not impressed by Bennett, whose testimony on several matters seemed doubtful. I conclude, therefore, that on or about November 25, 1975, Respondent violated Section 8(a)(1) by coercively interrogating an employee about his union adherence and sympathies, and, on or about November 25, 1975, or January 8, 1976, by impliedly promising an employee increased benefits if he voted against the Union in the forthcoming election. E. The Appearance of Hartwell Sun Advertisements on Plant Property Employees Franks and Crowe testified that they saw some of the advertisements from "The Sun" posted on, in, within the context of a question about whether she had engaged in "campaigning for the Union." 748 MONROE AUTO EQUIPMENT COMPANY or near the plant bulletin board for short periods of time not long before the election. Attorney Tate said that, with the exception of January 27 and 28, he was in Hartwell from January 19 until the election ended on January 30. Every night, he would inspect the plant bulletin boards, which, he testified, are not locked, to assure that the official election notices were not covered. He thought that there were one or two newspaper articles posted on a bulletin board near the employee entrance, and he took them down. The evidence at best established that the ads appeared for short periods of time, which corresponds to Tate's testimony that he removed some ads. Tate testified that the bulletin boards, although covered with glass, are not locked, and Franks' testimony does not satisfactorily establish that a key was needed to open the glass.12 I do not believe that I can conclude, on this evidence, that agents of Respondent authorized or facilitated the placement of the ads seen by Crowe and Franks. F. The Meetings Between Tate and Employees Employee Eddie Thornton testified that a few days before the election, a foreman asked him to go to a conference room next to the plant manager's office, where he found Tate, Industrial Relations Manager Roper, and about 15 other employees. Tate spoke to them of the dues collected by the UAW, and "went on to state how the UAW caused the plant in Michigan to close down and said, he wasn't saying that this was going to happen in Hartwell, but he said it was a possibility if the election went to UAW. The UAW would, they couldn't accept the contract that they offered them." Tate showed the employees a newspaper with a picture of the closed Michigan plant crossed by an "X." Tate mentioned having received a letter contending that the plant depicted in the photograph was a cotton mill, and he insisted that it was, indeed, the former Monroe plant. He also asked the employees to give the plant manager "another year, that things would be better in the plant, better benefits and so forth." Tate stated, when asked, that he could not lawfully specify the benefits, but "he would guarantee that there would be some changes in the plant." Tate further said that Respondent had been awarded some new contracts and "it would be an increase of about 200 employees there at the plant if the union didn't come in," which would improve the seniority, and hence the security, of the present employees. Tate warned, however, that the contracts would be assigned elsewhere if the Union won the election. Thornton denied that Tate showed the employees the "Questions and Answers" ad placed by Respondent in the January 22 issue of "The Sun." He did recall Tate telling them that they were free to leave at any time. He also recalled Tate informing the employees about the election procedure. The whole process took about an hour. Employee Lettie Jordan was told to report to a meeting with Tate about 2 weeks before the election. She had not 12 "You undo two locks on each side of it, more or less with your thumb, and they either raise up or come down and have hinges on them." '' Roper testified, on the other hand, that the supervisors were directed to spread the word that all employees "who wanted to attend these meetings and ask questions were welcome to do so." asked to attend any such meeting. Among other things, Tate showed the 10 employees a picture of a plant with an "X" on it; it was not, however, a newspaper photograph. Tate identified it as a former plant of Respondent's and spoke of "the plant going down after the union came in and it finally closed down." Tate also asked the employees to get at least 10 names of "some of the people we thought wasn't for the UAW and hand them back into the office . [t ]o determine how they stood." While Jordan testified that there had been discussion of new contracts, she did not say that Tate had attached any conditions to the work being done at Hartwell. Tate testified that he personally held meetings with employees to "try to avoid objections again." The meetings were held in a small personnel office. While the number of employees present at the meetings ranged from I or 2 to 20, the average was between 10-20. Tate estimated that he met with a total of 350 employees. He said that he had originally intended to meet with only 50 or 60 employees who had posed questions to supervisors, and he talked to those employees in early January. Subsequently, industrial relations manager Roper told him that "a lot of people were pretty mad" about not being given a chance to speak with Tate. Arrangements were made to talk to these employees, but more kept insisting on seeing Tate, and Tate accommodated them.13 Tate described his standard speech. He would begin by telling employees that they were free to leave, and that no notes or recordings would be made. He would then discuss the election procedure and the secrecy of the ballot. He would go on to note the laws restricting the company's right to make promises, as opposed to the Union's freedom to do so. He would say, "I know it could be real good here, I wish we could." He further would state "that it made me angry as the dickens that the Union had made the statement that Monroe couldn't close the plant. In fact, I said, that's a lie."14 He explained that, under the law, a plant could be closed "for no reason or any reason, so long as it's not related to union activities." After this, said Tate, there would often be questions about what Respondent would give the employees. He would point out again that he could make no promises, and also say that he could make no threats: "And I said, now, you heard me say a minute ago, how perturbed it made me that somebody said we couldn't close the plant. I want you to be sure and understand that I have no reason to believe that Monroe will close its plant. Business is picking up .. ..' 5 The new wave of smaller cars actually required more complex shock absorbers. While Tate was not in charge of deciding which plants would expand, he thought Respondent would expand all the plants. "I did say in one or two, if you were the president, though, you might [ask?] your ownself where you would be most likely to put your expansions if you didn't put them in all three." Tate subsequently explained at hearing that this was said in context of the fact that the Hartwell plant had expanded and was considered the most efficient. "4 At this point in his testimonial account, the witness spoke in a loud voice and banged his hand sharply on the witness stand. 1' Tate's testimony seems to indicate that this mollifying comment would only be made if provoked by a question. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In response to questions in "probably half of the meetings" about Respondent's history, Tate would say that in the 1950's, Respondent was almost bankrupt until it opened the Hartwell plant, which succeeded because of the "good feeling of the people and the productivity of the people." Employment at Hartwell had increased and the facilities had been enlarged; "what would happen in the future, I couldn't promise, but I had no reason to think it wouldn't continue." He would then discuss the UAW membership card, its constitution, and the moneys collect- ed by the Union. Thereafter, he would refer to the progress made by Respondent in minority hiring and promotion. He would then ask that the company be given a year as "a matter of trust": "I can't promise you anything, I've made that clear, but you know, Malcolm Fox has never really operated down here without having a union, a union cloud over his head the entire time he's been manager." Tate denied showing employees either a photograph or a newspaper ad depicting the closed plant; however, he "several times" suggested that employees study the "Ques- tions and Answers" ad which Respondent placed in "The Sun" on January 22, and displayed the ad. Tate also denied asking employees to get the names of 10 antiunion employees, but testified that he sometimes said, when employees expressed antiunion sentiments, that there would be no problem if such employees "were interested enough to go out and get ten people to do what you think is right." He further answered in the negative a question whether he told employees that the company would not expand "if it signed a collective-bargaining agreement with the Union." The most clearcut point of departure between Thornton and Jordan, on the one hand, and Tate, on the other, is the disputed matter of Tate's use of a picture of the closed Michigan plant. Jordan testified that he showed the employees in her group a photograph, and Thornton said Tate displayed a newspaper ad containing the picture. Tate denied exhibiting either. I thought Thornton and Jordan seemed quite credible, and Thornton's description of Tate's discussion of a letter alleging that the depicted plant was in fact a cotton mill did not seem to be the kind of fabrication of which Thornton would have been capable. That Jordan's group would have been shown a photograph rather than an ad is consistent with Tate's testimony that, according to company records, Jordan was part of a group he met with on January 5 or 6, prior to the first appearance (January 15) in the current campaign of an ad showing the closed plant.' 6 Tate was a facile witness, but appeared very quick to assert and quick to retract. On at least five occasions, he changed or contradicted his testimony. An example of such contradiction occurred when Tate was asked whether he took steps to ascertain from "The Sun" its source of information for the Nannie ad. Tate said, "We called them and they said, it's none of your business." One page later, again asked if he had inquired of "The Sun" who had given 1i As previously indicated, a similar ad had appeared in "The Sun" in the 1964 election. I7 There is no inconsistency in finding both a threat of plant closure and a threat that the plant will not be expanded. Obviously, Tate did not in so many words definitively state that the plant would close down if the Union won. Thornton in fact conceded that Tate said "he wasn't saying that this it the data, he replied, "No, I did not," and that he did not know if Roper had; he explained that he did not ask Editor Bridges who had placed the ad because the question might interfere with the Section 7 rights of employees. Respondent's brief contends that it would be "illogical and irrational" to believe that an experienced labor practitioner like Tate would have made the statements attributed to him. I recognize the margin for error in accounts of such speeches given by employees. I also believe, however, that Tate was willing to take chances which others might not. He seems to genuinely oppose the principle of unionization; he conceded the accuracy of "The Anderson Independent" account that he was injured as a youth crossing a picket line. He also seemed easily moved to impetuosity and anger; he admitted that, as part of the standard speech, he would say loudly and forcefully, complete with a banging of his hand on the table, that "it made me angry as the dickens that the Union had made the statement that Monroe couldn't close the plant. In fact, I said, that's a lie." Even though he would allegedly go on to qualify these remarks by saying the plant could be closed for "no reason or any reason, so long as it's not related to union activities," the fact that he gratuitously and angrily raised the question of plant closure, on the precariously frail pretext of responding to a union attempt to assure the employees that they would not lose their livelihood, would itself, given Monroe's background and the publicity about prior closure, seem to constitute the kind of "brinkman- ship," the kind of failure to "avoid [] conscious overstate- ments he has reason to believe will mislead his employees," condemned by the Supreme Court in N.LR.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 620 (1969). I think, in other words, particularly given my finding that Tate did display pictures of the closed Michigan plant to the groups of employees, that, as Thornton testified, Tate also very likely stated, perhaps more subtly but nonetheless conveying the idea, that "he wasn't saying this was going to happen in Hartwell, but he said it was a possibility if the election went to UAW." If, as I find, he did exhibit the picture, some such comment or insinuation would logically have accompanied it. I conclude that by Tate's exhibiting the picture to Jordan's group and to Thornton's group, telling Jordan's group "about the plant going down after the union came in and it finally closed down," and intimating to Thornton's group that there was a possibility that the same end could come to the Hartwell plant, Respondent violated Section 8(a)(I). I further accept the gist of Thornton's testimony that Tate indicated that Respondent might not assign any of the anticipated new contracts to Hartwell if the Union won the election, which prediction would plainly be perceived by the employees to be threatening, and which constitutes a violation of Section 8(a)(1).17 I do not believe, however, that the evidence supports the complaint allegation that Tate "solicited its employees to report the name of anti-union employees." Aside from the was going to happen in Hartwell." The vice is in the dangling of the Damoclean Sword-the suggested "possibility." Holding out that "possibili- ty" is consistent with another "possibility" that Respondent would, alternatively, deal adversely with expansion prospects of the plant should the Union prevail in the election. 750 MONROE AUTO EQUIPMENT COMPANY legal issue, raised by Respondent, as to whether such solicitation would constitute a violation of Section 8(a)(1), I suspect that Jordan simply misunderstood Tate's reference to the value of having 10 more antiunion employees for each one who demonstrated such a sentiment in the group. G. Respondent's Advertisement of January 22, 1976 On January 22, Respondent published in "The Hartwell Sun" a full page ad entitled "Questions-Answers." In my view, the advertisement is clearly coercive. The complaint, as Respondent notes in its brief, does not allege that publication of Respondent's advertisements constitutes an independent violation of the Act; the objections to the election, while referring to the January 22 issue, do not mention this ad, but rather another ad placed by the "Concerned Employees."18 Nonetheless, at the hearing, while the parties were presenting the Joint Exhibits, this advertisement was designated and agreed to as a relevant part of Joint Exhibit 4. Thus, the advertisement has been acknowledged as authentic and it is further stipulated that it was contained in the only, and "widely distributed," newspaper in the county. The applicable law is set out in Monroe Feed Store, 112 NLRB 1336, 1337: It is well established that when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint. In the present case, there does not appear to be any factual matter to be further litigated. Should Respondent disagree with my evaluation that the legal implications of this advertisement are flagrantly coercive, it may challenge my conclusions by argument to the Board, and thus is afforded due process. See Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973). ("Moreover, even if the complaint failed to refer at all to the application form questions, it would not prevent a finding that Respondent had violated the Act in this regard, inasmuch as the record shows that the Administrative Law Judge's factual findings concerning the questions were related to the general subject matter of the complaint and charge, the facts were fully litigated, and the Respondent did not object to testimony concerning them.") The January 22 advertisement purports to be in answer to "[m ]any questions [which] have been asked concerning unions and their impact on the lives of MAECO employ- ees, their families and the community as a whole." 19 The ad is signed by attorney Tate. Of the 24 questions and answers 2 expressly indicate that employees will not be discriminated against for their individual union activities. However, four of the questions and answers so clearly threaten the possibility of plant closure that I do not think even the well-worn adjective "thinly veiled" is appropriate here. "' Objections 9 and I , however, allege that Respondent. "through oral and written anti-union propaganda." threatened plant closure and indicated that the employees would lose benefits because of UAW representation. In its brief to me. Charging Party adverts to the matenal hereinafter discussed. These questions, the first two of which appear consecu- tively in the ad, read as follows: Q. What is this about closing the UAW plants in Michigan? A. It is true. All Michigan manufacturing facilities were closed and over 2,000 UAW employees lost their jobs at that time. About 51 assorted personnel are in the headquarters building. No production shocks are manufactured by Monroe Auto in Michigan. Q. The Union tells me that Monroe cannot legally close the Hartwell plant unless all of the other plants are losing money. Is that true? A. Untrue. The company has made no threats to close the Hartwell plant, but it can legally do so whether or not the other plants are making or losing money. * e * * Q. What does Monroe Auto Company's payroll mean to Hartwell and Hart County? A. It amounts to about $6,000,000.00 yearly, which the Commerce Department estimates turns over about six times to provide area earnings of about $36,000,000.00 yearly. Without it most schools and businesses, as well as many other institutions, would have a hard time staying open. * S * Q. If Monroe Auto closed its Hartwell plant, wouldn't some other company move right in? A. No one knows the answer. There are plants in the area which have been closed down and vacated because of labor unions. Other companies may avoid the area in order to avoid similar labor problems. Thus, the employees are told, in purported answer to "questions [which] have been asked," that the "U.A.W. plants" in Michigan were closed and "over 2,000 U.A.W. employees lost their jobs." They are then told that while the Company has "made no threats to close the Hartwell plant," it nonetheless "can legally do so whether or not the other plants are making or losing money." Tate refrained from asserting in this ad, as he says he did at the meetings with employees, that the Company was forbidden to close the plant for union-related reasons. The employees are next reminded that Respondent's payroll provides $36,000,000 yearly to the community, and are ominously cautioned that "[w]ithout it," "most schools and businesses," as well as many other institutions, "would have a hard time staying open." No explanation is given as to why such a chilling eventuality is being mentioned. Finally, the question is put, "If Monroe Auto closed its Hartwell plant, wouldn't some other company move right in?" Again, no reason for closing the plant is advanced, and such closure is treated almost as afait accompli. 19 It would be of interest to know who asked such questions as "'is it true that the last U.S. Department of Labor LM-2 reports showed that the U.A.W. union collected $622,326,559.00 in dues, fees and other income for the last year they reported?" 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The final two questions and answers set out above remove any doubt of Respondent's intention; they move past the question of closure as if it were a foregone conclusion, and survey the damage the employees will have perpetrated against themselves and their community. For the purpose of showing just how bleak the future will be once the plant closes, the employees are told that "no one knows the answer [to whether another company would move in]." They are notified that there "are plants in the are', which have been closed down and vacated because of labor unions," and there is no indication that Monroe may not be one of those plants. And after Monroe closes, "[o]ther companies may avoid the area in order to avoid similar labor problems." The plain import of such a question is not only to convey the message that Respon- dent may well close down, but also that after it has done so, the employees, having once selected a union, will have made the area repellent to other employers. Short of explicitly telling the employees that if they vote for the UAW, the Company will definitely close down, this wholly gratuitous, repetitious, emphatic concentration on plant closure and its effects seems to me to come as close to an express threat as is possible without saying the fatal words. This propaganda was plainly more directly coercive than that found unlawful in the Sinclair Company case decided in N.L.R.B. v. Gissel Packing Co., Inc., et al., supra. The employer's preelection messages in Sinclair, which the Supreme Court found to be a threat, at least suggested that the plant might close as a result of a strike. The questions and answers quoted above do not even indicate that Respondent might be forced out of business by prospective action of the Union; they simply imply a corporate decision to go elsewhere if the employees again vote for the Union. That the employees would not likely regard this as an idle and unrealistic threat is emphasized by the fact that this company did indeed close its Michigan "U.A.W. plants" after labor troubles there, at which time "over 2,000 U.A.W. employees lost their jobs," and the ad pointedly reminded the Hartwell employees of that fact, undoubtedly already known to them by virtue of the January 15 advertisement placed by the "Concerned Employees." In applying the test approved by the Court in Gissel Packing Co., supra, 395 U.S. at 619, "What did the speaker intend and the listener understand?," I think it eminently reasonable to conclude here, as the Court did there, that "the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities." I also conclude that certain of the questions and answers constituted an unlawful promise of benefits conditioned upon repudiation of the Union. As stated above, after exhausting every known legal recourse, Respondent began to bargain with the Union in December 1973 and continued to bargain until September 1975. No agreement was reached, and the Region has issued no complaint charging that the bargaining was conducted in bad faith. Nonetheless, certain questions and answers in the January 22 ad make it patent that the Union was the only obstacle to the employees receiving improved benefits. The follow- ing relevant questions and answers appear in the ad: Q. Why hasn't the Company instituted a program of sick leave and an improved pension program? A. It would be an unfair labor practice and against the law for the Hartwell Monroe plant to unilaterally institute such programs while negotiating with the U.A.W. Q. If the U.A.W. union has represented the Monroe Hartwell employees for 10 years, and has been UNSUCCESSFUL, why does anyone think they will be any more successful now? A. We don't believe they will. The facts indicate that the U.A.W. does not have support of the majority of Monroe employees. Q. What is this stuff about 'give the company a year'? A. Because Monroe Auto is prohibited by law from making any promises at all, Mr. Fox has asked the employees to ALL vote 'NEITHER' (no union) in the election on January 29th. Employees can then compare the almost 10 years of U.A.W. failure with their situation at the end of a year. Employees will then be free to go to the NLRB in Atlanta for another election for some other union or the U.A.W. or decide if they are better off NON-UNION. Q. Why were fringe benefits increased for salaried employees but not for hourly Hartwell employees? A. It would have been unlawful, illegal and contrary to NLRB rules and regulations for Monroe Auto to unilaterally increase benefits for its hourly employees while they were being represented by the U.A.W. Union. Technically speaking, of course, it would indeed be an unfair labor practice for Respondent to "unilaterally" improve benefits for employees represented by the Union. But even a cursory look at the thrust of the foregoing questions and answers would inescapably drive home to employees the point that they had no sick leave program, no improved pension program, no increased fringe benefits (as opposed to the salaried employees) because of the existence of the Union, and that they would not in any likelihood receive them until they ousted the Union: "Employees can then compare the almost 10 years of U.A.W. failure with their situation at the end of a year." A major element of Respondent's campaign was "give the company a year." Respondent could only have been saying, and the employees could only have understood, that, given a year of free rein, without the "union cloud" to which Tate referred in his testimony, the employees would receive the benefits which had been deliberately withheld from them because of the presence of the Union. On the basis of these questions and answers, I conclude that Respondent made illegal promises of benefits to employees conditioned on voting the Union out. V. THE OBJECTIONS IN CASE 10-RC-10543 Objection 1: This objection generally alleges unlawful promises of benefits and threats of reprisals. Based on the foregoing findings as to Franks, Saylers, Brooks, the 752 MONROE AUTO EQUIPMENT COMPANY distribution of "The Hartwell Sun" by Bennett, Tate's speeches to employees, and the January 22 advertisement, I conclude that the objection has merit. In addition, the Union proffered the testimony of employee Hoyt Pearson. Pearson testified that Supervisor Tom Cordell came to him about 3 days before the election and said he "had to know how I stood on this union business." Pearson praised the Union. Cordell asked "if I had any gripes for Monroe," and Pearson catalogued his complaints. Cordell "told me that all he knew was what was in the paper, that the UAW had closed a plant in Michigan." Pearson replied that "you could put anything in the paper." Cordell, without explanation, was not called. Although Pearson's testimony that his allegiance was inquired into seems questionable, in view of his display of a union button for a year, he made a good appearance and, in the absence of contradiction, I credit him. I find, accordingly, that on or about January 26, 1976, Cordell coercively interrogated and uttered an implied threat of plant closure to Pearson, as alleged in Objections I and 3. Objection 2. This objection alleges impropriety in the summoning of employees to the conferences with Tate in "places of authority in the plant." I do not believe that the evidence supports a finding that the locus of the campaign speeches, in one of the personnel offices, itself exerted a restraining influence on employees, and I would recom- mend that this objection be overruled. Objection 3. This objection alleges that Respondent unlawfully interrogated its employees. As discussed above, on the evidence given by Brooks and Pearson, I find this objection to have substance. Objections 4, 5, 6, 7, 12, and 13: These refer specifically to certain of the news articles, cartoons, editorial, and advertisements appearing in "The Hartwell Sun" editions of January 15, 22, and 29, and the news articles appearing in the January 19 and 25 issues of "The Anderson Independent." There is no evidence in the record to support a finding that the advertisements placed by the "Concerned Employ- ees" were sponsored by Respondent. It is obvious, however, that Respondent, in its January 22 ad, took full advantage of the propaganda placed by the "Concerned Employees" ("Q. What is this about closing the UAW plants in Michigan? A. It is true ... "). Similarly, there is no evidence that Respondent conspired with Bill Bridges, the editor of "The Hartwell Sun," to produce the frightening items appearing in his newspaper. Tate did, however, admit that "from time to time" he supplied materials to Bridges, and that he may have furnished Bridges with the copy of the Herald Tribune cartoon. Finally, no clear evidence establishes that Tate conspired with the reporter for "The Anderson Independent" to insert the threats of closing in the two articles appearing in that newspaper. It should be noted, however, that I am less than impressed with Tate's testimony that, because the January 19 article contained inaccuracies, Tate thereafter met the reporter and spoke to her for 2 or 3 hours to clarify his position, and that despite such clarification, the 20 I do not find. however, that the ad placed by the "Concerned Employees" relating to the career of E. D. Nannie is the sort of inaccuracies again appeared in her article of January 25. 1 am further bemused by Tate's testimony that although he made an earnest effort to get a newspaper retraction of what he considered to be a serious misstatement of his position, he thought that it would be "more confusing than helpful" to simply post notices in the plant clarifying the situation; his silence at this juncture may be compared with notices distributed to employees on 3 successive days in February regarding the effect of the Union's election objections on Respondent's right to grant immediate increases in benefits. But aside from questions of responsibility and agency, I think it clear that the propaganda appearing in the local newspapers inescapably prejudiced the ability of employ- ees to exercise their franchise without fear of reprisal. As the Regional Director held with regard to the 1964 election, I find that "such an atmosphere was engendered by the aforementioned publications so as to render a free and untrammeled election impossible." Utica-Herbrand Tool Division of Kelsey-Hayes Company, 145 NLRB 1717, 1719- 20 (1964); Universal Manufacturing Corporation of Missis- sippi, 156 NLRB 1459, 1466 (1966).20 Objection 8: In this objection, the Union alleges that Respondent, through "oral and written anti-union propa- ganda," stated that it would take a fixed position so that the only way the Union could accomplish anything would be by calling a strike. That might be inferred from some of the evidence, but there is, as these matters go, relatively little reference to striking. The dominant theme here was plant closing. I would not sustain this objection. Objection 9. Here the Union claims that Respondent, "through oral and written anti-union propaganda indicated that if the UAW won the NLRB election that the Hartwell, Georgia plant would be closed." Based on my findings as to, inter alia, Bennett's activities, Tate's lectures, and the January 22 advertisement, I believe the objection is supported. Objection 10: The claim here is that Respondent "initiated and pursued a program of soliciting grievances from individual employees concerning their jobs and working conditions." There is some evidence that Tate may have come close to doing this in his talks with the employees, but it is sufficiently unclear so as to warrant a recommendation that the objection be overruled. Objection 11: Here, the Union asserts that Respondent, "through oral and written anti-union propaganda stated that the UAW has caused the employees to lose benefits and that representation by UAW in the future would cause the employees to continue to lose benefits." In the sense that, as discussed above, the plain implication of the January 22 ad placed by Respondent was that the employees had "lost" benefits which they otherwise might have received by virtue of union representation, and would continue to do so, I find that there is merit to the objection. On the basis of the foregoing findings, I recommend that the election held on January 29-30, 1976, be set aside. misrepresentation which could substantially affect the results of the election. as alleged in Objection 13. 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vl. THE VIOLATION OF SECTION 8(A)(5) The complaint alleges that the unfair labor practices committed by Respondent "are so serious and substantial in character and effect as to warrant the entry of a remedial order requiring the Respondent to recognize and bargain with the Union." The theory of the General Counsel here is that the unfair labor practices committed by Respondent so precluded the possibility of a fair second election that still another exercise in democracy would, in this situation, be an exercise in futility. General Counsel would have the Board, based on a presumption of majority status arising from the Union's 1966 election victory and certification, set the election aside and, instead of directing a second election, order Respondent to resume recognition of the Union. There is clear and recent precedent for the remedy sought. As the General Counsel points out, in Automated Business Systems, 205 NLRB 532 (1973), remanded 497 F.2d 262 (C.A. 6, 1974), the Board, after setting aside a decertification election lost by the union, held that the presumption of continuing majority arising from the union's 19-year-old certification and bargaining history was a valid basis for concluding that the union enjoyed majority status. Applying Gissel Packing Co., supra, the Board further concluded that the employer's threats warranted issuance of a bargaining order. Accord, West- minster Community Hospital, Inc., 221 NLRB 185 (1975); Felsenthal Plastics, Inc. n/k/a/ Grede Plastics, a Division of Grede Foundries, Inc., 224 NLRB 1312 (1976). In its able brief, Respondent argues that the unit as to which General Counsel seeks a bargaining order is not an appropriate one. The complaint alleges that the appropri- ate bargaining unit is the one stipulated by the parties as appropriate in the 1966 election won by the Union: All production and maintenance employees including inspectors, truck drivers, leadmen and temporarily laid off employees, excluding factory-administrative clerks, quality control personnel, time study personnel, techni- cal-experimental department employees, production engineers, administrative personnel, office clerical employees, permanently laid off employees, watchmen and supervisors as defined in the Act. Respondent points out that the unit stipulated by the parties as appropriate in the January 1976 election was defined as follows: All production and maintenance employees employed by the Employer at its Hartwell, Georgia facility, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. This matter was not litigated at the hearing. On the face of the two unit descriptions, it would appear, as Respon- dent contends, that the most recent stipulated unit 21 It may well be that, at bottom, there is no difference in the classifications embraced by the two unit descriptions. The most recent unit description, which basically includes "All production and maintenance employees," may have been understood by the parties to exclude, by definition, those categories previously specifically referred to as excluded in the 1966 description. comprehends more categories of employees than the 1966 unit. As indicated, the record is silent as to the reasons for the change in the unit description. I have no inkling why the parties chose to vary the description. I see no reason, however, for concluding that the variations between the stipulations is an obstacle to finding that the earlier described unit is an appropriate one for bargaining at present. The 1966 unit was agreed by all parties at that time to be an appropriate one; it was the unit as to which the Court of Appeals for the Fifth Circuit enforced a bargaining order in 1973; and, although Respondent refused to so stipulate at the hearing, it presumably was the unit in which the parties were bargaining until September 1975. It seems to me that a presumption of appropriateness attaches to the 1966 unit, and the mere fact that, in 1976, the parties stipulated to a unit described in a different manner does not destroy or rebut that presumption. Cf. Morand Brothers Beverage Co., et al., 91 NLRB 409, 418 (1950).21 On quite similar facts, the Board reached the same conclusion in Automated Business Systems, supra, 205 NLRB at 537. I further conclude that the only appropriate remedial relief here is the entry of a bargaining order. In Gissel Packing Co., supra, the Court approved the use of such a remedy in cases in which the employer has engaged in practices which "have the tendency to undermine majority strength and impede the election processes," 395 U.S. at 614. In my view, there is no "possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies" in this case. Respondent has made it quite clear to employees that it has not yet accepted the notion that they have a right to collective representation.22 Prior to the 1976 election, Respondent engaged in what was most probably a very effective whipsaw campaign. It virtually pleaded with employees to give the Company a "year of trust" in which the Company could demonstrate just how beneficent it could be without a "union cloud" over its head. By doing so, it effectively affirmed that it would not do anything to improve the lot of employees until they forswore the Union, and that if they did so, they would be handsomely rewarded. At the hearing, when Tate mentioned that he had told employees the Company wanted to remove the "union cloud" over the plant manager's head, he explained, upon inquiry, that the "cloud" was the manager's inability to improve benefits for employees, and that the Company's practice during the period in which it recognized the Union was only to make yearly improvements in accordance with past practice. When asked why the Company would not, during negotiations, seek the Union's consent to making improvements in benefits over and above the established pattern, which would obviate the problem of unilateral action, attorney Tate made the shocking admission that 22 Earlier cases involving Respondent's resistance at the Hartwell plant are found at 159 NLRB 613, enfd. 392 F.2d 559 (C.A. 5); 169 NLRB 142, enfd. 420 F.2d 861 (C.A. 5). 754 MONROE AUTO EQUIPMENT COMPANY Respondent did not do so because it did not want the Union to get "credit" for such improvements. 23 The same point is made in the newspaper interview with Tate in "The Anderson Independent" on January 25: "And, [Tate] asks, why should the company increase benefits and give the credit to a union? 'We're not interested in doing something UAW can take credit for,' he says." Simultaneously, while the carrot of improved benefits was being dangled before the employees, the stick of plant removal was also being prominently displayed. Tate's exhibition of the photograph of the closed Michigan plant at the employee meetings must have profoundly moved the employees who witnessed this audiovisual presentation. Since Tate testified that he made essentially the same speech to all groups of employees with whom he met, it is probable that some 350 employees were subjected to this blatant threat. The January 22 advertisement placed by Respondent drove that threat home with considerable force.24 It should not be forgotten that the employee community here must have been acutely aware of the fact that this employer had indeed, as it stated in its January 22 ad, closed its "U.A.W. plants" in Michigan in the past, throwing "over 2,000 U.A.W. employees" out of work. In such a context, the language of the Board in Automated Business Systems, supra, 205 NLRB at 536, is particularly apposite: It needs no extended discussion or lengthy list of authorities to demonstrate that threats of probable plant closings are among the most serious and most flagrant interferences with the right of employees to decide for themselves the question of union representa- tion. A threat of moving the plant is intrinsically of almost equal coercive effect, and a threat of partial closing or transferring is only slightly, if at all, less coercive. In a certain practical sense, the threats of total or partial moving may well have been the most coercive to the employees involved here, because the knowledge or belief that Respondent could make such transfers to other of its own plants made the threats that much more believable. In my judgment, Respondent's conduct has made the likelihood of a fair second election impossible. On balance, the issuance of a bargaining order running to the UAW will most effectively secure the right of employees to choose a collective-bargaining representative. As General Counsel aptly points out, there is nothing permanent about such an order, Gissel Packing Co., supra., 395 U.S. at 613. It 2I This admitted intention to discredit the Union is far different from a simple withholding of benefits as part of an overall bargaining strategy. and undoubtedly itself constitutes unlawful discrimination. a2 Even if I were not to find that the January 22 advertisement constituted an independent violation of Sec. 8(a)(1). it would still be appropriate to consider its content in assessing the impact of Respondent's other conduct. .L R. B. v. Drives, Incorporated 440 F.2d 354. 363-364 (C.A. 7. 1971): Altman Camera Co.. Inc v. N.LR.B., 511 F.2d 319, 321 (C.A. 7. 1975). 25 The advent of the Allied Industrial Union is something of a mystery. During the preelection campaign. Respondent. as expressed in its January 22 ad. contended that "the U.A.W. used this independent union ploy as a means of trying to re-stimulate interest in the U.A.W." The UAW. on the other hand, accused the Company of introducing the independent union as should be noted that the fact that the issue of the Union's representational right is before us rests on what appears to be a happenstance-the petition filed by the Allied Industrial Union.2 5 Had the Allied Union not entered the scene, there is no reason to believe that Respondent would not still be recognizing and bargaining with the UAW. Given the circumstances of this case, I see no valid policy reason against simply requiring a restoration of that collective-bargaining relationship at this time. While the complaint contains no specific allegation of a violation of Section 8(aX5), it sets out all the basic elements of such a violation. In such circumstances, the Board has held, it is appropriate to make a finding that Section 8(a)(5) has been violated. Solboro Knitting Mills, Inc., 227 NLRB 738 (1977); Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976). Applying the principle adopted in Trading Port, Inc., 219 NLRB 298, 301 (1975), I would find that Respondent "embarked on a clear course of unlawful conduct" on January 5, 1976, when Tate began addressing groups of employees, and that the bargaining obligation should commence as of that date. CONCLUSIONS OF LAW i. Respondent is an employer engaged in interstate commerce within the meaning of the Act. 2. International Union, Automobile, Aerospace & Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of the Act. 3. By promising benefits to employee Franks on or about January 22, 1976; by threatening employee Saylers in December 1975; by displaying and distributing copies of "The Hartwell Sun" to employees on January 14, 21, and 28, 1976; by coercively interrogating employee Brooks on or about November 25, 1975, and by promising him increased benefits on or about November 25, 1975, or January 8, 1976; by threatening groups of employees in January 1976 with the possibility of plant closure and restriction of expansion; and by threatening and promising benefits to employees in its "Hartwell Sun" advertisement of January 22, 1976, Respondent violated Section 8(aX 1) of the Act. 4. The conduct of Respondent and third parties materially prejudiced the election held in Case 10-RC- 10543 on January 29-30, 1976, and the election should be set aside. 5. By refusing to bargain with the Union on or after January 5, 1976, Respondent violated Section 8(a)(5) of the Act. a means of securing a new election. While I need not pass on this matter. it would seem strange that the UAW would be interested in putting its majority status to a test after such a long struggle to establish it in the first place. Respondent's brief contends that a bargaining order may not be issued in favor of the UAW because of the presence of the Allied Industrial Union. Although. presumably, that union secured a 30 percent showing of interest for purposes of initiating the election, it seems obvious that it has no real support among the electorate. The thrust of the campaign by Respondent, the "Concerned Employees." and "The Hartwell Sun" was directed against the UAW. not the Allied Union. Of 688 opened ballots cast in the election. the Allied Union received only I I votes. It filed no objections to the election and has not made an appearance in the proceeding before me. 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Other than as set out above, Respondent committed no other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has violated the Act, I shall recommend the customary cease-and-desist order and the posting of the usual notices. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, I hereby issue the following recommended: ORDER 26 The Respondent, Monroe Auto Equipment Company, Hartwell, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that it will close its plant in the event that they select a union to represent them; threatening to restrict production in the plant in the event that the employees select a union to represent them; promising increased benefits to employees if they vote against a union; and coercively interrogating employees about their union adherence and sympathies. (b) Refusing to bargain collectively with International Union, Automobile, Aerospace & Agricultural Implement Workers of America (UAW), as the exclusive collective- bargaining representative of the employees in the following unit at its plant in Hartwell, Georgia: All production and maintenance employees, including inspectors, truck drivers, leadmen and temporarily laid off employees, excluding factory-administrative clerks, quality control personnel, time study personnel, techni- cal-experimental department employees, production engineers, administrative personnel, office clerical employees, permanently laid off employees, watchmen and supervisors as defined in the Act. (c) In any like manner interfering with, restraining, or coercing employees in their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid and protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Interna- tional Union, Automobile, Aerospace & Agricultural Implement Workers of America (UAW), as the exclusive collective-bargaining representative of the employees in the bargaining unit described above, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its plant in Hartwell, Georgia, copies of the attached notice marked "Appendix." 27 Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint not found in the foregoing Decision to constitute violations of the Act be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the election held in Case 10- RC-10543 on January 29 and 30, 1976, be set aside. 26 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. 27 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing and Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT threaten employees that we will close our plant in the event that they select a union to represent them, and WE WILL NOT threaten them that we will restrict production at our plant. WE WILL NOT promise benefits to employees in order to persuade them to vote against a union. WE WILL NOT coercively question employees about their union sympathies or beliefs. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist unions, to bargain collectively through representatives of their own choos- ing, or to refrain from such activities. WE WILL, upon request, bargain collectively with International Union, Automobile, Aerospace & Agri- cultural Implement Workers of America (UAW) with respect to the wages, hours, and other terms and conditions of employment of the employees in the following appropriate bargaining unit: 756 MONROE AUTO EQUIPMENT COMPANY All production and maintenance employees, including inspectors, truck drivers, leadmen and temporarily laid off employees, excluding factory- administrative clerks, quality control personnel, time study personnel, technical-experimental de- partment employees, production engineers, ad- ministrative personnel, office clerical employees, permanently laid off employees, watchmen and supervisors as defined in the Act. MONROE AUTO EQUIPMENT COMPANY 757