Donn Products, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donn Products, Inc. & American Metals Corporation and United Furniture Workers Local 450, United Furniture Workers of America, AFLCIO. Cases 8-CA-9464 and 8-RC-9998 April 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On October 18, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel, Res- pondent,' and the Charging Party filed exceptions and a supporting brief, and Respondent filed a reply to the General Counsel's and the Charging Party's exceptions. The Charging Party filed a brief in opposition to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, 2 findings,3 and conclusions 4 of the Administrative Law Judge to the extent consistent herewith. 1. The Administrative Law Judge found that Respondent's president, Donald Brown, did not announce in advance that if the Union were certified Respondent would not bargain in good faith. The General Counsel and the Charging Party have excepted, contending that the Administrative Law Judge incorrectly failed to consider the entire record on this issue, particularly the transcripts of the Union's tape recording of speeches made by Brown at employee meetings on September 5 and 8, 1975.5 They argue that, although he properly admitted these transcripts into evidence, he ignored them and incorrectly subsequently referred to the evidence on the issue of bad-faith bargaining as "nebulous, vague, indirect." We find merit in these exceptions. Brown's speech on September 8 is a long rambling discussion. On several occasions he made statements that indicate he was willing to engage in a type of ' Donn Products, Inc., and its wholly owned subsidiary, American Metals Corporation, are referred to herein collectively as Respondent. 2 The Administrative Law Judge credited the testimony of employee Gerald Wasik with respect to Company President Brown's remark regarding plant relocation. Although he admitted a transcript of these remarks into evidence, he made no reference to it. It is, however, not necessary to make any modification in the Administrative Law Judge's finding since Wasik's recounting of Brown's remarks is substantially the same as the transcribed account. i1 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 229 NLRB No. 9 bargaining which amounts to no more than a show. Thus Brown stated: As I mentioned to you before, I am not inclined to be forced to do anything. It is a free country, I am a free man, and I believe that I ought to be able to do what I believe I have to do and, that is, I'll bargain; but it's like leading a horse to water. When he's got his head under water, you don't know for sure he is drinking, but then you've got to practically drown the horse before he drinks enough water, before you bring him out. So this is how the battle starts ... * * * * * The length of negotiations has to do with how long do you hold the horse's head under the water. Finally he wants a drink of water and he comes up, so he talks for a little bit, a little while, and goes back and forth. And, as I pointed out, a lot of it is for show. Brown then went on to make it clear that the employees' only hope of obtaining an agreement was to call a strike with the possible loss ofjobs: [I]f I decide I'm not going to do something and it doesn't matter what it is, there's no law in this country that says I have to. So then we start down the line: "How far are we going to carry this out?" Well, this is what happens-it's very simple-we reach the point of impasse. That's really easy to [r]each, a point of impasse. You say, "Well, you got to keep talking," and you've got to keep talking and negotiating with the union or you've got to be continuing to negotiate in what they call good faith. I am an expert. That is negotiating in good faith, because all you've got to do, I am sure, is keep talking and keep talking and keep saying no until finally you all decide to go on and step outside and stand outside the same stake that this union is trying to get in, but now my employees step out and join them and they stand out there, outside of that stake. [Emphasis supplied.] 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. 4 We agree with the Administrative Law Judge's conclusion that Brown's remarks regarding plant relocation were in violation of Sec. 8(aXl) of the Act. They occurred against a background of threats, interrogations, and promises and grants of benefits. In this context, Brown's talk about Respondent's ability to move the plant wherever it wanted constituted a threat of economic reprisal in the event the Union won the election. 5 All named months and dates refer to 1975, unless otherwise indicated. 116 DONN PRODUCTS, INC. Don't forget. You can't step on our front lawn, and we'll put up a few more stakes to be sure that our own employees don't come back in again, because when you are on strike it's no longer your company, it's not your company any more. You have decided that you are going to go somewhere else and you won't come back to work unless you get whatever your demand is. Brown then told the employees in effect that he would resist any union proposal by asking it to take less. He again told the employees that if they selected the Union they would face a long strike and the loss of benefits they presently enjoyed: Well, how do you cause the company to hurt? You try and get even with us for not negotiating as much as you think you would like to have and, therefore, you go out on strike, and you step out, pick up your signs, and there you are. Now, it's very simple. When are you going to come in? We'll come in when our demands are met. [Emphasis supplied.] "When are your demands met?" You know I am going to have to be the one to meet them. So, now time goes by and the talk behind the scenes naturally is, "I wonder when they are going to be tired of losing money by sitting out there and wanting to come in, and how much do they think they are going to get? How much extra do they think they are going to get?" And all these favoritisms and all these other little things that you are talking about, and some of them are pretty small, how long are you going to stay out there? Well, it's your guess; it's my guess. Thus, Respondent repeatedly stated that it intend- ed to engage only in sham bargaining and force the employees into a position where they had to strike. Respondent thereby conveyed to employees the futility of choosing union representation and present- ed them with only a choice between striking and no union.s In so doing, Respondent restrained and coerced employees in violation of Section 8(a)(l) of the Act.7 2. The Administrative Law Judge found, and we agree, that the Union represented a majority of Respondent's employees when its demand for recog- nition was refused on July 9. However, he found that while Respondent's unfair labor practices warranted the setting aside of the election they were not serious enough to prevent the holding of another election. We disagree. In our view there is little or no 6 Boaz Spinning Companrt, Inc., 177 NLRB 788 (1969). 7 Princeton Sportswear Corporation of Pennsylvania, 220 NLRB 1345, 1347 (1975); Si Anne's Home, Division of De Paul Community Health Center, 221 NLRB 839, 844 (1975). likelihood that a second and fair election could be conducted in the face of the Respondent's far- reaching unfair labor practices, and a bargaining order therefore is required to protect the employees' representational rights. Here, Respondent's unlawful conduct began early in the union campaign, continued through the election, and resulted in the dissipation of the Union's majority status. Thus, Respondent interro- gated and threatened to discharge Steyer, a member of the union organizing committee, and threatened to prosecute employee Wasik for distributing union literature in the plant. It granted benefits to employ- ees by instituting an arbitration procedure during the campaign and by materially assisting employees to obtain personal bank loans. Finally, Respondent made repeated threats that it would engage in sham bargaining should the Union be selected, and threatened economic retaliation by closing the plant in the event the Union won the election. These unfair labor practices, directly affecting all of Respondent's employees, were intended to, and did in fact, undermine the Union's majority strength. In these circumstances, we find that "employee sentiment, once expressed through cards, would, on balance, be better protected by a bargaining order." Having determined that the Union represented the majority of the employees in the appropriate unit, we find that Respondent violated Section 8(a)(5) and (1) of the Act by refusing the Union's demand for recognition. We further find that Respondent is required to presently bargain, upon request, concern- ing any terms and conditions of employment, as to which it would have been required to bargain had the Union been recognized on July 9, 1975, the date on which the Union demanded and was refused recogni- tion. We need not require bargaining as to anything prior to July 9, 1975, since all of the violations committed prior to that date are otherwise remed- ied.9 3. Inasmuch as the Union has been the exclusive representative of the employees in the appropriate unit since July 9, we find that Respondent violated Section 8(a)(5) and (I) of the Act by incorporating the arbitration procedures into an employee manual distributed in August. We shall order Respondent to return to the status quo ante by rescinding the arbitration procedure. We also find that Respondent violated Section 8(a)(5) and (I) of the Act by materially assisting employees to obtain personal bank loans. We further find Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally N.L. R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 9 Trading Port, Inc., 219 NLRB 298 (1975). Chairman Fanning, in accordance with his concurring opinion in Trading Port, finds that the obligation to bargain arose on the date of demand. July 9. 1975. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transferring the work at its Berea, Ohio, plant to the plants in Westlake and Medina, Ohio, in December, without bargaining with the Union as to the decision to transfer and its effects on the employees represent- ed by the Union. While we now order Respondent to bargain with the Union over the decision to transfer and its effects, we find it unnecessary to order that Respondent reestablish the Berea plant inasmuch as the decision to transfer was based on economic factors, all the 36 employees involved accepted transfers to Respondent's other plants, and it would place an undue burden on Respondent to reopen the Berea plant.10 We also find it unnecessary to award a backpay remedy, since the employees at the Berea plant have accepted transfers to Respondent's other locations without financial loss, and the Union has retained its bargaining strength by continuing to represent the employees at the Westlake plant." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Donn Products, Inc. & American Metals Corpora- tion, Westlake, Ohio, their officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith with United Furniture Workers Local 450, United Furniture Workers of America, AFL-CIO, hereinafter the Union, as the exclusive representative of its employees in the appropriate unit set forth herein below concerning the decision to close the Donn Products, Inc., plant at Berea, Ohio, and the effects of the discontinuance of the plant on such employees. The appropriate unit is: All production and maintenance employees, including shipping and receiving employees, plant janitor, the paint technician, the chief inspector, assistant foremen, leadmen and probationary or production trainee employees of the Respondent at its two facilities in the Cleveland area, namely, Donn Products, Inc. and American Metals Corporation, 1000 Crocker Road, Westlake, Ohio, excluding office clerical employees, techni- cal employees, engineers and draftsmen, produc- tion clerk, foremen, and all professional employ- ees, guards and supervisors as defined in the Act. (b) Unilaterally, without prior notice to or consul- tation with the Union, instituting a binding arbitra- tion procedure. 'o Cf. Burroughs Corporation. 214 NLRB 571 (1974). zt Cf. Mobil Oil Corporation, 219 NLRB 511 (1975); Interstate Tool Co., Inc.. 177 NLRB 686 (1969). (c) Unilaterally, without prior notice to or consul- tation with the Union, establishing a system of materially assisting employees to obtain personal bank loans. (d) Refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit. (e) Granting its employees a binding arbitration procedure in order to dissuade them from prounion activities, establishing an unprecedented system of materially assisting employees to obtain personal bank loans, threatening to move its business to other locations, interrogating employees about their union activities and about the union activities of other employees, threatening to discharge employees and to prosecute them because of their union activities, telling employees they would be disciplined more harshly because of their union activities, promising employees an improved bonus system to induce them to abandon the Union, or threatening to bargain in bad faith. (f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the right to self-organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all employ- ees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody it in a written signed agreement. (b) Upon request, bargain in good faith with the Union with respect to the decision to transfer all the work from the Respondent's plant at Berea, Ohio, to the Respondent's plant at Medina, Ohio, and the effects of the decision on unit employees, and, if an understanding is reached, embody it in a written signed agreement. (c) Rescind the arbitration provisions which were formally incorporated into Respondent's employee manual distributed in August 1975. (d) Post at its places of business in Westlake and Medina, Ohio, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, 12 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 118 DONN PRODUCTS, INC. shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the election in Case 8- RC-9998 be, and the same hereby is, set aside, and the petition filed in Case 8-RC-9998 be, and the same hereby is, dismissed. of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an 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 WE WILL NOT fail or refuse to bargain collec- tively in good faith with United Furniture Workers Local 450, United Furniture Workers of America, AFL-CIO, as the exclusive representa- tive of our employees in the appropriate unit set forth below concerning the effect of the decision to close the Donn Products, Inc., plant at Berea, Ohio, and the effects of the discontinuance of the plant on such employees. The appropriate unit is: All production and maintenance employees, including shipping and receiving employees, plant janitor, the paint technician, the chief inspector, assistant foremen, leadmen and probationary or production trainee employ- ees of the Respondent at its two facilities in the Cleveland area, namely, Donn Products, Inc. and American Metals Corporation, 1000 Crocker Road, Westlake, Ohio, exclud- ing office clerical employees, technical em- ployees, engineers and draftsmen, produc- tion clerk, foremen, and all professional employees, guards and supervisors as de- fined in the Act. WE WILL NOT unilaterally, without prior notice to or consultation with the Union, institute a binding arbitration agreement. WE WILL NOT unilaterally, without prior notice to or consultation with the Union, establish a system of materially assisting employees to obtain bank loans. WE WILL NOT refuse to bargain collectively with United Furniture Workers Local 450, United Furniture Workers of America, AFL-CIO, as the exclusive bargaining representative of the em- ployees in the unit described above. WE WILL NOT grant our employees a binding arbitration agreement in order to dissuade them from prounion activities. WE WILL NOT establish an unprecedented system of materially assisting our employees to obtain personal bank loans to curb their union activities. WE WILL NOT threaten to move our plant to other locations to discourage union activities. WE WILL NOT interrogate our employees about their union activities or about the union activities of other employees. WE WILL NOT threaten to discharge employees or to prosecute them because of their union activities. WE WILL NOT tell our employees that they will be disciplined more harshly in the future because of their union activities. WE WILL NOT promise an improved bonus system to induce our employees to abandon the Union. WE WILL NOT threaten to bargain in bad faith. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist United Furniture Workers Local 450, United Furniture Workers of America, AFL- CIO, or any other labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. WE WILL, upon request, recognize and bargain with the United Furniture Workers Local 450, United Furniture Workers of America, AFL- CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, embody it in a written signed agreement. WE WILL, upon request, bargain collectively in good faith with United Furniture Workers Local 450, United Furniture Workers of America, AFL-CIO, as the exclusive representative of our employees in the appropriate unit concerning the decision to close the Donn Products, Inc., plant in Berea, Ohio, and the effects of the decision on 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit employees, and, if an understanding is reached, embody it in a written signed agreement. WE WILL rescind the arbitration provisions which were formally incorporated into our em- ployee manual distributed in August 1975. DONN PRODUCTS, INC. & AMERICAN METALS CORPORATION DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hearing in this consolidated proceeding was held at Cleveland, Ohio, on July 12 and 13, and on August 16 and 17, 1976. The complaint in Case 8-CA-9464 issued on May 4, 1976, against Donn Products, Inc. & American Metals Corpora- tion, here together called the Respondent, on a charge filed on September 18, 1976, by United Furniture Workers Local 450, United Furniture Workers of America, AFL- CIO, here called the Union. In Case 8 RC-9998, a Board conducted election was held on September 10, 1975; the Union filed objections to conduct allegedly affecting the results of the election. The Regional Director directed a hearing on the objections, and the two cases were then consolidated for single hearing. The issues presented are: (I) whether the Company interfered with the election, which the Union lost, so that the results must be set aside and a new election held; (2) whether the Respondent restrained and coerced the employees in violation of Section 8(a)(1) of the Act; and (3) whether such unfair labor practices were so aggravated and pervasive that the Respondent must be ordered now to bargain with the Union without any other election being held. Briefs were filed only by the Charging Party and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Donn Products, Inc., and its wholly owned subsidiary called American Metals Corporation, are engaged in the processing and production of ceiling and partition systems, with their principal place of business in Westlake, Ohio. Annually the two companies, together here constituting the Respondent, shipped products valued in excess of $50,000 directly to points outside the State of Ohio. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that United Furniture Workers Local 450, United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A Picture of the Case The Union started an organizational drive among the Respondent's employees about March 1975, and in August it filed a petition with the Board requesting an election. The Respondent consented to an election and it was held on September 10, the Union losing by a vote of 148 to 115. The Union then filed formal objections to the election and a charge accusing the Company of unfair labor practices, including unlawful refusal to bargain on request. The activities of the Respondent's agents said to have consti- tuted both interferences warranting setting the election aside and violations of the statute are virtually the same. For this reason, and because he felt there was merit in the unfair labor practice charge, the Regional Director ordered a hearing on the objections and issued a complaint, and then consolidated the two proceedings. From the start of the Union's campaign and continuing to the day of the election, there was a barrage of propaganda, both written and oral, poured upon the employees by both the Union and the Company. Leaflets of all sorts were distributed by union agents and an employee organizing committee on the one hand, and by management representatives on the other. The Union held many employee meetings and the Company did the same. And of course, as always, the Union kept telling the employees why they should select the Union as their bargaining agent, and the Company advanced one argu- ment after another why they should vote against union representation. No charge is made that the Union violated the law in anything it told the employees in its campaign activities; the case is solely against the Company. Did any of the things it said to the employees - in writing or in speeches - exceed the limits of that freedom of speech spelled out in Section IO(c) of the statute? Did it promise any improvements in conditions of employment, or threaten to take away any existing benefits, in order to improperly influence the employees' votes? If so, were such promises and/or threats such as to violate Section 8(a)(1) of the Act? If the Company's propaganda fell short of illegal conduct, was it nevertheless such as to amount to interference with the election? The complaint also alleges that on July 9, 1975, the Union demanded recognition as exclusive bargaining agent in an appropriate unit, which is precisely spelled out in the complaint. The answer admits the appropriateness of the bargaining unit there described, and admits the fact of refusal to bargain. The parties stipulated that there were, at the critical time of such demand and refusal, 287 rank-and- file employees in the unit. The General Counsel placed into evidence 156 regular authorization cards, all signed by employees within the unit before the day of refusal to bargain. There is an attack by the Respondent upon the validity of these cards. But assuming, for the moment, that the cards are valid, at least enough of them to establish majority status for the Union, the question is then presented whether the violations of Section 8(a)(1) commit- ted were sufficiently "flagrant," or outrageous as to justify an affirmative bargaining order in remedy. See N.L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 120 DONN PRODUCTS, INC. Violations of Section 8(a)(1) There is testimony by employees about two major meetings of employees held by the Company shortly before the election, one on or about September 5 and another on September 8, 2 days before the balloting. Principal spokesmen for the Company were Donald Brown, presi- dent, and Francis Martin, manufacturing manager. The second meeting was a dinner party, of the kind the Company holds annually, but this time the wives of the employees were for the first time also invited. Brown and Martin spoke at length, and the employee witnesses repeated what they remembered hearing, very often of necessity paraphrasing what they had heard. The General Counsel placed into evidence about 10 leaflets - some distributed by the Company throughout the plant and some mailed to the homes of the employees individually. The Charging Party then added to the record exhibits about 17 more pieces of campaign literature given out by the Company, again to each and every employee, almost 300 persons. The Union had to be given greater latitude in offering its evidence because an employer may very well do things before an election which may sustain objections to the election but fall short of amounting to unfair labor practices. The end result of all of this is that the record as a whole is a massive conglomeration of repetitive vituperation by the Company, maligning criticism of the Union, its agents, its representatives, and its methods. Many of the Company's attacks upon the Union, and assertions of why it would be against the interests of the employees to join, are belabored again and again without limit. In a sense, there is an implied suggestion in this case that careful analysis of each and every phrase uttered, or written by management, will reveal prohibited coercion and restraint - a sort of argument that if one will look carefully maybe unfair labor practices can be found. I do not think the scheme of the statute calls for such a search by the Hearing Officer to unearth proof of misconduct by such a technique. I think, rather, given the massive quantity of the evidence as a whole, that a proper procedure would be to consider those complaint allegations which specify with some precision what it is about the Respondent's activities that is now to be faulted. I can only consider the contentions actually advanced and evaluate them in the light of the proof. 1. To start with, can it be said that when an employer bombards employees with too many leaflets, too many letters, criticizing the union, and urging the employees against collective bargaining, the fact of such massive campaign of itself removes its activities from the realm of permissible expression of opinion and places them in the prohibited category instead? Maybe so, but, as will appear below, that question need not be answered in this case. 2. A number of times throughout its literature, the Company referred to the unioneers as "defectors," "disloy- al," "con-men," "con-artists," and even "sons of bitches." The unioneers were called "rabblerousers." More than once the Union is called a "parasite union." The argument is made, more by the Union than by the General Counsel, that the mere use of such offensive and divisive words is a form of coercion, and therefore an unfair labor practice. But the question is not whether one or the other of the contestants in a Board election behaves nicely, politely, or as though it were all a "tea party," to use an ancient phrase. One need not act restrained in voicing a contrary opinion in the area of industrial relations; indeed, one seldom does. Moreover, it has long been held by now that the American worker is sufficiently sophisticated to pay little attention to inflammatory words. He does not hesitate to use them himself on the picket line. 3. In a June 17 letter to all employees, President Brown wrote that whatever the Union was offering them they could as well receive directly from the Company. Adding that the Union might offer to obtain arbitration for the employees, he then said he had investigated the possibility himself, through the American Arbitration Association, that he had finalized arrangements with that group, and that thenceforth whenever "a dispute arises which can not be settled with the Company" it would be disposed of through arbitration. The Respondent then formally incor- porated the new arrangement with the employees in a revised employee manual distributed in August, the month preceding the election. By thus surrendering a part of its unilateral authority over the employees' conditions of employment, the Respondent gave them a direct benefit they had not previously enjoyed. That Brown, the presi- dent, did this for the express purpose of curbing the employees' prounion resolve is conceded. I find that by granting this binding arbitration arrangement to the employees, the Respondent violated Section 8(a)(1) of the Act. Cf. N.LR.B. v. Exchange Parts Company, 375 U.S. 405 (1964). 4. Another widely distributed company circular, also passed out in August, announced that in order to provide "a little extra cash" for the employees, the Company had "arranged for a preferred loan plan with National City Bank." The brochure then advised "if you need the money now, just call our personnel dept. and Mrs. Fouts will arrange for your loan." A number of employees did obtain loans. At the hearing Martin, the manufacturing manager, said that the invita- tion for employees to go to the personnel department meant only that Mrs. Fouts would then tell the employees the name of the bank officer to ask for when he went to the bank to apply for the loan. Martin also added the Company had arranged with the bank for the borrower to repay the loan by payroll deductions, courtesy of the Respondent, which in fact the Company has been doing. There is no other evidence in the record on this subject. If Martin told the truth, the announcement of a "preferred loan," and that "Mrs. Fouts would arrange for your loan," was a fraud upon the employees. More likely what it all meant was that the Company gave assurance to the bank that there would be payroll deductions - in all probability arranged in advance with the borrower's signature, a form of assistance to the employee in obtaining money when he needed it. It was a clear benefit conferred, again clearly to buy the goodwill of the employees against their prounion resolve. I find that by such announcement and the arrangement, the Respondent violated Section 8(a)(1) of the Act. 5. A precise allegation in the complaint is that at the September 8 dinner meeting, where President Martin spoke 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at length on why the Union should be rejected 2 days later, he announced that the employees "could form a committee for the purpose of solving problems as to food vending machines in the plant." The only evidence on this point is agreement by Brown, at the hearing, with the following leading question put to him by the General Counsel: "Q. You said something to the effect, 'One of the things we can do is form a small committee of you fellows at the shop, because it is your money and your food, and I really don't care.' " "A. Exactly." On whether any such committee ever came about the record is silent. If this suggestion by Brown was tantamount to an unfair labor practice, it was a weak one indeed. 6. In late August the Respondent distributed to all the employees a 14-page printed document replete with extended statements detailing the nature of collective bargaining, the duties and prerogatives of the Employer when dealing with a union, the Company's past methods of treating the employees, its plans for the future, and, in general, explaining, once again, why the employees would be better off without the Union. Among the messages thus conveyed there was one saying clearly that in place of the present system of "plant wide" bonuses, the Company was preparing, and hoped to put in effect "in the near future," a production bonus, or an operator's bonus, which would be more advantageous to the employees. At the hearing Manager Martin explained away this critically timed statement to the employees so shortly before the election as no more than reference to a longstanding idea of the Respondent, and added, without contradiction, that up to the day of the hearing nothing had been done about the proposal, no new system of any kind had been devised or put in effect. I agree with the complaint allegation that by thus promising the employees an added benefit in their employment - regardless of whether it was ever granted - in the middle of its antiunion campaign - privileged as it may have been, the Respondent violated Section 8(a)(I) still again. A comparable promise, also a violation of the statute, was voiced by President Brown on September 8, about dental insurance to the employees, when, among much more, he said "the dental program is something we should be looking at as time goes by, because it is going to get to the point where it is within the realm of possibility." 7. Another act of the Respondent, called illegal in the complaint, is that in December 1975 it closed its Berea plant and moved the employees from there to its other two locations. Prior to that day the Company operated in three locations - Berea, Westlake, and Medina, and the employees of all three were included in the organizational campaign and together, as all parties agreed, constituted the appropriate unit. The complaint says the Respondent violated the Act when it closed the Berea location because it did so unilaterally, without first bargaining with the Union about the move. This means that before it can be found that the Act was violated in this respect, it must be found that the Company was obligated to bargain in December notwithstanding the results of the election - adverse to the Union. There is no allegation the move constituted restraint and coercion per se. On this point Gerald Wasik, an employee, testified that during a speech to the Berea location employees before the election President Brown said "he could take the company and move it anywhere he pleases at any time," "he could just take off and move the company anywhere he chooses at any time." Brown did not contradict this testimony. But Martin, the manager of manufacturing, who was also present at the September 5 meeting, quoted Brown as saying there was a possibility the Berea plant might have to be closed and its operations moved to Medina for economic reasons, as there were insufficient orders for work there and the place was too expensive to continue. And when the Berea plant was closed, in December, all its employees - about 36 - were offered transfer to the other locations and all accepted. No one was hurt economically by the move. Economically justified as the move may have been, and there is no basis for questioning that explanation by Martin, there was no reason for the president to have talked about the possibility in terms that would of necessity tend to intimidate the employees just 5 days before the balloting. I credit Wasik's version of Brown's words, and I find that the president chose to speak of the projected move in such a way as to give the employees to understand that the Company would exercise its managerial preroga- tive to their disadvantage. The talk Brown was giving that day was essentially for the purpose of persuading the employees to vote against the Union. It was not the right moment to promise plant closure on any basis. I find Brown violated Section 8(a)(1) of the Act by what was in effect a threat of reprisal. 8. Dale Steyer, a member of the employee organizing committee, testified that one day early in the campaign Martin called him into the office to ask was it true he had passed out union literature "specifically part of the Hartley Act." When he answered yes, Martin asked did he know "it is against the law." Martin closed with saying "as long as you admit it [passing out union literature], I want to make it perfectly clear to you that if you are to ever do it again that you can be fired." Steyer's final statement as a witness was that he knew, when Martin thus talked to him, the supervisor was talking about distribution of union litera- ture on company time. Wasik also recalled a talk with Martin in May or June about union activities: "[Hie told me that he did not care about any union affiliation, but if he caught me doing anything outside the law, he would prosecute me to the fullest extent of the law." The witness' earlier affidavit states Martin's admonition to him somewhat differently: "[H]e told me that he didn't care what my views were regarding a union and what activity I engaged in regarding the union as long as it was legal, but that if I engaged in any illegal activity, he would prosecute me to the full extent of the law." I find that by interrogating Steyer about his union activity and by threatening to discharge Steyer and to prosecute Wasik for distributing union literature in the plant, Martin violated Section 8(aX)() of the Act. There was no rule in effect at the time regulating union solicitation or distribution on the company premises, and, as Steyer testified, without contradiction, there had never been any such rule during prior organizational campaigns. When an 122 DONN PRODUCTS, INC. employer voices direct threats of discharge for union activity in the plant, vague and oblique references to "the law," or to "Taft-Hartley," will not serve to remove the outright intimation from the area of prohibited restraint and coercion. If an employer wishes to reserve working time for work, as is its right, it must do so clearly, without equivocation or ambiguity. Hyland Machine Company, 210 NLRB 1063 (1974). Here, not only was there no under- standable rule announced in advance of the union activities, but the manager took no pains to assure the employees of their protected rights. 9. Twice in August, when Steyer was in the office of Allen, the production manager superintendent, Allen started talking of the Union with the employee. According to Steyer, the first time "He asked me, 'I understand there wasn't too many people showed up at the meeting. How was the turnout last night?' " Steyer answered, "I would like to terminate that part of the conversation." Allen continued nevertheless as follows: "Not too many guys showed up .... Was it the same old crowd?" A week later "he made reference to the union again, and that I was becoming pretty heavily involved in the union campaign. I said, 'Well, by now, that's pretty common knowledge. I am on the Organizing Committee.' He said, 'Well, you know, people in the front office are making remarks . . . people around here have long memories, and if you people should happen to lose, then . . . in a year, they have long memories . . . everybody breaks rules now and then, and for the most part, if they are not serious violations, they will let it go .... Perhaps in your case they may not let it fly by.' Allen's story is that it was Steyer who always started talking union because he was worried about how "secure" his position was, about possible "reprisals" by the Compa- ny against a member of the employee organizing commit- tee. At one point the superintendent said it was always Steyer who brought up the subject of the Union in their talks. But he also said the employee came in "repeatedly after anytime we would have one of our handouts, a meeting in which his name was named, he would come in ...." It then became clear that what the witness was saying was that Steyer has been discussed by management in its meetings always just before the Union was discussed between the two in private conversation. Q. You did mention something that Dale [Steyer] would come in whenever his name would come up in a meeting? A. That's true. Q. That his name was used in meetings by the Company then? A. Not so much his name as the group of organizers in the plant. Q. Their names came up quite a bit? A. It was a general kind of thing, perhaps not specifically named but addressed to the organizing committee in the plant. If the superintendent talked of the Union with Steyer after the employee's name had been discussed in the inner councils of management, it follows it had to be Allen who started the talk. How else could Steyer know that he had been the subject of comment by his supervisors in conference? With this, plus Allen's general demeanor at the hearing, I credit Steyer and I find that Allen interrogated him about the union activities of other employees and threatened him with possible sterner discipline in the future if he persisted in his activities with the organizing committee. By such conduct of Allen, the Respondent again violated Section 8(aX)() of the Act. 10. A final complaint allegation is a blunderbuss assertion that by the totality of its conduct - including the extended speeches to assembled employees and unending writings handed to each of them - the Respondent made them understand that if ever it were faced with the legal duty to bargain with the Union it would simply refuse to do so in good faith, that it would arbitrarily frustrate the entire collective-bargaining process - Section 8(aX5) or no Section 8(aX5). On this score the evidence is nebulous, vague, indirect, and the oral testimony of employees more argument than clear statement of fact. Again and again they spoke of what management agents said "in effect," gave their understanding of what they were being told in words without end, and simply responded to conclusionary leading questions. On the very lengthy testimony and voluminous documents here received, this question is comparable to the frequent issue of whether an employer bargains hard or in bad faith. Brown did say "you can lead a horse to water, but you couldn't make him drink," "you could force the horse to drink, but at times you almost drown the horse before he will take a drink of water." He also spoke of what happens when unions strike, and how the Respondent would prepare to defend economically against such pressure, dramatically explaining how employees suffer in such cases. A critical phrase, quoted by the employees a number of times, was that the bargaining would start "from scratch." At the start the witnesses made every effort to convey the thought that what the president was saying was that his first position in possible negotiations would be that the employees work for nothing, receive no benefits at all for their work, but would only get anything if the horse were forced to drink. It then became clear that the managers told the employees both in writing and orally that whatever wages or other benefits they were then enjoying would in no event be lost, and only that raises or other new benefits would have to be extracted with difficulty from the Employer. This one aspect of the general charge of "bad faith promised" illustrates much of the testimony. After carefully considering all the record, I do not think a factual finding is warranted that the Respondent did announce in advance that if the Union were certified it would violate the Act by not bargaining in good faith. In fact, the witnesses even admitted that at times Brown said exactly those words: that he would bargain "in good faith." Refusal to Bargain: Affirmative Bargaining Order In the light of the unlawful restraint and coercion type of unfair labor practices committed by management before the election, it is clear there is merit to the Union's exceptions and that the results of the election must be set 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aside. If the Union desires, a new election must be held when the Regional Director deems proper. But the real substantive question in this case is whether the unfair labor practices committed were of such a character that it must be held they now "preclude the holding of a fair election." Restated, the question becomes whether it can reasonably be expected that the Board's usual remedial order - posting of notices and a cease-and- desist order directed to the Respondent - will serve to dissipate the intimidating and coercive effect of the past improper conduct by management representatives. It is an area of Board law where no single prior decision of the Board can be determinative precedent for a following one because no two situations are ever truly parallel. No one was actually hurt or prejudiced in his employment despite the unending talk carried on by the Respondent. There was no violation of Section 8(a)(3) of the Act; indeed, none is alleged. The move of the Berea employees to Medina was not illegally motivated; it was caused by economic necessity, and concession on this point by the General Counsel logically means the employees were equally aware of such objective reality. And what benefits were promised were more illusory than real. Brown spoke of one day establishing a better production bonus system, but nothing was ever done about that. The right to arbitration over employee complaints is a thing of value, and interrogation is a form of coercion. But if, as the Supreme Court said in Gissel, supra, unfair labor practices are to be classed in minor and major categories, surely the ones committed here must fall into the lesser class, those which may not be called "flagrant" or "egregious." After careful consider- ation of all the factors relevant here to this basic issue, I conclude that an affirmative order to bargain in remedy is not warranted. Were it necessary to decide, I would find that the Union in fact had been authorized to bargain on their behalf by a majority of the employees in the appropriate bargaining unit on July 9, 1975, when, as the complaint alleges and the Respondent admits, there occurred the demand and refusal. The parties stipulated that there were that day 287 employees at work; an exhibit listing the names was placed in evidence. To this number must be added Michael Kalus, because the parties also agreed his "termination date" was July 9. There were received into evidence 156 regular authoriza- tion cards, all dated on or before July 9, 1975, all alike, and all in unambiguous language authorizing the Union to bargain forthwith on behalf of the individual employees who signed them. The cards all read as follows: United Furniture Workers of America Local 450, AFL-CIO I hereby request and accept membership in the above-named Union, and of my own free will authorize it, its agents or representatives to act for me as collective bargaining agency in all matters pertaining to pay rates, wages, hours of employment and other conditions of employment. Of these cards, 50 were authenticated at the hearing in person by the employees who signed them. The signatures to 29 additional cards were authenticated by the oral testimony of witnesses who said they saw the employees sign the cards. And 77 cards were authenticated by witnesses who testified in each instance that the cards were handed to them by the signing employees within moments after they had signed, in intimate gatherings where the cards were passed out in solicitation and where immediate signing took place. The Respondent attacks the validity of these cards on two asserted grounds. The first is that employees did not intend what the plain printed language says, i.e., that the Union be their bargaining representative, but only that an election might be held. The test now, of course, is not what employees may later say their intent once was, but rather what they were told at the time of signing the cards. Absent clear and probative proof that union representatives, or other solicitors to signatures, expressly told the employees at the time that the sole reason for signing was to obtain an election, it is the wording of the cards - the plain English there written and which everyone of the employees involved read before signing - that must govern. Several union meetings were held in March, when about half of the cards were signed, and a number of meetings took place later. Donald Rieger, International representa- tive of the Union, was present at all the meetings. Robert Sebera, business representative, was present at six or eight meetings. I do not believe there is adequate evidence to impair any of the cards on the ground the employees were told the purpose was solely for an election. Both Rieger and Sebera testified clearly and convincingly that a number of times the employees were told the cards were to be used to make immediate demand for recognition, and that only in the event recognition were not achieved would the Union move towards an election. Each of the union agents denied they ever told the employees the purpose of the cards was only to bring about an election. Several employees who authenticated their cards also spoke on this subject, but their testimony cannot offset the writing on the cards they read before signing. They did recall there was talk of an election, and yet, from Larry Doehr: "All it was an indication that you are interested in obtaining this particular union as a bargaining agent." Neil Barrett said he heard an organizer say that "if you sign that then they need, I think, 50 percent or something that they were telling me and that would be enough to vote for a union, to have the vote for a union." Another employee, Donald Ulrich, quoted an organizer as saying "that if a certain percentage of the cards were turned in, there would be an election," and that "they would like a certain percentage of the cards in before they would even try for an election." Randolf Rusnak started by saying no one from the Union told him why they wanted the cards signed, and then added: "They just wanted to take like a poll to see how many people would be interested." The second contention adverse to the validity of the cards is that the Union illegally bribed the employees by promising them freedom from initiation fees or dues on condition that they sign before the election, or before the Union won recognition. On this score, too, the testimony of the two most active union agents who ran the organization- al campaign could not be clearer. Rieger testified he told 124 DONN PRODUCTS, INC. the employees: "Dues were $8 a month. Employees were told that. They were also told there was no initiation fee for any present employees." He denied telling any employees "if they signed a union card they would not have to pay union dues ... initiation fees." "We said that dues would be first collected after a contract was signed, and we said there would be no initiation for any present Donn employees, and we also stated that in the leaflet as well." From the testimony of another employee, Terrence Keane: "Somebody told me the rule, and I can't tell you who told me, but somebody told me that anybody who was working, that is working at the company when the Union gets in, doesn't have to pay. It is whoever comes in afterwards." And the other union agent, Sebera, said: "We told the people present that definitely in all cases that there will be no Union dues or no initiation charge up until the time that the contract is consummated with the Company." The union meetings started in March, and the campaign continued for several months thereafter. On April I the Company distributed to each of the almost 300 employees a printed document entitled "Opinion Poll," with the following statement: I understand there is a rumor being circulated through the plant concerning the payment of the union initiation fees. A loyal employee informed me that you have been told if you did not sign a union card now that in the event the union wins an election you would be required to pay an initiation fee and those who did sign the card would not have to pay any fee. This paper then asked each employee to check whether this statement by the Employer was or was not his "understanding." In reference to that question 10 employ- ees checked the affirmative box. How many of the other 277 employees said "No," the record, of course, does not show. These 10 answers are of no significant weight against the validity of the cards, including those signed by the special 10 employees. Rumor, absent factual evidence, will not suffice to support what is essentially an affirmative defense. One must also ask: "What is a rumor? Who starts a rumor?" When an employer floods the plant with a flat statement that there is a rumor, who is it that has started the rumor?' It was an obvious device to create, and implant into the minds of the employees, what is now called a Savair defense. See N. L R.B. v. Savair Manufactur- ing Co., 414 U.S. 270 (1973). The Respondent called some witnesses who, in part of their testimony, said they heard the union agents tell the employees, in the one or two meetings they attended, that dues and fees would be waived only if they signed now. I do not credit these witnesses against the clear testimony of Rieger and Sebera. Givens, chief inspector of quality control, said he heard Rieger say "if anybody would get a Union card and mail it in at this time, that they would be exempt from paying any initiation dues." The witness added this was the only meeting he attended, and that he did not stay throughout. I "The nature and ingenuity of man is unchanged as of old." Cf. Virgil. Aeneid, Bk. IV. 1. 160-161; Rossini, The Barber of Seville, act 3, "LaCalunnia." Keifer, assistant foreman, testified: "He said that if union cards were signed now, that there wouldn't be any initiation fee if you signed a card now." This witness said he heard no talk in the shop to this effect. He could not recall what date or what month he went to the meeting, what questions he asked or what questions the other employees asked. Mehlman, an inspector, said: "[A]t one of the meetings it was stated that if we had a card signed and in by the time the election came up, we would not be liable for initiation dues." The witness then added Sebera, at a meeting, "confirmed it." And then, on cross-examination, came the following: Q. Do you recall at any of these meetings, either Mr. Rieger or Mr. Sebera stating that there would be no dues or initiation fees until a contract was signed between the Company and the Union? A. Yes, I heard that also. Kaniecki, then quality control assistant foreman and now quality control foreman, started by saying that at a meeting he heard Rieger and Sebera say, "that any of the guys that signed a petition card during a campaign would be exempt from paying initiation fees." Like Mehlman before him, Kaniecki then reversed himself: Q. Did you hear Mr. Rieger or Mr. Sebera make a statement that no employee would have to pay a Union initiation fee until after a contract had been signed with Donn Products? A. Yes. Lee Townsend, an ordinary employee, was also called by the Respondent. Asked in his opening statement what the employees were told in the meeting about payment of initiation fees, he answered: "That they would be after negotiations were taken care of." With some prodding by company counsel the witness then said that those who signed cards would not have to pay. His later answer followed a series of leading questions. Finally, Townsend said he arrived late at the meeting, and did not recall with exactness what was said. With talk, as was to be expected, about the plant, of rumors of one kind or another, the Union promptly distributed another leaflet, clearly reassuring the employees of its earlier message that there would be no dues or initiation costs on anybody until after the Union had become established. Where the testimony of the Compa- ny's five witnesses as shown above conflicts with that of the union agents, I credit Rieger and Sebera. On the total record, I find that the Union in fact represented a majority of the 287 employees in the bargaining unit on July 9, 1975, when the Respondent refused to extend exclusive recognition on request. 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set out in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. By granting its employees a binding arbitration agreement in order to dissuade them from prounion activities, by establishing an unprecedented system of materially assisting employees to obtain personal bank loans, by threatening to move its business to other locations, by interrogating employees about their union activities and about the union activities of other employees, by threatening to discharge employees and to prosecute them because of their union activities, by telling employees they would be disciplined more harshly because of their union activities, and by promising employees an improved bonus system to induce them to abandon the Union, the Respondent has engaged in and is engaging in violations of Section 8(a)(l) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 126