Automated Products, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automated Products, Inc. and United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Cases 30-CA-4750 and 30-RC-3331 May 21, 1979 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On February 23, 1979, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, General Counsel and Re- spondent filed exceptions and supporting briefs. The Charging Party and Respondent filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Automated Products, Inc., Marshfield, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be dis- missed as to any alleged violations of the Act not found herein. I The Administrative Law Judge, in the section entitled "Threat to Elimi- nate the Night Shift," inadvertently refers to Williams as wegner. In the section entitled "Wage Increase" he states that "Bell credibly testified that he originally considered April 10, as the effective date of the raise but he post- poned the effective date to April 17 because of the inability of the payroll clerk to implement the raise on or about April 10." The record, however, reflects that Bell had considered April 10 as an alternative date to announce a new wage scale to be implemented on April 17, and that he changed the date of' the announcement to April 5 when the payroll clerk informed him that April 10 would not give her enough lead time to put the raise into effect on April 17. These errors do not, however. affect he Administrative Law Judge's findings and conclusions which we adopt 2 Member Murphy notes that the Administrative La, Judge cited Alvin J. Bart and Co., Inc., 236 NLRB 242 1978). in which she dissented, to support his admitting into evidence certain pretrial affidavits. While she agrees that said statements were properly admitted, she does not rel) on that decision in doing so. The issue under consideration concerned the impeaching and dis- crediting of a witness' testimony and not establishing as fact a statement in the affidavit contrary to the witness' testimony. Bart and Co, is, she holds. therefore irrelevant with respect o the matter for which it was cited by the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on June 8, 1978, in Case 30-RC-3331 be, and it hereby is, set aside and that a new election be directed therein as set forth below. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION STA'IEMENI OF IHE CASE THOMAS R. WILKS, Administrative Law Judge: A hear- ing in this consolidated proceeding was held on October 3, 1978, in Marshfield, Wisconsin, based upon a charge filed against Automated Products, Inc. (herein Respondent), on June 16, 1978, by United Brotherhood of Carpenters & Joiners of America, AFL CIO (herein Union), and a com- plaint subsequently issued by the Regional Director alleg- ing that Respondent violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, by announcing and effectuating a wage increase in order to frustrate union organizational activity: by threatening employees with plant closure, elimination of the night shift, and loss of job security if the Union were elected: by interrogating an em- ployee regarding union support; and by disseminating and maintaining an invalid no-distribution rule. Pursuant to a petition filed on April 17, 1978, and a Stipulation for Certification Upon Consent Election ex- ecuted by the parties and approved by the Regional Direc- tor on May 10, 1978, an election by secret ballot was held in Case 30-RC--3331 on June 8 in the following unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its 1812 Karau Drive, Marshfield, Wisconsin, location, including production related technicians and truckdrivers; but excluding office clerical employees, managerial and professional employees, plant manag- ers. forepersons, guards and supervisors as defined in the Act, and all other employees. The tally of ballots disclosed that of' approximately 68 eligible voters, 24 casl ballots for and 36 cast ballots against the Union. Challenged ballots were not determinative. On June 13 the Union timely filed objections to conduct affect- ing the results of the election. On August 1, 1978, the Re- gional Director issued the Order Consolidating Cases and Notice of Hearing on Objections because of the identity of issues raised by the objections with those issues raised by the complaint. The objections are as follows: THE OBJE('IIONS (I) the emnployer/supervisory personnel stated that they would close the doors because the), couldn't af- ford the union. (3) the employer/supervisory personnel posted wage notice on raise which was not due until June. (4) statement was made to one employee that if he wanted job security vote "no" at the election. 242 NLRB No. 80 424 AUTOMATED PRODUCTS, INC. (5) employer/supervisory personnel threatened an employee that if the union came in the night crew would be done away with. * * (8) by these and other actions, the employer/super- visory personnel interfered with the election. The objections did not explicitly refer to the maintenance of an invalid no-distribution rule; however, Objection 8 al- leged interference with the election "by these and other ac- tions," and Respondent had filed no motion for a bill of particulars as to Objection 8, nor a motion to dismiss Ob- jection 8 on the grounds of lack of specificity. It is clear that objectionable conduct discovered by the Regional Director during the course of his investigation but which was not specifically alleged as objectionable may nevertheless be considered by him. Thomas Products Co., Division of Thomas Industries, Inc., 169 NLRB 706 (1968). The Gen- eral Counsel alleges that all conduct alleged as violative of the Act interfered with the employees' free choice in the election. Accordingly, I shall evaluate the allegation regard- ing the invalid no-distribution rule as election interference and objectionable conduct as well as whether it constitutes a violation of the Act. On the entire record in this case, including my observa- tion of the witnesses and their demeanor while testifying, in consideration of the inherent probability of all aspects of their testimonies, and after due consideration of the briefs submitted by all parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation, maintains its only place of business in Marshfield, Wisconsin, where it is en- gaged in the manufacture of wood trusses. Respondent meets an appropriate jurisdictional Board standard, and all parties agree and I find that it is an employer within Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Wage Increases Respondent has been engaged in the manufacture of mo- bile home rafters for about 10 years. Such production in- volves products of standardized proportions and set pro- duction runs of relatively lengthy duration. In mid-September 1977 Respondent's operation com- menced a profound change by its entrance into the residen- tial and commercial roof truss business. This type of busi- ness entails different customers, different production procedures, different and varying sizes of products, and dif- ferent delivery dates, some of which involve a matter of days from the date of order to the actual delivery date. Concurrent with the change in business, there was also a change in management and personnel. John Bujalski was hired as a general manager of marketing. In October 1977 he became vice president of marketing. Bujalski had brought with him 4 years of experience at Mid-West Dis- tributors, a Division of the Menard Corporation where he was a sales manager. Bujalski commenced the conversion of the nature of Respondent's business and the necessary ex- pansion of facilities and personnel that followed. From about 38 employees in early spring of 1978, the ultimate employment rose to the current 90 employees.' The existing two plants were augmented by the construction of a third plant which was completed in July 1978. By March 27, as a result of a sales effort directed for new customers in the residential and commercial field, Respondent experienced a surge in new work orders. During the last 10 days of March, five to six new work orders were received for work never previously performed by Respondent. Between April 10 and May 10, 29 new employees were hired. In mid-April a night shift was initiated. John Bell was hired on February 3 as the corporate gen- eral manager whose varied duties included the overall su- pervision of production, sales, and the hiring of employees. He had been employed previously at Mid-West Distribu- tors as the truss plant manager and possessed some experi- ence in personnel and labor matters. Bell testified credibly that upon his hire he conferred with Respondent's board of directors and discussed his plans for the conversion process. He advised them that based upon his experience at Mid- West Distributors, the wages at Respondent were too low. and that higher wages were necessary to attract the large number of new employees that were to be hired shortly. He thereafter received approval to assemble a program for a new wage format. He began working on March 6. In the process of assembling a new wage scale, he discarded Re- spondent's old system of merit wages as being too unwield? and subjective. and instead he settled on a pay scale plan based upon employment longevity. He testified without contradiction that he settled upon a wage system and scale that was comparable to the wages at Mid-West Distribu- tors. His testimony as to the job market, the need for higher wages to attract qualified employees, and the wages paid at Mid-West Distributors was challenged. At this point, the expectations of the employees should be noted. On November 7, 1977. Bujalski had addressed the employees at a group meeting. His testimony as to what he told employees is more credible than the hesitant and un- certain testimony of employee Craig Hayes. Where there is a variance, I credit the more assured Bujalski. At that meet- ing Bujalski announced that the employees would receive a wage increase. He explained that the basis for granting the increase was the 8-percent increase in the current cost of living. He told them that some employees would receive an 8-percent raise and some would receive less. He also told them that some would receive more than 8 percent. In the past raises were given at 6-month intervals. Bujalski told the employees that Respondent was to embark on rapid and extensive changes in production and also with respect to wage scale criteria. He also told them that another raise I All dates are hereinafter 1978 unless otherwise stated. 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be granted in 6 months or sooner. According to Hayes, the raise was supposed to have been put into effect within I week after the speech but was delayed because of some contingency until December. Thus, on or about De- cember 5, 1977, a wage increase was given to employees. The percentage of increase varied. Some employees re- ceived less and some received more than 8 percent. On March 7 Bell was introduced to the employees at a group meeting in plant II. It is his uncontradicted and credible testimony that he told the employees at that meet- ing of his past experience at Mid-West Distributors, that he told them of Respondent's expansion plans, and that he also told them that he was developing an incentive program and a new wage scale. On March 8 Respondent mailed letters to its employees which referred to an attached managerial chart of responsi- bility and a set of work rules. These work rules had existed in the past but were referred to in the letter as "new work rules." The letter stated that work rules would be made effective "March 8, 1978." The letter described the Respon- dent as a "growing company," and mentioned that changes "will come about in the future ... "; the letter also ended on the expressed hope that the employee as well as the stock- holder will benefit from the growth of the Company. Thus, prior to the advent of the union organizing effort, it is clear that Respondent was in the throes of an expansion program, that employees were advised of it, and that they were advised of coming profound changes with respect to their pay scale. Under such circumstances, the subsequent announcement of a wage increase is something that the em- ployees could reasonably anticipate. Also under such cir- cumstances, it is reasonable to conclude that the employees would anticipate a wage increase that exceeded 8 percent and one that might not necessarily hinge upon the old 6- month pattern of raises. The first union organizational activity apparently oc- curred on or about March 28. Bell volunteered that he first became aware of the union card solicitation on that date. On April 5 a wage increase was announced to the employ- ees in a group meeting conducted by Bujalski and Bell. The effective date selected for the wage increase was April 17. 'lie starting rate was previously $3 per hour; it was raised to $3.50. All employees received raises. Some received somewhat more than 50 cents per hour and some somewhat less than 50 cents per hour. Thus, Hayes received a raise from $4 per hour to $4.50 per hour. The wage scale was based upon longevity and was comparable to Mid-West Distributors rates. According to Bujalski and Bell, the raise was announced without any reference to ongoing union activity; Bujalski described the expansion program and the expected growth of the Company, and Bell advised them of the new pay scale to be effective April 17, based on longevity. Bell prom- ised to post the seniority rosters so that each employee could quickly discover his wage increase. Of over 35 employees present at that meeting, only 2 were called upon by the General Counsel to testify as to that meeting Craig Hayes and David Williams.2 2 illiams was promoted to yard foreman, a supervisory position, in Au- gust. Despite the announcement at the meeting of a substantial raise and despite the uncontradicted testimonies of Bujalski and Bell as to the expansive growth of the Company, Wil- liams testified that Bujalski stated at the meeting that the Company could not afford a raise at that time but could afford it at a later date. He then testified that Bujalski stated that Respondent could not make too many improve- ments at that time, but that he did not think that the Union could better the conditions for the employees. He then abruptly testified that Bujalski announced a 50-cent raise. Hayes testified that Bujalski referred to the Union, that Respondent could not deal with the Union, that it would not negotiate with the Union, that it was undergoing "growing pains," that all employees were underpaid and deserved raises, and that Respondent would have to close if the Union succeeded in the attempt to organize employees. He further testified that the employees were given two let- ters at that meeting. One letter was the March 8 letter re- garding the announced work rules, and the second letter, dated April 10, contained Respondent's campaign position against the Union. The General Counsel alleges that the work rules were announced on March 8, by means of that letter. Respondent's testimony is in accord with that con- tention. It is unlikely that Respondent redistributed the let- ter on April 5. As to the second letter of April 10, Bujalski testified that it was composed and mailed to all employees on April 10. He testified that nothing was distributed to the employees at that meeting or at the two subsequent meet- ings the Employer conducted during which it set forth its position in the union organizing campaign.' Bujalski testi- fied that all employees did, in fact, receive such letters on or about April 10. He was not contradicted in this testimony. It is unlikely that the letter dated April 10 was distributed on two dates. Hayes also testified with great emphasis that Bujalski told the employees at the meeting that the Union had filed a petition for an election, and that there would be an elec- tion. This is highly improbable because the organizing ef- fort was in its embryonic stage, and no petition had been filed until April 17.4 With respect to the April 10 letter, Hayes attempted to explain his certitude on that point by recounting a conver- sation he purportedly had with Bauman and employee Wegner with regard to that letter. Bauman did not testify, and Wegner, who was called to testify by the General Counsel, did not testify to any aspect of the April 5 meet- ing, and thus he did not corroborate Hayes. Williams could recall nothing else about the meeting other than his uncertain cryptic and noncontextual testi- mony. His pretrial affidavit was admitted into evidence.' His testimony therein is also cryptic and based on his sub- jective perceptions rather than actual recollections, e.g., he testified that Bujalski linked the closing of the plant with Neither the General Counsel nor the Charging Party alleges that Respon- dent engaged in any interference with employees' nghts by its conduct at those two later meetings. 4In some confusion, Williams. at first in his cross-examination, indicated that there may have been reference to a petition at the April 15 meeting; he then conceded that he was probably confusing that meeting with a subse- quent meeting conducted by Respondent. See Alvin J. Bart and Co., Inc. 236 NLRB 242 (1978) Star Kisr Samoa, Inc, 237 NL.RB 238 (1978). 426 AUTOMATED PRODUCTS. INC. the Union "in so many words." The affidavit is completely silent as to any distribution of letters at the April 5 meeting, as to any reference to Board election or petition, or as to a refusal by Respondent to negotiate with the Union. Wil- liams' testimony in numerous other areas is also inconsis- tent with that of Hayes. In his pretrial affidavit Hayes testi- fied that Bujalski did not actually say that the Company would close but that was "how I took it." Hayes' testimony conflicts with his own affidavit in other areas and, in part, is repudiated by him. In sum, the testimonies of Hayes and Williams are incon- sistent, internally inconsistent, and inherently improbable., Williams was unable to recall events. Hayes, who had been reprimanded and subsequently discharged by Respondent, was openly hostile and partisan in his testimony. He lacked fluency and responsiveness. He repeatedly insisted upon having questions posed in cross-examination read back to him before he would venture an answer. His antipathy toward Respondent was manifest in his demeanor. Based upon the foregoing, I credit the testimonies of Bujalski and Bell as to the April 5 meeting. Both were cer- tain and detailed in recollection and responsive when being questioned. Bell candidly volunteered having acquired knowledge of union solicitation efforts despite the fact that neither the General Counsel nor the Charging Party ad- duced any evidence into the record as to that activity except for the testimony of firstline foreman Kmiec, who signed a union card prior to April 5. Thus, I conclude that the raise was announced on April 5 without any mention of the Union, much less a threat to close the plant. The question remains, however, whether Respondent ac- celerated and/or exaggerated the wage increase upon learn- ing of the union activity on March 28. Bell testified that he had prepared the wage scale, had presented it to the board of directors, and had obtained approval from them on March 27. The minutes of the board of director's meeting corroborated his testimony as does Bujalski's testimony that on March 24 he and Bell consulted and decided that Bell would proceed to present the recommendation to the board of directors. As to the date of the announcement, the General Counsel argues that the announcement was calcu- lated to precede a union meeting of April 6. However, there is no evidence that a union meeting was ever held on April 6 or that it was ever announced to be held on that date. Bell testified that he accelerated the employee meeting from April 7 to April 5 upon his discovery that Bujalski was to be absent on April 7 for business reasons. Bell credibly tes- tified that he originally considered April 10 as the effective date of the raise, but he postponed the effective date to April 17 because of the inability of the payroll clerk to implement the raise on or about April 10. I see nothing absurd or suspicious in this explanation. I cannot conclude that the raise was accelerated to com- bat the Union's efforts. I credit Respondent's witnesses' tes- timonies that the raise was implemented at that particular 6 For example, it is extremely unlikely that Respondent would, in one breath, speak of its inability to grant wage increases and growing pains, while at the same time announce a substantial wage increase. It is also un- likely that Respondent would have referred to an election date and to a petition that had not et been filed. point because of necessity to have an attractive wage scale in effect at a time when Respondent was about to engage in the massive hiring of new employees at the outset of the new construction season. There is nothing in the record to challenge the testimony that higher wages were necessary to attract qualified employees to be utilized by Respondent in its new field of operations. All the employees were led to believe that an entirely new wage scale was imminent. Had Respondent deferred action because of the union activit\. Respondent may well have put itself in jeopardy of being accused of an attempt to penalize employees fir engaging in union activity. Had Respondent indeed waited to imple- ment the wage increase for the usual 6-month period, the raise still would have been given before the date of the election at a time of greater impact because of its proximity to the election. According to Hayes' testimony the 1977 raise was supposed to have been granted in November. I week after the November 7 meeting but w.as delayed to December 5 because of some exigency. Thus, the April 17 raise was, at most. 60 days early counting from the date that the last scheduled raise was due. Furthermore, the elec- tion date was set by stipulation of the parties, and Respon- dent could easily have maneuvered for a later date simply by not voluntarily stipulating. Based upon the entire record. I do not conclude that the timing of the raise was caused by the organizing etTorts of the Union, nor do I conclude that the size of the pay raise hinged upon those efforts. Indeed. the Union. in its subse- quent campaign, claimed that substantially higher wages were available at a unionized employer, and thus implied that unionization would achieve much higher wages for Re- spondent's abnormally underpaid employees.' B. Threat o Eliminate the ,Nigit Shi/i Williams testified hesitantly, cryptically, and without context that at the end of April or early MaN Plant II Fore- man Bradely Gilbertson told him that if the Union came in there would be no night crew. In cross-examination, he con- ceded that Gilbertson may have said that if the Union were successful in obtaining the $5 per hour they were pushing for that the Company might not be able to afford a night shift. Thus. Wegner appeared to have no certain, at all as to what was actually said. Gibertson testified that on one occasion he came upon Williams who was engaged in a conversation with Mark Bauman. yard foreman. at 4 p.m.. at the dxr at plant 11. At that point Gilbertson. who was then the night-shift fore- man. joined them. Bauman looked at Gilbertson and asked "the nighters are going to get laid off aren't they if the Union get in?" In response to his fellow foreman. G(ilbert- son replied "It's possible that ifthey get the $5 an hour they are pushing for." He stated nothing further. In light of Wil- liams' admission and lack of certitude I credit the testi- mony of Gilbertson. C. Interrogation Threat of/ I.os of Job Securit' Hayes testified that during the third week of May. just outside of plant room II at 8 a.m.. Bujalski engaged him in ' The [ nion. in its campaign literature. referred to the $5' 23 starting w age rate at another employer's facility which t implied was unionlled 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a conversation wherein Bujalski stated that the Union should not "pressure" Respondent, and that the Union had no right "to be here," and "stuff like that" and then asked "how much support the Union had." Before Hayes could answer, Bujalski was summoned away to answer the tele- phone. Bujalski denied the conversation. Hayes testified that his next conversation with Bujalski occurred during the fourth week of May. He testified that he went into Bujalski's office to complain of employees' mistreatment by foremen. It is apparent from his testimony that he was complaining specifically about abusive lan- guage directed toward him when he complained to the fore- men about a shortage of supplies. According to Hayes, Bujalski denied the mistreatment and then proceeded to raise the subject of the Union by complaining that Respon- dent should not have to perform "book work" caused by unionization, i.e., dues deductions, and that the Union could not offer the "Company" anything. He offered no explanation for that jarring change of subject matter, par- ticularly as to what caused Bujalski to talk about a matter that would be of concern in the far distant future in a mat- ter which is more pertintent to negotiations. Hayes purport- edly then inquired "what about job security?" Hayes testi- fied that Bujalski answered that the Union cannot offer job security and that if he, Hayes, wanted job security he should vote "no." Hayes testified that Bell had joined them and at that point stated "yes, Craig, if you want job security vote no on the Union." At that point Bell was summoned away to answer the telephone, and Hayes went back to work. The complaint alleges no misconduct in this regard by Bell but alleges that Bujalski uttered the threat of a loss of job security. No amendment was sought as to Bell. In Hayes' pretrial affidavit he made no mention of the May interrogation, but he testified "I have no idea how or even if the Company knew of my union activity/feelings. I was never questioned nor did I volunteer information in this regard." Apparently, the interviewer covered the sub- ject of interrogations. The May interrogation was not al- leged in the original complaint but was amended at the hearing after Hayes was asked to direct his attention to the last week of May and was asked whether he had a conver- sation with Bujalski, to which Hayes reponded that he had two conversations and proceeded with the foregoing testi- mony. During cross-examination, when asked if what Bell actu- ally may have said as whether the Union cannot guarantee job security, Hayes (after a long hesitation) responded that he did not "think so." He then asserted that "the way I took it, if I wanted job security, I'd better vote no...." In his pretrial affidavit stated that after discussing his complaint with Bujalski, Bujalski stated "we have nothing against you"; and then stated "If you want job security vote 'no'- the Union cannot guarantee job security." Hayes qualified that testimony, however, with the appendage "or something very much like that." Thus, in Hayes' affidavit, Bujalski immediately referred to job security without reference to other union disadvantages. Furthermore, in his affidavit Hayes stated that Bell said "the Union cannot guarantee job security so vote 'no.'" In his redirect testimony Hayes testified that Bell and Bujalski made identical statements. Upon redirect examination Hayes testified that he know- ingly gave the Board agent an incorrect account of what Bell had stated because he was fearful that his statement, despite the assurance of confidentiality set forth in the affi- davit, would somehow get back to Respondent. This is a most unconvincing performance of dissembling. If that were Hayes' concern, why did he give other damaging testi- mony to Respondent in that affidavit, and why did he give the statement in the first place. In view of the manifest bias of the witness, the inconsis- tencies in his testimony, and the overall unreliability of his testimony, I credit Bujalski's and Bell's versions of the May conversations. I credit Bujalski that he did not ask Hayes about employee support of the Union, but rather, it was Hayes who raised the subject and tried to ingratiate himself with Bujalski by assuring him that the Union did not have support and that he was, in any event, not going to vote at the election and would be on vacation at that time. Indeed, Hayes did not vote. I credit Bujalski and Bell that Hayes came to the office to complain of his personal treatment, that no reference was made to job security by Bujalski, and that the discussion centered on Hayes' necessity to fill out production reports regarding lack of supplies. I construe Bell's testimony that he can recall no reference to job secu- rity by him as an adequate denial of Hayes' unreliable tes- timony.' D. Threat To Close by Foreman Employee Kevin Wegner testified that he had signed a union card on April 5. Foreman Thomas Kmiec, an admit- ted supervisor, signed a union card on some prior date. According to Wegner, these two gentlemen had an occasion to discuss the Union, to the best of Wegner's uncertain rec- ollection, 1 or 2 weeks before the election. Kmiec denied that he had such a conversation with Wegner. Wegner tes- tified that the conversation occurred outside the two plants, and what while alone with Kmiec, he was told that if "we would get a union, we wouldn't really have anybody that could really run a union. And that if we did get a union in, the Company could possibly not afford to pay the employ- ees what we might want. And that the Company would fold or close its doors." At that point, Wegner supposedly asked Kmiec who it was that instructed him to make such a state- ment. The conversation then terminated. On examination by the Charging Party, Wegner testified that Kmiec stated "the Union wouldn't be or the Company would not be able to afford us for what we might ask for a wage. And that the doors would probably-may close or would be almost all of us without a job." Wegner's demea- nor indicated a hesitancy and lack of certitude as to what he could recall of the conversation. He could not recall how the conversation started, whether other subjects were dis- cussed, or whether he had said something about the Union that led up to the alleged remarks of Kmiec. Upon review- ing the relative demeanor of both witnesses, I credit At the time of this incident Hayes was a "press foreman," who was charged with the responsibility for the timely work efforts of subordinate employees and was, on one occasion, consulted with respect to the discharge of an employee. In view of the above factual finding, it is unnecessary for me to decide whether Hayes was an employee within the meaning of the Act and entitled to the protection of the Act. 428 Kmiec's denial. Wegner was far too uncertain of exactly what was stated. I therefore find his testimony unreliable. E. Conclusions 1. Interrogations, threats, granting of wage increase In view of the foregoing findings of fact, I conclude that Respondent did not engage in coercive interrogations and threats of plant closure or loss of job security as alleged with respect to Bujalski, Bell, or Kmiec. I also conclude that the wage increase was granted in consequence of busi- ness considerations and was not timed to frustrate the Union's organizing efforts. With respect to Foreman Gil- bertson's conversation with employee Williams, Respon- dent argues that his statement constitutes nothing more than economic speculation, i.e., if Respondent cannot af- ford the wage demands agreed to in negotiations, then it might eliminate the night shift. I disagree. Gilbertson's comment was not made within the context of the discussion of economics. Rather, from Gilbertson's own account, an employee was engaged in a discussion with another fore- man, Bauman, about a matter of concern, i.e., the fate of the night-shift crew. When Gilbertson approached, Bau- man sought confirmation from him, the night-shift fore- man, that a definite event would occur, i.e., the layoff of the night shift upon the organizing success of the Union. Gil- bertson's response was therefore critical, especially in view of his position as night-shift foreman. His response did not reassure the concerned employee. He did not repudiate Bauman's threat. In essence, he told the employee that unionization was futile because if it were successful in bar- gaining for higher wages, it might result in the layoff of the entire night shift. This prediction was not carefully couched in terms of economic necessity. Rather, it was only limited to the contingency of the Union's bargaining success. More- over, in such a context, at a time within 2 weeks of an election, the incident is neither so trivial nor isolated as to be disregarded as a mere casual opinion given by a low level supervisor. Although an employer or his agents may make a prediction as to the precise effects he believes the unionization will have upon his company, that prediction "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probably consequences beyond his control...." N.L.R.B. v. Gissel Packing Co., Inc. 395 U.S. 575, 616 (1969). Gilbertson's statement was not carefully phrased in terms of economics, but rather it lay open the clear possibility that Respondent, in retaliation for the Union's bargaining success, might ter- minate the third-shift employees. Thus, Gilbertson's state- ment clearly had the tendency to interfere with the employ- ees' right to freely select or reject union representation without threat of reprisal, expressed or implied. Accord- ingly, I conclude that Respondent by its conduct violated Section 8(a)(X) of the Act and interfered with the election process as alleged in Objection 5. 2. The no-distribution rule As indicated above, Respondent published or repub- lished work rules by means of the March 8 letter addressed to individual employees. It did so because of the increased AUTOMATED PRODUCTS. INC. hiring of new employees. Rule 9 set forth as a basis for discharge upon the second violation the following conduct "Distributing written or printed matter of any description on company premises unless approved by the manage- ment." Respondent adduced no evidence of special circum- stances which would justify this overly broad rule that clearly abridges employees' rights to engage in protected activities during their nonworking time and in nonworking areas. Soddard-Quirk Manufacturing Co., 138 NLRB 615 (1962). Respondent argues that inasmuch as the rule was rescinded in July when Respondent was apprised of its in- validity and inasmuch as there is no evidence that the rule was actually enforced, a remedial order is inappropriate. Respondent argues further that there is evidence in the record that managerial personnel were aware of the distri- bution of union materials on its premises. yet they did not order the employees to comply with the rule. It is not clear, however, when or where distribution occurred or who was involved in such distribution. Respondent cites Bellinger Shipyards, Inc., 227 NLRB 620 (1976); and Deringer Mfg. Company, 201 NLRB 622 (1973), in support of its position. In those cases the Board, because of corrective action taken by the employer in the peculiar circumstances of those cases, ordered no remedial action. However, there is no doubt that the solicitation/distribution rules considered therein were invalid. In the Deringer case, a violation of the Act was found, but no remedial order was issued. In the Bellinger case, because of pragmatic considerations, a viola- tion was not found. The circumstances of this case are distinguishable from those two cases. In this case, Respondent promulgated and maintained its rules at the outset of the hiring of a large number of new employees. These new employees, by the letter of March 8, were directed to focus their attention on the rules as well as the sanctions for disobedience. The Union's organizing effort commenced 20 days later. This rule remained in effect until July. The rule was never explic- itly repudiated at that time. The generalized testimony in the record concerning occasions of noncompliance fall short of a demonstration that the rule was universally disre- garded or universally understood by the employees to be nonapplicable to the distribution of union materials. It is, on the contrary, reasonable to infer that a good many if not most of the employees assumed that their Employer meant what it said when it promulgated that rule. Consequently, the mere fact of its maintenance most certainly tended to inhibit the union activities of the conscientious employee. This occurred within the context of a preelection campaign and therefore necessarily tended to interfere with the elec- tion process. I therefore do not construe the rationale of the Bellinger and Deringer cases applicable herein. Rather, I conclude that the maintenance of rule 9 constituted a viola- tion of Section 8(a)(1) of the Act during the preelection period which necessarily warrants the setting aside of the election pursuant to Objection 8. CoNcLusloss OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 429 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of Sections 2(5) of the Act. 3. Respondent has interfered with, restrained, and co- erced employees in the exercise of the rights guaranteed them under Section 7 of the Act in violation of Section 8(a)( ) of the Act by threatening employees with discontin- uation of the night shift if the Union is elected or is success- ful in collective bargaining and by at all times between March 8 and July 1978 maintaining a written policy which requires employees to obtain the Employer's permission be- fore engaging in the distribution of any written or printed material on the Employer's premises. 4. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. By engaging in the aforesaid unlawful conduct, the Employer interfered with the free choice of employees in the election. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It is further recommended that the election which was held on June 8, 1978, be set aside and that Case 30-RC-3331 be remanded to the Regional Director for Region 30 for the purpose of conducting a new election at such time that he deems such circumstances permit a free choice of bargaining represent- ative. On the foregoing findings of fact, conclusions of law, the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER 9 The Respondent, Automated Products, Inc., Marshfield, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining or enforcing any written or unwritten rule or policy which requires employees to obtain the per- mission before engaging in distribution of any written or printed material on Respondent's premises. (b) Threatening employees with the elimination of the 9 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. night shift if the Union is elected or is successful in the collective-bargaining process. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its facilities in Marshfield, Wisconsin, copies of the attached notice marked "Appendix."' ° Copies of said notice, on forms provided by the Regional Director for Re- gion 30, shall be posted by Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to any alleged violations of the Act not found herein. 10 In the event that this Order is enforced by a judgment of a United States court of appeals, the words in this notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NAIIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an administrative law judge at which all parties had the opportunity to present arguments, it has been decided that we, Automated Products, Inc., have vio- lated the National Labor Relations Act, as amended. We have therefore been ordered to post this notice and to com- ply with its provisions. WE W'ILL NOT maintain or enforce any written or unwritten rule or policy which requires employees to obtain our permission before engaging in the distribu- tion of any written or printed material on our premises. WE W.ILL NOT threaten employees with the discon- tinuation of the night shift if the Union is elected or if the Union is successful in collective bargaining. WE WILL. NOT in any like or related manner infringe on rights guaranteed to employees by the National La- bor Relations Act. AUTOMATED PRODUCTS, INC. 430