Centre Engineering, Inc.

CENTRI. IN(GINEE:RING, INC Centre Engineering, Inc. ad Cindy L. Hutton and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CIC. Cases h- CA- 11798, 6-CA 1 926, and 6-RC-8307 Novernmber 20., 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING ANI) MEsMIBIERS JE.NKINS ANt) I Nt.l1 O On January 9, 1980, Administrative Law Judge Joel Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel and the Union filed cross-exceptions and support- ing briefs, the Union filed a brief in partial support of the Administrative aw Judge's Decision, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Hoard 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, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge only to the extent consistent herewith, and to adopt his recommended Order as modified herein. I. Respondent operates facilities at two Pennsyl- vania locations, State College and Osceola Mills, where it employs a total of approximately 400 em- ployees. In April 1977, an election was held among employees in the two plants to determine if they wanted to be represented for collective-bargaining purposes by the Union. The Union did not receive a majority of the votes cast in that election, and subsequently filed unfair labor practice charges and objections to the election. These objections were withdrawn by the Union, which filed a new peti- tion on September 18, 1978. and began a new orga- nizational drive to represent Respondent's employ- 1 Respondent. ie (GCerlrall (Conilslc. andil the tUnion haies exceptcl to certain credibhilit fltdings rlade h the AdmJinlistlraiie I ls Judg It , the Board's estabhlished polic no(t to oserrule an iadnlinliltrarlle l. I a judge's resolulion, with respect to credlhility unless the clear prepoinder- ance of all (of the relesant evidence co nvinces us thal the resolutlollh iare incorrect .Siandard Dry Wtil Produit Inc.. 41 NI RH 44 (1050), etlfd 188 F2d 362 (d Cir 1'511 ,e hace carefull' exanmined the record Iand find no basis fr resersirg ltis findings IThe Unionl also contends that the Admniistrattrse I Jdgiz sv a hiased againlst (ieltral (Counsel inton krilnesre concrle illg heir teiinlo- ny on the colltelt If spcet lies nlladle hx Respondelll's prlesidetlt We itlC carefully reviewed the recorld and the I)ectislion il hghit f the lUnion, coinlentilons, ad conclude thete are ithtlhul nril In thl rtgard t. r nourt that the Adnlinlstra;ll e l.ass Judge ollld lite C(ontent f the sp't'lhc ils admittcl hby RptIdell l. correspod lle it Irge Irlc lrl \itl he t t -llrrl, 11y of Lfe s ll)sst' 253 NLRB No. 28 ees.2 An election was held on November 17, 1978, and the Union again failed to receive a majority of the votes cast. It subsequently filed unfair labor practice charges and objections to the election, which are the subject of the instant case. 2. The Administrative Law Judge found, and we agree, that in this proceeding Respondent violated Section 8(a)(l) of the Act by threatening plant clo- sure, coercively interrogating employees regarding their union activities, threatening employees with more rigid discipline and discharge if the Union were selected, threatening employees with loss of work and detrimental working conditions if they designated the Union as their bargaining repre- sentative, promising benefits, threatening to reduce benefits, and threatening to prosecute employees for engaging in protected activity. ' 3. The Administrative Law Judge also found, however, that Respondent did not coercively inter- rogate several prounion employees, did not unlaw- fully attribute to the Union the failure of Respond- ent to grant wage increases, and did not, by means of Respondent's literature and speeches, threaten loss of jobs if the Union prevailed in the election. We find merit in the General Counsel's and the Union's cross-exceptions to these findings. Re- spondent also excepts to the Administrative Law Judgc's finding that it did unlawfully predict strikes and the futility of bargaining as a consequence of unionization. We agree with the Administrative Lau, Judge's findings on these latter points but do so for the additional reasons set forth herein. (a) 7/he interrogation oJ' Uniont adherents: At the end of a shift in early September 1978, 4 Foreman Dixie Witt asked employee Elizabeth Weller why Weller was for the Union now when she was not in favor of the Union during the prior organiza- tional campaign. Witt also spoke to Weller about complaints against an employee who worked in Weller's area. Weller stated that she was concerned - I Ahough Ithe objections A ere it hdralls. a hearing ; as hell ciln- cerninig Ih uf.lir labohr practices The Board suhsequinly Iaffirmed all a.dnlitlilia.i law jdge's deternililloatn that Respondenl iolated Sec Si)(l Ilif tlie Actl h threalerlli tg renove henefits If employres seelected the UInilo C(,nir trnogltering nc. 246 N.RB 3t2 (179) ;' We also agree s ith he Admnlstratise laAu Judge that Responiden did Ilt siolalc Sec l8(a(3) ad (I) if the Act hby uspcnding emploiee Ittilll IIl setI tclci llg, we do rlto rel? )n lhe Adnilliistraise Iai, Il1ges disie, 1sitn if Poera .Svlt (tcorpeprtt n. 21h N R IQ2 (1qg W' furilier agree thl t Respondentl did not s'tolalc Sec (al(lt) of the A h5 prlmulgatilng ;I rule restricting etmplohee from alkillg i a c temtler) ilnrlg hreak In agreeing s:ill the tkdministraile l.ils Judge il 1his pilli t kc di'ati ss ls reliantce on tile fiilnig thll erlipliees ',ec u .. ti Inlped n (rIercilstig their rights glilaralileed y Scc 7 if the Act (hil.irrilll I iiturnling afl Me tlbehr Jenkiirs t1ottld, ot tle lierits. filid the sispell itrl or Iituttoll ntila u ril. hecit e the? regard lite rlo-dtirlbhullOll rtl . hich she slIolaled ils ilas fIi See ltheir dlssetl in /iI; v. Int rrnuaitltn- ai. nr . 21 1 N Rl 744 (119741. hich hoerser,. r purpos of this )e. sisi,,i. he\ t,ll lrlg ciil n p tlecll Illlll ut erruled ' All datb-u m Ii> uniless otheri is Idilc.ated 41 I)EC ISI)NS ()F NATIONAL I.ABOR RELATIO()NS B()Ak) about disparate treatment of employees as well as wages and conditions. Witt replied that problems with employees could not be resolved if the super- visors were not informed of them. Also, in early October, Supervisor Edward Elders asked employ- ee Carol Schaeffer why she needed to wear a union pin. Schaeffer, a member of the union orga- nizing committee who had worn a union button at work prior to this incident, replied that they should talk during breaktime, not during worktime. How- ever, Elders insisted that they could discuss the matter then, and asked Schaeffer what company problems necessitated a union. Schaeffer then stated some reasons as to why the Union would be beneficial and why she wore a union button. Fi- nally, during the course of a conversation in early October, Supervisor Gary Boone asked employee Clair Ziegler, "What the hell do you want to bring in the Union for?" Boone also asked about Ziegler's union button, and stated, "Why don't you take the damn button off . . .[it] ruins your uni- form." In another conversation with Ziegler in late October, Boone asked if the Union was going to win the election. Ziegler said "maybe." 6 The Administrative Law Judge concluded that Respondent's questioning and comments to Weller, Schaeffer, and Ziegler, through supervisors, did not constitute coercive interrogations in violation of Section 8(a)(1). In support of his conclusions, the Administrative Law Judge relied on, inter alia, his findings that these inquiries were addressed solely to individuals who had previously demon- strated their union position, and were not made in the presence of other employees. The Administra- tive Law Judge also relied on the finding that these incidents were bereft of harassment or intimidation. We disagree. The Board has recently declared that the "prob- ing into employees' union sentiments . . . even when addressed to employees who have openly de- clared their union adherence, reasonably tend[s] to coerce employees in the exercise of their Section 7 rights."7 Further, the fact that neither threats nor intimidation was involved does not justify an em- ployer's intrusion into an employee's views toward a union or unionization generally. In each of the in- stances involved here, supervisors inquired into the ' 'I h Admiiilstraiise Laws Judge also found that during the curse of this clversatioln Flders threalenled more rigid disciplilne ad discharge of unIproduclivC workers. in iolalion of Seca S(a)(1) of the Act We agree with these findings " Ihere were further aspects to hese colnversalltions which are not relc- vant here I PPG Industrit Inc., Ie.rington Plant. Iihber (iluas Diviion. 251 N RB 1146 (1Iq19) Accord: Puaeco. a Divoion if' ruehauj Co'rporatin 237 NIRB 399 ( 1978) 111 4Iutomottive 'Iectrrical ProductI Divtin. 231 NL RB 878 (1977. Ited Jonet Manuccturing (ronpuny. 239 NRBl ht2 (1978); .4luaetndau ( Hnire & Cuable Div.., 241 NIRBI 1091 ('179) nature of an employee's reason for supporting the Union, and such actions reasonably tend to inter- fere with the free exercise of an employee's Section 7 rights. Moreover, when viewed collectively, it is clear, contrary to the Administrative Law Judge, that these interrogations were not isolated or de minirnis. Accordingly, we conclude that Respond- ent violated Section 8(a)(l) when its supervisors in- terrogated employees as mentioned above.8 (b) Attributing to the Union the failure of Respond- ctnt to grant wage increases: In late October, Fore- man Michael Crozier engaged in a conversation with employee Carol Rogers. When Rogers asked Crozier why Respondent did not provide better benefits, Crozier stated that, although Respondent had planned a raise for employees, Respondent could not give it "because their [sic] hands were tied." The Administrative Law Judge reasoned that, because Respondent's supervisor responded to an employee inquiry in a moderate tone and with- out "gratuitous effort" to place blame on the Union for the denial of increased wages, Respondent did not violate Section 8(a)( ). The Administrative Law Judge further concluded that, because of the prior proceedings involving Respondent and the Union, Respondent's ability to confer new benefits was constrained under Board law. However, ac- cording to the Administrative Law Judge, this did not prevent Respondent from answering in an "ac- curate and temperate" manner to employee ques- tions on benefits. We are unable to agree with the Administrative Law Judge that Crozier's remark did not place a stigma on the Union for Respondent's refusal to grant wage increases. Respondent's theme of plac- ing blame on the Union for keeping Respondent's "hands tied" was first played immediately after the Union withdrew its objections to the April 29, 1977, election, so that a new petition could be filed. On August 23, Respondent distributed to employ- ees a "notice," signed by Company President McCrea, which stated, inter alia: The IUE attempted to frustrate the majority of the employees by filing objections to the elec- [ Ihe Adniistratise al.aw Judge also dlsnliiscd the (a)(ll 1) allegation rsolilig Supersisor loolrie hcause It ,a as nlot alleged in the complaint liss;eer, the pleadings how that the cimp aint wsas amended prior to hearing to allege pecifical . inter uala, to it lstances of interrogation hi Itioonle ilcludinlg he one found herein Moreoser, esen if such all ;Imelindrmctl had not heen mlade. e would stil l find a vlolatiion of Sec 80a)(1) hecause the issue as prscented and the facts ere full) litigated li the hearing, and, conlltrary to the Admlnistratl\ve l.as Judge. sufficient- lN related to he subject matter of he complaint See, e.g. I C Ihunm- on.. In., 23() N.RB 80()8 1977) Mniher Pnelo would find that Re- spondentls iterrogatiol of Weller. Schlacffer and Ziegler violalted Sec (a)( 11) of the Act In his ie., this rilerrogation. hell cotnsidered in he total colltexl if Resporndellt', ullaswuI actionlls during the CaTllIpalgl. ul11- ]ifIIIIll restrained ard coterce R podent's niploece 420 CINIRFE NGINI{RING, INC tion, these objections, as we said then were based on phony charges .... They were filed in order to tie the Company's hands and keep the lUnion in the picture. Apparently the IUE does not believe in the majority rule, and wanted to interfere with your right to work without Union interference. Further, it is well settled that, in deciding wheth- er to grant benefits while a representation election is pending, an emplover should act as if no union were in the picture. Thus, if an employer witih- holds wage increases or accrued benefits because of union activities, and so advises employees, it , io- lates the Act. " ' lowever, w here employees are told expected benefits are to be deferred pending the outcome of an election in order to avoid the appearance of election interference, the Board will not find a violation of the Act. Applying these principles to the instant case, we find that Crozier unlawfully attributed to the Union Respondent's failure to grant the apparently planned wage increase. As noted by the Adminis- trative Law Judge, Respondent could have lawful- ly refused to implement a wage increase "to avoid the appearance of interference." Here, however, Crozier introduced the topic of the planned raise but then stated Respondent could not implement the plan "because their hands were tied." These statements were not made in the context of Re- spondent explaining that benefits were being with- held to avoid influencing the outcome of the elec- tion. To the contrary, the statement naturally im- pressed upon the employee that a raise would have been received but for the union campaign. And it is clear that Crozier impliedly referred to the Union by his "hands tied" statement, because Respondent had previously blamed the Union for "tying its hands," and there were no other actions other than the union organizational campaign which could have had such an impact. Further, Crozier made no assurances that the raise would be given after the election campaign ended, or that it would be made retroactive. In these circumstances, we find that Respondent unlawfully attributed to the Union its failure to grant a wage increase, in violation of Section 8(a)(1) of the Act. 12 9 Esex International. Inc. 21(b NLRB 75575, 571975) "' Libertyl .Nurvn, fHomis. In d a I.lbhrrv Ilouc, .ursing Hornm, 2 h NLRB 456 (1978) t Chauiehldl-nd.rson Co., Inc. dhiu Iruss-ppan ('ompaLy, 23 NI.RH 50 (1978) 12 Sourdough Sales, Inc.. da Kur Rate Kid and Shop Kik, 246 NLRB 106 (1979): Arrow Molded Plastics. Inc., 243 NLRB 1211 (19791 cf Baker Manufacturing Co., Inc., 218 N.RB 1295 (1975); Hdro Conduit Corporation, 24( NRB 48 (1979) arco Incorporated. 16h9 NLRB 1153 (1968), relied on by the Administrative .au Judge. Is noil t the contrary In that case, an employer granted wage increases to employees not i- volved in the election and placed the blame on the Board for not giving increases to employees involved in the election The Hoard concluded the (c) Rpondelnt s campaulin propcganda-ilplied rhrerats oJ / o johbs srrikes, /fitlil ofl unionization: The Geineral Counsel and the Union have excepted to the failure of the Administrative Law Judge to find that certain of Respondent's campaign propa- ganlda threatened emlployees with loss of jobs, and con\9veyed the impression that their efforts to orga- nize Respondent would be futile. The General Counsel and the Union agree with the Administra- live Law Judge's finding that Respondent did un- lawfully suggest that a strike would be the conse- quence of employee organization. Respondent Lc,- cepts to this latter finding. Early in its campaign, Respondent distributed a notice to employees stating that involvement \vith the Union "would be a terrible mistake." The dc- ument, circulated prior to the filing of the repre- sentation petition. also stated: At Erie Technological Products in Erie. Penn- sylvania, the IUE [the tnion] represented over 120() employees. During the years of IUE rep- resentation. the conimpany started opening plants in other areas including locations out- side the country. The employees in these areas were not represented by the IUE. As the com- pany opened these plants the number of em- ployees in Eric kept getting smaller and small- er until the beginning of this year when only a few hundred were left. No one knows for sure why the company took the action it did/*/ ' tre I ccbrli loglcal is. trlplsccs [licl -.cr 'IX) plie ,Ii No als., S't, - t lhc, arc rll rcprc rClTcd h5 .i unilslt This leaflet also explained that: This year, the IUE called a strike at the com- pany [Erie Technological]. The price of the strike was high for the workers. When it was over only 30 to 45 union members returned to work, the rest had been permanently laid off. A total of over 1100 workers have lost jobs at Erie. Does this sound like a record to be proud of' What did the IUE do for these members'? Membership in the International IUE Union has gone down over the past year because of the large number of electrical companies that have been forced to close. One reason for clos- ing could have been that they could not com- pete price wise with the foreign competition, empluyer's statement sas not coercir, e. since it did not seek t) shift to the petitioner the burden or onus for the failure io grant benefits Here, Cro- zier implicated the Union 421 I)tCISI()NS ()F NA I ()NAI I.A()R R I.AlII()NS (),\RI) because they were burdened with union coln- tracts and lost their flexibility. The IUE is just like any other business once one operation fails (like the one in Erie) they look for a place to open another one (State College) so that they can continue to sell their products (unionism) and charge members a fec for it. Our customers also know that when they place an order with us they don't have to worry about union called strikes interfering with delivery dates. But each year it gets more and more difficult as more companies are opening plants in ftoreign countries and foreign corporations are competing for our market. Our future growth is dependent upon 1(X) per- cent effort by all of us. Respondent mentioned both the possibility of job loss, referring to the closings of plants where the Union organized, the chance of strikes, evidence being at nearby plants with which the Union wvas involved, ' and the consequence of strikes, namely loss of jobs. Respondent returned to these themes, and the references to the occurrences at Erie Technologi- cal, throughout the campaign. Thus, on October 2, Respondent told employees that a union "cannot furnish you with work or pay you a salary. (Just look what happened to Erie Technological em- ployees in Erie, Pa.)" A month later, on November 9, Respondent again referred to the Erie Techno- logical strike and the loss of jobs. It told the em- ployees: The contract was settled in April of this year. Since April, three of every four IUE employees have lost their jobs because the work they were doing no longer exists in Erie, Pennsyl- vania. It's worse than that, because it's not over with. It is estimated that the IUE will represent less than 40 employees at Erie Tech in Eric by next March. This will mean 9 of every 10 IUE employees will have lost their jobs. Respondent also informed its employees that it op- posed the Union because its management had "worked for a company [Erie Tech] which was dominated by the Union and have seen first hand the negative results of this Union's domination." Further, on the day before the election, Respond- ent distributed a handbill which stated, inter alia: T ' Ihe EIric Icchnllhglca l plant was localed in Lric. P'crl,,lvnlilta. up proximalely 17t riles Ifront Rcsplndenl' planIs i Shatc (llcge iand O(- ccola NMilks Sometimes, union demands, if fulfilled, result in a company being non-compettitive. In many IUE plants, this resulted in cost-cutting and your jobs. ()ften, companies say "no" to un- reasonable demands. Where this is happening, a large number of IU' plants have gone on strike, hurting both the employees and the company. We would not like to see our oper- ations disrupted. You can avoid this possibility by voting "No." Respondent also discussed the possibility of job loss through captive audience speeches by its presi- det, McCrea. McCrea told the employees that Erie Technological once had employed 1,20() em- ployees but, subsequent to union organization, enm- ployed only 4() employees. e mentioned that Erie Technological had several hundred jobs in Mexico. McCrea also referred to the fact that Erie Techno- logical was auctioneering its equipment, some of %which Respondent was purchasing. Considcring this evidence, the Administrative Law Judge determined that Respondent unlawfully emphasized the inevitability of strikes by virtue of Respondent's hard-line bargaining. However, the Administrative aw Judge concluded that, al- though "not free from doubt," Respondent did not unlawfully threaten employees with threat of job loss through plaint closure or reduction of work. He reasoned that "[r]ealities demonstrate that to enlihten and frighten is the central objective [of propaganda] and to repress, through unfair labor practice findings, comment so designed is to con- done outright rejection of Section 8(c) without regard for fundamental statutory and constitutional principles." Although we agree with the Adminis- trative Law Judge's conclusions that Respondent's campaign propaganda improperly linked the threat of the inevitability of a strike as a consequence of unionization, we disagree with his findings that such propaganda did not constitute a threat of job loss. It is axiomatic that an employer who threatens employees with job loss if they select a union as a bargaining representative violates Section 8(a) (1) of the Act. 4 Contrary to the Administrative Law Judge, we believe that the effect of the repeated reference to the consequence of unionization at an- other conipany, located in the same community as Respondent, was to create an atmosphere of fear and futility. 5 In referring to the closing, at Erie Technological, Respondent consistently linked the presence of the Union, as bargaining representative, i Vulr (,apuitr (t p;Pa . a l)tison / l R It lorv & ( o., lc, 1h2 N R 14tM. 140)4 l It t 1 >7) I W I Arucg, ( ,. 224 N RI 16tt (197ht 422 ('1NI'RI NGINFI RIN6. INC to the substantial loss of jobs. Further, Respondent strongly implicated the Union as the culprit for the job loss, yet never fully explained the total circunm- stances at rie echnological. T'hus, in referring to the reduction of employees, Respondent stated that no one knew "for sure" why Erie Technological did so. Yet Respondent noted that, since a contract had been reached, three out of four employees at Erie Technological had lost their jobs. Moreover. Respondent called to the attention of its employees the fact that Respondent's management had worked at Erie Technological when the Union or- ganized it. and thereby invited an analogy to what could occur at Respondent's plant if the employees unionized. Indeed, according to Respondent, the Union "dominated" Erie Technological, and the "negative results" of that domination-job loss and moving to Mexico-were clear. Respondent's cap- tive audience speeches, in the week before the elec- tion, served as reminders to the employees of con- sequences of unionization. Thus, Respondent con- stantly brought its employees to the brink by fear. By its calculated statements, Respondent sought to imply that selection of the Union as bargaining rep- resentative would result in the same end as at Erie Technological; i.e., by its existence and domination the Union would cause Respondent to lose jobs. Accordingly, we find that Respondent's campaign statements on loss of jobs violated Section 8(a)(l) of the Act. In a similar vein, Respondent's campaign barrage linking the Union with strikes was, as the Adminis- trative Law Judge found, a violation of Section 8(a)(l). As the General Counsel points out, Re- spondent through its campaign literature and speeches introduced the topic of strikes no less than 20 times. ' In a variation of the same theme, Respondent wove together the probable futility of bargaining and the authority of the Union to order a strike to secure its demands. As the Administra- tive Law Judge noted, Respondent informed its employees that the Union could not force Re- spondent to pay more than it wanted, that the Union could not require Respondent to agree to any proposal and could not insure any increase, that all benefits were negotiable and that employ- ees "could get more, you could stay the same, or you could get less." These ideas were not isolated or objective statements. Rather, they were a con- tinuation of Respondent's unlawful tactics adopted during a prior election campaign. 17 There, as the administrative law judge found and the Board agreed, Respondent's officials also conveyed to em- ployees the sense that unionization would lead to 'A See A4 f. Stuah (oIpn, 218 NI RI 817 (1975) ( Entr I nterng, Inc, 24ts NL RIt 32 Respoldent's elimination of existing benefits, which would leave the Union only one bargaining alterna- tive, a strike, with its resultant consequences. In the instant case, Respondent reminded employees that bargaining "could take quite a while," and the UnJion's only recourse to secure its demands might be to lead the employees out on strike. These re- peated statements of Respondent's intent to make negotiations difficult, which would lead to strikes, contrasted with Respondent's "assurances" that it would do the "best it can for all employees." In these circumstances, we agree with the Administra- tive I.aw Judge that Respondent's communications exceeded the boundary protected by Section 8(c), and violated Section 8(a)(1) of the Act. ' 4. The Union filed an objection to the election on the basis, inter alia, that Respondent's Excelsior list 1': was defective. The Administrative Law Judge found that Respondent failed to comply with the Board's Excelsior rule which requires employ- ers to submit an election eligibility list with names and addresses of all eligible voters. We agree. As more fully set forth in the Administrative Law Judge's Decision, the undisputed facts reveal that Respondent furnished an Excelsior list which was not alphabetized on a surname basis, nor ar- ranged according to department assignment or plant location. 20 Instead, the employees' names were grouped together on a first name, first letter, basis; i.e., all employees whose first name started with the letter "A" were listed together, in random order, and so on through the alphabet. Further, al- though addresses were provided for almost all em- ployees, 2 ' only 25 out of the 424 addresses includ- ed zip codes. The form of this Excelsior list was in sharp con- trast to that provided by Respondent in the first election conducted at Respondent's plant, involving the same unit and Union as in the instant case. That list, submitted for the 1977 election, was alphabet- ized by surname, segregated by department number, and included zip codes. So, too, did the eligibility list prepared by Respondent for the No- is See Donn Products, In( & 4rnercan M.etals Corporation. 229 Nt RH It) 1977); HIerhbert allen. dh/a Smithtown .ursning Home. Smithtiorn, Sithtown Senior Hlome, and .Snithto,n Ldge. 228 NL.RB 23, 27 (1'77). Marathon etulhc Building (Companp. 224 NLRB 121. 124 (1976). Centre Engineermng. Inc.. upra Member T'enllo would not find that these leaf- lets and speeches. slanding lonte. oserstep he bounds of Sec. 8ic) and thercbhs Lolale Sc 8a) I) f the Act However, he joins in this Deci- sion because he finds that, \when considered along with Respondent's oltcr actlns which we hare found iolated the Act. Respondent's aser- lions conlalned therein could nly have hd the effect of unllaw fiull io- ercine rmployees in the exerlt of heir Sec 7 right to seek repre.nlta- tion 1 I:*c'lwor i 'ndcrwcar Inc. ] 5 N RH 12 I. 124 ( 1701 I I, plant, vere in, ill in Ih elec l on -' No adlresscs were lilsted for 2 emplo ecs 421 I)Ft (CSI()N S ()F NATI()NAL I.AB()R RELA'II()NS A()kl) vember 17 election involved here, but which Re- spondent refused to share with the Union. In the above circumstances. we conclude that Respondent constructed the Excelsior list objected to by the Union in bad faith, or, at least, with will- ful or gross negligence. As found by the Adminis- trative Law Judge, Respondent possessed the capa- bility to submit an Excelsior list alphabetized by surname and including zip codes. Respondent had done so for the previous election, and executed an eligibility list in that manner. It maintained a file of employee names in a similar manner. Moreover, the letter from the Regional Director requesting that Respondent file the Excelsior list stated, inter alia, that "[t]o speed preliminary checking and the voting process itself, the names should be alphabet- ized (overall, or by department)." It is clear that Respondent's conduct here frustrates the purposes of the Excelsior rule: to maximize employee expo- sure to all arguments concerning union representa- tion, and to eliminate needless challenges. The rule in Excelsior is simple and easy to administer, and while the Board has not been slavish in setting aside elections because of some devitions from its guidelines, it has not favored such deviations, nor has it abdicated its responsibility to monitor com- pliance with the Excelsior standard to maximize communication to employees and to insure that its election processes are not the subject of calculated disregard, or willful or substantial deviations. The facts here substantiate the Administrative Law Judge's finding that Respondent's Excelsior list was constructed in bad faith or, at the very least, with willful and gross negligence, and thereby warrants setting aside the result of the election.2 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Centre Engineering, Inc., State College and Os- ceola Mills, Pennsylvania, its officers, agents, suc- 2 The recent decision in St. Itrun(i Iospital. 249 NLR B 18I (8(), i not to the contrary. In that case, the Board colluded that responldent did not iolalc Sec. (a)(l) by supplying an Exr(elir list Which contained only full surnames and first and middle initials, and failing to provide cor- rect addresses after learning "many" addresses contained on the rceiior list were incorrect. The Board reasoned that the "hare fact" that the list contained only full surnames did not prove the list was designed to impede communication or frustrate Hoard processes. And the addresses supplied were the most recent ones Respondent possessed Here, unlike the situation i St., rani.s, Respondent's conduct is alleged as objection- able. not as a violation of Sec. 8(a)(I) Further Respondent's actions it the instait case, especially when mncasured against its conduct in the prior elecltion, dlntolslrate that its Excelsior list was designed to impede com- munication and frustrate Board process Cf T'he Loster Ilouw., 186 NI.RB 148 197()) Ixrua Chrorian linivrsirv, 22(0 NLRB 396 ( 1975) cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 23 1. Insert the following as paragraphs l(b) and (c): "(b) Informing employees that wage increases have been withheld because of the presence of the Union. "(c) Coercing employees by statements implying that selection of the Union as bargaining repre- sentative would lead to the loss of jobs." 2. Substitute the following for paragraph l(b) and reletter the paragraph as (d): "(d) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORI)FRFI) that the election held on November 17, 1978, in Case 6-RC-8307 be, and it hereby is, set aside, and that Case 6-RC-8307 be, and it hereby is, remanded to the Regional Direc- tor for Region 6 for the purpose of conducting a second election. [Direction of Second Election and Excelsior foot- note omitted from publication.] :' Since the Administrative l.aw Judge's recommended Order already requires Responldent to eeose and desist from c icrciely interrogating etiploycees coilcerilnig their ulil tiactisit, et illd it lllecessarvy to add anrl order to r'trled thle additiionat ocrcise iterrogitilos founid ahisc T'he Adniir alliru isle a1 Judge used the liarross ease-and-deslst laln- guage, "In ant like ior related," ralicr ihan the bread illjulcti e lai - guage, "In any iolher manlnelr" In li(kmnow I-,ords. In( , 242 NI.- R 1157 (1979). the Board slated its plicy that a hroad order was warranted inly where a respondent is shtswn it) havse lc proclvNity to iolate the Act,i or has enlgaged in such egregious or idespread misoilliduct as ito demllrn- stralc a genleral disregard fr the empI csee' fundamenital stallutniry rights We fild that a broad ijunllcve rder against Respondelt is warranlied here because of tihe repctitive nature of Rcsptildent's cliduct APPENDIX NoTrlcE To E.NPIOYI.iS POsrTID BY ORDI)R OF HE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opporut- nity to present evidence and argument, it was de- termined that we violated the National Labor Rela- tions Act, as amended. We have therefore been or- dered to post this notice and to do what its says. The National Labor Relations Act, gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own choosing 424 CENIRI 1N(iIN tRIN(;, INC' To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WI: WiI.I NO' coercively interrogate our employees concerning their union activity. Wi Willtl. NOI threaten our employees with a cessation of operations, discharge, stricter discipline, or a reduction of benefit levels if they designate the Union as their representa- tive. Wl WVIl t. NOT threaten our employees with prosecution in the courts because they have engaged in activity on behalf of the Union. Wl. WII 1. NOI create the impression among our employees that we will take positions in collective-bargaining negotiations which would result in a reduction of their benefits, aniid lead inevitably to a strike thereby subject- ing them to economic disadvantage. \WV. Will I NO' tell our employees that they will be given benefits if they reject the Union as their representative. Wli WltiJ NOt inform employees that vwage increases have been withheld because of the presence of the Union. Wl. 7111. NOI coerce employees by state- ments implying that selection of the Union as bargaining representative would lead to job loss. WE, Wil.l NOI in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. CIENTREI EN(iINEIRING, INC. DECISION S I Al I'(MENT 01: THE CASI JOEl. A. H.-RMAIZ, Administrative Law Judge: This consolidated proceeding originated with the filing of an election petition in Case 6-RC-8307 on September 18, 1978. Thereafter, pursuant to a Stipulation for Certifica- tion, Upon Consent Election, an election by secret ballot was conducted on November 17, 1978. The tally of bal- lots shows that of approximately 407 eligible voters, I ballot was void, 163 were cast for, and 216 against, rep- resentation by the Petitioner, with 18 ballots challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, Petitioner filed timely objections alleging misconduct on the part of the Employer interfering with the results of the election. While said objections were pending, a consolidated complaint issued on March 30, 1979. in Cases 6 CA 11798 and 6-CA-11926.' Said complaint, as amended, al- ' The original nlair labor practice charge n Case 6 CA-I 11798 as filed by (Cindy Itulitol ir Nonemhber 16. 1978. and in Ce 6 CA 11926 was filed b) the L n il (1I I)ccember 28. 78 leges that Respondent independenitly violated Section 8()(1) by coercive interrogation, solicitation of griev- ances, and threatening employees with discharge. plant closure, more rigid discipline, reduced benefits, and law- suits because of their union actiily v The consolidated complaint further alleges that Respondent violated Sec- tion 8(a)(1) by promising employees benefits if they re- frain from designating the Union. by informing emplos- ees that they failed to receive wage and benefit increases because of the Union. by promulgating a rule precluding employees from leaving company property during cof- feebreaks, and. finally, by campaign propaganda threat- ening that (designation of a representative would be futile. would inevitably lead to strikes, and result in the loss of jobs and earnings. The complaint also alleged that Respondent violated Section 8(a)(3) and (1) of the Act bh suspending employee Cindy Hutton because of her union acti ily. In its duly filed answer, Respondent denied that any unfair labor praotices were committed. O()n March 30, 1979. the Acting Regional Director for Region h, issued his "Order Directing Hlearing on Objec- tions arid Notice of Hearing." wherein he concluded that Petitioier's O()biections 2. 3, 4, 5, 6, 7, and 9. raised issues of fact vwarranting a hearing. Since cocxtensive with mat- ters alleged as unfair labor practices in the consolidated complaint, he ordered that Case 6- RC 8307 hbe consoli- dated with Cases 6-CA 11978 and -CA 1926. By sep- arate order dated March 30, 1979. the Acting Regional Director consolidated the cases for purpose of hearing. ruliiig, and decision by an administrative law judge eBased o the foregoing, a hearing as conducted at State College. Pennsylvania, befoire me, on July 30 and 31 and August 1 and 2, 1979. After close of the hearing, briefs were filed on behalf of the General Counsel. the Charginlg Party-Pletitioner, and the Respondent-Employ- er. Upon the entire record in this proceeding. 2 including my opportunilty to personally observe the witnesses while testifying and their demeanor, and consideration of the post-hearing briefs, I hereby find as follows: FINI)IN(GS OF F\(-r I. IHIt HItSINESS OF TI HE RIiSPONDENT MPI.OYI R Respondent Employer is a Delaware corporation, with facilities located in State College. ennsylvania, and Os- ceola Mills. Pennsylvania, from which it is engaged in the manufacture and nonretail sale of electrical compo- nents and resistors. During the 12-month period preced- ing issuance of the complaint herein, a representative period, Respondent delivered goods and materials valued in excess of 50,000 from said facilities to points outside the Commonwealth of Pennsylvania, and received goods 2 Aller the close ol the hearing, a handwritlen note prepared by cln- phl)T \ 'cn1 lI)ecker as sulbminted h Rspondent for inclusioti il the rcord as Rp xh 22 Respondcnls requesr In this respeet, hasilg bhell rtladc ill .ic-.ilrdl tilt atrl iderllanllilg h;arlre h; all cunsel and Ir rli,cd at during the hearing, is grantllre and the rcord i hereh 5 reopenid for his hinliti purpo, Pursuaril to request o countscl fr he (eiieral Conlsel cerial inad, cr- tcnclcs ipperlriF i the official rancrlpt are hrebS i nolted and orrecl- 425 DtECISI()NS ()F NA'I IONAI. I.ABOR RELATIO)NS ()ARI) and materials valued in excess of $50),(X)( directly from points outside he Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent Employer is now, and has been at all times material herein, an employer engaged ill commerce within the meaning of Section 2(6) and (7) of the Act. I. IHll I ,x)R OR(iAN.ZAIION INVOIl VI) The complaint alleges, the answer admits, and I find that International Union of Electrical, Radio and Ma- chine Workers, AFL CIO-CLC, is now, has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. t11. lil Al I til.) UNFAIR I ABUR P'RACI ICIS A Background and General Overvie' o the lvutes Respondent employs in excess of 40() employees at its two facilities in State College and Osceola Mills, Penn- sylvania. Of those, some 50 are assigned to the latler. which is located some 35 miles distant from State Col- lege. Operations at both locations are conducted on a three-shift, 24-hour basis. here is no history of union representation fior any of' these employees. This proceeding is concerned with a second attempt by the Union to obtain representaltion rights with respect to employees at said plants. The initial campaign opened in 1977 and, on April 29, 1977. an election was conduct- ed among said employees il Case 6-RC-77h5 with te Union failing to achieve desiginationi by a maijorty. As here, the Union filed unfair labor practice charges and objections, accusing Respondent of unlawfully irllerfer- ing with that election. Subsequently. the objectiotis to election were withdrawn; the unfair labor practices pro- ceeding, however, was litigated, with the Board recenitly finding a single violation of Section 8(a)(l) in colnection with speeches made by Responident's president, Gerald McCrea, and its vice president, Charles Gecrtsori, and specifically their remarks implying that existing benefits would be taken away from employees if they selected a collective-hbargaining representative. ' hal proceeding was limited to alleged independent 8(a)t I) allegaltions ad was devoid of claim that Respondent engaged in discrini- ination proscribed by Section 8(a)(3). (See 246 NI.RB No. 121). In August 1978, apparently after withdrawal of the ob- jections in Case 6-RC 7765, 4 the Union opened a new organization campaign, leading to the filing of the peti- tion on September 18, 1978, in Case 6-RC-8307. In the ensuing election, conducted on November 17. 1978, the Union was again on the short end of a 163-to-216 vote. The complaint and objections which are the subject of this proceeding emerged from that campaign. Through them, Respondent is charged with a variety of unfair labor practices as well as preelection misconduct inter- fering with free choice. A single allegation of 8(a)(3) dis- crimination was included, growing out of a suspension of :] See JD) 553- 71. shich issued on Augusi 3, 1979, foil lowing clisc of thlle irlnstant hearing I The rcqus to se er Case -RC-7765 fronl the earlier unfair laohl practice prceeding and to withdraw the objhetions w;ls gratelcd h Ad- rinllisrrativ I.law Judge Sarrica ,n August 14. 147 slightly more than 5 hours meted out against employee Cindy Hutton. As in the earlier unfair labor practice case against Re- sponrdent, several allegations herein point to coercive statements made by Respondent's president, Gerald McCrea. Additional independent 8(a)(1) allegations rest upon separate incidenls, attributing unfair labor practices to no less than seven members of Respondent's supervi- sory staff. Finally, allegations and objections attack the antiunion propagarnda dissem inated by the Respondent through speeches anld ritten literature, as creating an overall atmosphere of fear and the impressioni that selec- tionr of a urnion wfould be futile and would lead to strikes arnd loss of jobs. 'The objections to the election, hile predicated upon unfair labor practice allegations, also urge that the elec- tion be set aside because the Esecclior list' submitted hy the Responident was in an "incomniplete, inaccurate and purposely confused . " forni. In addition It is cinlamed that Respondent's interfered s ili the election through (ierald McCrea's alleged surveillance of a union meeting. B. Concluding 'iTndingv I. Cases 6-CA 11793 and 6 CA-11926 a. lhe lleieCd di crinirraliorl I'he solitary instance of alleged discrimination relates to the suspensiol of Cindy lutton lor a prtion of her workday on November 3. 1978. At times material, Hutto(n was assigned to a area refelrred to ais the "I)e- paling" roori o the ccoilld shitfl t t he ()sceola Mills plant. ter supersisor .ias lon Kostyak Hluttonr described her uion activity as coinfined to at- tending union meetinigs andil th executioi of an authori- zation card. The record does not disclose whether her involvelrcllt ill such latter-s coilrienced before or ;fter the ictideit ill issue lere. Se was 1not a member of tlhe irplarit organizing comrlrmittee at ()sceotla. TIhe reasoti assignled b RcsporTIident for the SuspcnIsiTl of Hlutton v as based onl its allege(d belief that she distrib- uted union i literature in her %work area, wuile oil working time. Although the Company had no ritten rule imposing limitations on employee rights t distribute literature, Hutton conceded that it ,sas common knowledge and that she was minidful thiat employees were forbidden from engaging in such acti ity during worktime. As to what transpired, counsel for the General Coun- sel attenlpted to reconstruct the scenario through Hutton and fellow employee Donna Gavlik. It is undisputed that Hutton and another employee, Ann Sidorik perform their primary work in the depanzing room. After the first break on November 3 Donna Gavlik, a quality con- trol employee, was also in the depanzing room. Hutton testified that while she was working, Supervisor Kostyak entered. At the time, Ga lilk had a "paper" i her hand.7 Exc/luir 'indirear Inc. 156 Nl Rl 121 tl6 (96h ) I IniCss (Nhe sc ilicAtCedL, a.ll dles refer to 19'78 Itullo Itestlited Ihal shie a\ not silr exaert] what the paper was, but indllicalted ha she assumed tha IIt was prtlilil l i tcratU e I hlch she Coinrinued 426 C'N I' I:N(INl :RIN(t. IN( Hutton testified that Kosty;ak took the paperl f1r(l (io \ lik and looked at iullout. asking "'hre hdid thlis Ctl)Ci from." uttonl claims to have responded "ill here. At this point. accordiig to lutlonl Koty-ak said, "Cind you can leave." utlOn asserts th shle then denied t Kostyak that the paper helonged t her aski ng if' hc ,lill had to go. Kostvak allegedly replied. "Yes, vou can go home . .. Ken itcall will call ou when Oll are to 1o(m111t hack to k ork." lutolln cleaIied her mlichill a;llnd punched out at approximnalel 7:15 p.m. Donna Ga lik's ersioni was not entircl conlsiItcill Kwith that of Hutton. She indicates that while in thc dc- panzing room. Ann Sidorik relno cd the literature from her purse and sho, ed her the "Uliion paper" Sidorik and (Ga lik were discussing it htenl Kostyak ente-red. '1 the time, Sidorik, not (ia\lik, was holdiing li e tlocil- ment. Contrary to Hutton (avlik testified that Kosltak asked Giavik wkherc she got the paper. As (as lik re- called, sher esponded hy telling Kost ak that she got lih paper off of the shelf? and then left. Gavlik ould nor recall whether Huitton said aniything durinlg the incident Kostyak testified that he entred the depanzing rooml to locaite (iavlik, who had carlier asked him a questiol concerning holiday; pai ,As he entered the depanrlinr room, the three girls \crc standing around re-:ding .1 pamphlet. wNhichli \as held b, (avlik Kislyak akcd them where they got the pallphlet '" After nol initial rc sponse, hce repeated the inqquir, \ hcreupon lhutton said, "I give [sic] it to tIhell the u1lion g IVC 1l the painl phlet." K ostyak telifted Ithlat he took the pamphlt andl. told the girlst hat they \reC not supposC to b doiing what they had hci doing.'l andh left the room to call his h(oss. Kostyak aers thalt lie lhell ittnptcd t get Il in tilh with Ken e;ll, and x. ls un,,ucessflll so lie called Id Kolhc., Rsponidenl's vice presidcntl. rc:whinlg hilll at home. : Beanl .asi also) there. Kostlak reported to olhbe that luttol told hiiu that he had g il the other t o had sCe l cilrltr (ol 1 sil e ill [c Isilik ,oii t .lciilssIloptio.l poie C'l I.(T l (i:llk )oll( 1not oiisall Il htlhCer sihw c(cr hadll piosesMl ll of tIll paper Dulrllg Itle .Ilpllll (i: a lik l 1 ,IW alll w 111 11tl1 I-silil tli -,rk Accordinr g t1 (ialik. All Sidorik tlre nllll ,ilbgnltg tilr leTcltifis ointe a5 or the thcr t It i ioled l.lt ie reord Ito 15c ., 1 di5.Jtl1C5 \iteI cr oI nt Il (i.1%lik \Rols hli I hirt i l i t'lrtiit Il;illl'si l1d ,Ill 11 llllhiH ,'lrinnent'l1 ait 1tc% prior o tis iT1icJId lt (! . lilk t.ilrns T lake said il,s ht hles i,}l "fldli't A lil it l l t IllS hodx mi trouhlc (" tollrail to 1, l, (iClCrall (,IIIlsCI. I flinrd thi KtI ls.k i. e lll ll i1 hlil ]N Jo lTlle Jil.It dlslfih ll(ll Ok11 1111 1 l lh t , Io-rk ;tlt'. r;l[llCl t1;lil1i dtiIlmr a hrealk p lid or iII zt a rea iln \. hlth mpi sCC iltli dl ithrlhli' 1lira lure lilte.r Cirl llltill% prt'cled hby he Al I recdi K lsak', IestlIllonIS thdl al tl point il e had ml kire lSedg- that thc do cunienl 1 I allI ll ri l spol rd Ctltrar5 To Ie l (iellel.i - lll l ,el, his testimlon Iin l t regard. r hl ilgih . prtlhi. l rtIltl, i t 1 rtlt' timing. i nol vice. d as maltr il illt odds klh either IlS .3ilriw , il hat he retrieved the document ronm (ial lk Itr lls fLrht teltlllti lhai Huth )n told hin it, crigiln as \.ith Illt illi 2 Kosak testified thal Sidorlk ad (i ik it e c jpain/lig oortl heftire he did Sidorik .a Inolt catled : Kolbe testified thal he receitr a tephO 1 c111 f'r-rn Ko,tak Ial approximailes 7 15 pm onI trFida. N' eltIhI I K t Ak reported hai Ci'Hrid IH ttOtl l Wail pas'lng Out literatlure ir hiiad literaturel I h Th -Isrk area Klhe eke Kad sk h. li k' *ti,. iarId i Iildltlid thil fli llon adIlTlitI I 1o taklig til nlt.allre itlIl i l. g1n .- I t KOUT l kob k111 firrted KqsIaks tetirnolln that he ntritle Kls.k to %-lid ht liqln and hase her camliic' Kilihe t' N(l1dil girls a panphll it hich they were reading and that it ',as durinig *'.orkinlg hours. Kolhe tld Kostak to seind littoll hollte, alidl that hc would talk o her tm the next Monlday. Koslatsk asscrils that h returiled to the deparizing roonl, and told luttoll that he w,,as to pulnch out l[titllil denlltld that Kostyak lcft the lcpill/tilg rool)l and retlurled, in effect. claiminiig that lie sent her hoile otn the spot, shile hav;ing no opportuitN to consult wsith an super isor Ihc tiflloslig lonrlday, Klbe nrlt \ith Kostlyak and IJutto. Afte lc hearing heir cso,,is o ' s hat had oc- cilrctd. Kolhe advised thart lie x ns a tot iiterested ill de- termiltiinig whlo [sas rigeht olr r)t[i atjd w.ho ,.as telling hel trulth. Ws lieun IhitOlli xprcsscd omticern that herl sus- pCll'iOlln 11tL 'l Iiest iI1 . ttttlt f eil d o)\crtlllnC Kolbe illdicaild tha sc olitl th e \i1I tle osertle and Slt· liltd ro h- pC'nailt]d h olstid tlhc loss of he straiglit lie l ol 5:lida> itig}Ht. lpon cpt lnsidtring lie toltlitlting Clsolons iof the ex- cIaige bhet*ccii Kosta k :llld I ttilutt ot lFrida ecling i tig r It n iuc uinCIed tI hClies c thai \ti hltcecr ulltion aid Kstx ik, ini glod taith, construed her rctltlml k i Hli ri dllisslltil thal shIe ,s t\he solrlce Of thL litelrature Althugh this nliiludleCstandig resulted i IhC IsOs Oif pl atid sLuperlsiil en t' hlItt tll, and neither (laxlik ntr Slorik cre disiplined. I a cnviTiced that lis ltiliOll tis baed (,, c a geCtrlile betlief tlit l utto hes tl ilistilor f 1 iolatiti f ocolrnlpali\ plic\ said aletoll ol lhe istait record cannillot he ,iessed itas pretCxtial I-'r l le es Iic ldoes tt clearly establish thtt I lu titon s la iltot smplatlizer prior tIo this inci- ticlt, r thlat Rsporldlet held als belief that ste as. }iurthermroe. Rcspotident's belief that she had engaged itt tutiprottctl actixits-. even if mistaiken, arose in the ColItCXI Of' tilo COltileit oll Hlttoll's part, as eher os' nr testi- Miotn) (iscloes , tcmcrid prloteceted hy Sectio 7 of the t,I (Cf .I. R.BI v. flurnt & S'i,,,. 37) S 21 I ] "t)4), 'Fhl. General Counsel contends that even on the above facts, the discipline imposed involved discriminator en- forcenent f a no-distribution policy in that Respondcnlet c(IldOlIled( the lus o worktime b antiunion employees fior the purposes of distributing literature. In this conilec- tion, eCITployee Margaret Bumbarger. with corroboration tfrom employee Sandra (irenoble, testified that in ate ()ctober aitiullltion employee Bonnie Appleton ap- proached anlttunion employee Vicki Harpster after start- hig time. and asked her for a leaflet. Harpster handed Appleton the leaflet, which Harpster took to Ernie iacer a supcr isor, aid thell returned to her swork sta- tion. Bumnharger called her super\,isor, Joe lartley, re- K ' tt> ak icd 'l\ delle thail hl kTlt Iitlln "its for t I 1ll-m ,), itla1 Jlt' hiad o't, i ... I l '*.rlfring At illoln hationl prior Io, (tlt irl.ident i1 Ih l (lilet-lt ¢ ,.lolsel e liteids hit tlita ln u is dlisiiplnelt solet ,tL ' et [rot-l i il, a if [i-ll-lcratIir. ('f 1rLi-: t R1t, ( r ,,, A ,/, c; ( , 21' N RB J4!t) 1 l''l t,- lg tiomli 1l1,l 1l1 ai, lit[. %lkcrl 41g;iHIxl }tIltilil ~o h.1 % Lddl ; . g,*I !id falei bt'wt l1l ,1}I 0 l elilged i dlq btllitqll 1 Itc.lllt t i o . * .,ikilg Twoe. TIhT floicgolilm I, ,i oditf, "i0 1 ./,hi I' Jrlll' t cr' , M , 1l/ ] l[L ' I1 t II iv l'll. 11,r% Ipl[- 427 [)(DCISIO)NS OF NATIO)NAL. IAB)R RELATIONS 3()ARI) porting the incident. Hartley indicated that he would talk to those involved. Bumbarger observed that Hartley did speak to Harpster, but denied that she could overhear what was said. She testified that neither Appleton nor Harpster was sent home that day. Neither Bumbarger nor Grenoble actually saw the document that was ex- changed between Harpster and Appleton on that occa- sion, and their conjecture as to its nature is rejected. Citing Poria Sy.stcem Corp., 238 NLRB 192 (1978), the General Counsel contends that an employer who know- ingly permits antiunion employees to distribute literature may not lawfully enforce restrictions on work time dis- tributions as against prounion employees. The administra- tive law judge in Portu Syvemn appears to go even fur- ther, for it is there reasoned that where management en- gages in antiunion activity during working time, manage- ment is foreclosed from maintenance or enforcement of rules restricting prounion activity during working time. Experience with what goes on during union campaigns. suggests that it would he a rarity indeed if an employer failed to appropriate working time to discuss union issues either in captive audience speeches, individual confronta- tions between supervisors and employees, or distribution of its own antiunion literature. To hold that prounion employees are free, with impunity, to utilize working time, because management chooses to utilize such time for its own purposes raises serious questions under this Act. On the face of the decision in P'orta Syscmsev, one cannot be entirely certain that the Board in that case was called upon to review the above-described holding of the administrative laws judge. Although obliged to follow precedent of the Board, in view of the frequency with which the Board upholds the legality of no-distribution and no-solicitation rules on records demonstrating super- visors' utilization of work time to engage in conversa- tions with employees concerning the issue of representa- tion, this latter trend in Board decisions controls absent clear evidence that the Board has addressed itself to the ramifications inherent in the result apparently reached in Porta Systems. Viewing the issue as open, I am unwilling to subscribe to any rationale to the effect that a em- ployer must support affirmatively union activity, by al- lowing its working time to be appropriated by prounion employees to engage in worktime distribution or solicita- tion, simply because it chooses to wage its antiunion campaign during such periods. I also find that the inci- dent related by Bumbarger and Grenoble to have been too isolated to itself form the predicate for a finding of disparate discipline in the case of Hutton. Accordingly, as I find that Hutton was not engaged in any activity protected by Section 7 of the Act during the incident in question, and as Respondent acted on the good-faith belief that she had engaged in the unprotected distribution of literature in a work area, on working time, it is concluded that Respondent did not violate the Act in suspending her and thereby causing the forfeiture of some 5 hours' pay on November 3. Accordingly, the 8(a)(3) and (1) allegation in this regard shall be dismissed. b. Interfrence, restraint, and coercion (I) By Foreman Kostyak The complaint alleges that Respondent violated Sec- tion 8(a)( I ), by a threat, attributed to Kostyak, that the plant would close if the employees selected a union as their representative. In support of this allegation counsel for the General Counsel called employees Donna Corri- gan. Margaret Kephart, aid Nancy Smeal. A composite of their testimony is to the effect that, in early Septem- ber, they, together with Kostyak, were discussing pen- sions. Either Smeal or Kephart asked Kostyak if he had a pension. He said no, adding, however, that Kolbe was going to see what he could do for him. Smeal said that "We'll see what we can do about that." To this, Kostyak allegedly, while waiving his hand, responded, "I don't have to worry about that because . . . if the Union gets in, the Company would go pffffttt. Kostyak could not recall any such conversation, and denied that he made the statement attributed to him by the three employees. I credit Smeal, Corrigon, and Kephart, all of ;whom are in- cuimbent employees. I do not believe that they would have manufactured this incident, while failing to place it at a time when it could have affected the validity of the election. At least as to this incident, Kostyak did not im- press me as having a clear capacity for recollection, and I regard the testimony of the employees as the more reli- able. 'he statement and jesture by Kostyak, though off- handed, and perhaps an argumentative reaction, nonethe- less conveyed that designation of the Union would result in the plant's demise, and thereby constituted a threat proscribed b Section 8(a)( ) of the Act. (2) By Dixie Witt Dixie Witt, during the organization campaign, was a foreman in the depanzing department on the first shift at the State College plant. The complaint alleges that Re- spondent violated Section 8(a)(l) through Witt's coercive interrogation of an employee and solicitation of griev- ances under unlawful conditions. Said allegation is based essentially on the testimony of employee Elizabeth Weller. According to Weller, around the first of September, at the closing of the shift, she was lea',ing the plant when confronted by Witt, who asked why Weller was for the Union this time, when she was against it during the prior campaign. Weller replied that she was for the Union because she objected to disparate treatment of employees, specifying that certain employ- ees could do certain things while others could not. Weller also mentioned her concern for wages and condi- tions. Witt allegedly told Weller that if the employees did inot come to her and report their problems, the Com- pany could not fix them because they would not know about them. Witt acknowledged that such a conversation took place, but denied asking Weller why she was for the Union this time when she was against it the last time. She admits that she approaciled Weller after learning of a complaint against an employee in the area in which Weller worked. She claims that she discussed the objec- tionable employee with Weller, and when Weller indicat- 428 CENIRf IN(ilNEERIN(i. INC ed that she thought that the prohlein created by that em- ployee had been overlooked. Witt observed that, as a su- pervisor, she could not resolve probhleis she as uin- aware of, adding that such employee complaints coutld not be reconciled by the girls going into the hathroom and complaining among themselves WVitt asserted that Weller was to advise Witt of these problems so that something could be done. I believed Weller's testimony that Witt questioned her as to her reasons for supporting the Union during the current campaign, but as for the balance of the conversa- tion, I regarded Witt's account as more complete, entire- ly probable and believable. Based thereon, I find these al- legations of the complaint are unsubstantiated. As for the alleged interrogation, prior to the incident in question, Weller admittedly wore a button conveying her proun- ion bent. Although inquiries as to the reasons for union support would provide a means of discerning employee sympathy, and hence constitute unlawful interrogation, that reasoning does not apply to render coercive such conduct when the employee addressed has demonstrated her position, the incident is isolated and the entire con- versation lacks any suggestion of harrasment.'> Accord- ingly, I find that Witt's inquiry did not constitute pro- scribed interrogation, and did not violate Section 8(a)(1). Also lacking in merit is the claim that Witt's remarks amounted to an unlawful solicitation of grievances. The existence of an organization campaign does not suspend the continuing interest of productive employees and management in the fair and equal distribution of work and the efficiency of the work force. Wilt's request con- strued in context was narrow, and simply involved an appeal that employees communicate with her, rather than carp among themselves, with respect to production problems, the solution of which is part of the regular day-to-day function of management and sufficiently dis- tinct from the general run of wages, hours, and condi- tions of employment to be beyond interdict of this Act. Accordingly. I find that Witt in the course of this con- versation, did not solict grievances in violation of Sec- tion 8(a)(l) of the Act. (3) By Robert Rehn Rehn, at times material, was manager of quality assur- ance at the State College plant. The complaint alleges that Respondent violated Section 8(a)(1) through his co- ercive interrogation of an employee concerning union ac- tivity. In support, the General Counsel called Susan Eminhizer, who apparently worked in quality control. She relates that in early October the quality control group was called to meet with Rehn, together with su- pervisor Gwen Law, in the cafeteria. Rehn told the group that he had worked on both sides of the fence. and respected the opinion of the employees. He asked, "What do you think the Union could do for you." Emin- hizer answered better wages, benefits, and working con- ditions.17 At this point, someone asked, "f the Union e See ideral Paper Board. Inc.. 2(6 NI.RH 681 (1973): cf 11 -luto- motive Electricai Producrs Diviion, 231 NI.R 878 (19771) '7 Eminhlzer firs te stified Ihat ,hie anrscred hetnlsu "there ua pause and nobod answered" 'ursuant t a leading question put ftrlh hV the General Counsel. , he testifled Ihat Rehn made ihis inlqiry .,hile didl come in. would she have to join." Rehn requested that Eminhier answer the question. She did so. Rchn did not specifically deny putting forth such a question, although the drift of his testimony is to the effect that he only inquired of employees concerning their uderstaniding of company policy and whether they had read and understood informlation published by the Compa liy. e claims that at the meeting in question, the point was made that though quality assurance had a good manager and a good superisor, and employees in that department were fortunate in that respect, either Eminhizer or Schoen pointed out their unhappiness with the way they were treated by supervisors and fremen in other departments. He observes further that either Eminhizer or Schoen or both indicated that it was too bad that they had to get outside representation to protect them from supervisors, even if it were "the mafia." In re- sponse to employees urging of the need for union repre- sentation, Rehn claims to have indicated that "oily you can decide . . . what the Union can do for you." On balance. I am inclined to believe that Rchn did ask the group as a whole what they thought the Union could do for them. Accordingly, it constituted coerci.e action, lacking in legitimate purpose, calculated to elicit infor- mation baring the union sentiments of those attending. Whether intended or not, it is the tendency of the con- duct to impede employees in the exercise of their Section 7 rights that is controlling. I find that Respondent there- by violated Section 8(a)(I) of the Act. (4) By Edward Elders During the organization campaign. Edward F 'lders wtas a supervisor on the first shift at the State College plant. The complaint charges Respondent with a variety of unfair labor practices based on conduct attributed to Elders, including coercive interrogation, threats of dis- charge, threats of strike action, and threats of more rigid discipline. if employees designated the Union as their representative. In this connection, employee Carol Schaeffer testified that in early October Elders approached her work sta- tion, questioning her as to why Schaeffer felt it necessary to wear a union pin. Schaeffer declined to discuss the matter during worktime, and indicated she would talk to him at breaktime. Elders replied "Oh, come on. you can talk to me," going to ask what Schaeffer thought was wrong with the Company that they needed a union. She expressed that the Company needed a lot of changes, lookig dircll tili i.mlhizer and Jerrs Schoen. hoth of i.hum ere uearing l uniln buttons t rteltl her lestlmn. in 11 respctit I centel d coiinfused it no trlilradictors and nli reference to this fact wals included ill her prelrial alidla ll I -[hc (iera](il itl,]i . rl. ll iii miscori'trucs the tlollilit S Of Rehil in thi rpect Acir,.lrig 1o i, anatlsI,, Rehil atrmhbuled irrat m.l alr.l i('oli'llng sti enicnts to }Enil i e throughi his assertlitl that l she lirlt applauded the alture of her suIpervLslio and heni expresed unhappi rless ilih sulpLr. isors A I ci.lnsruc the lesinllrl\, conrlserilng her taltus i a qlalil e-lrel cniploectt hii %%orks n other depariltmlents aid ninl dea;l \ut l Ili(r 'uiperisors. the mor- iiccurate iOllsructi ln Is Ihlt Reill charg'1d [inlhllu t.l s\s11h hatlng epressecd disaippolrltlnllCt iI[\I titl Sl pers isrs c ltotro llted titside of etr xt1 i1 dptiaiil l Se (,' l Ar/t , l rlll I rL. /,t, 211 NIRIt 9121, 122 (1'141, cnfd SIt 1 2 117 1 1I0I I( r 97h) 1)1 (CISIO()NS ()l: NAIIt)N,\I I.AOt)R RA Il.AI()NS t()ARI) safet1 wise. anld the wN ay things were rull. Elders asked for a specific example. Schaeffer replied generally andl then asked Elders where she stood anoig the girls iiI terms of production. Elders indicated that she w as il the middle, adding that "if the Union colni in, thil he'd have to fire hall of his girls heeause they didn't niLet production as it is." Schaeffer related Elders also said that "he knew that if' the Union come in that there wouldnl't be mluch abseiiteeisml as there is nosw anl that there would he more discipline." Schaeffer also claims that vwhen she asked Elders why conditions of work had not changed since the last election, Elders replied that this was "because their hands were tied up ill court" Schaeffer also claims that Elders argued that, i the event of a strike, those wiho signed union authorization cards would be obliged to support it, while those who did not would have no such obligation. Schaeffer was a member of the union organizing coin- mittee, and, prior to her first conversation with Elders, admits to hlaving worn a union button fr "quite a few weeks." Her relationship with Elders was "friendly." Here again, as I understand the precedcnt and recogniz- ing the fact that supervisors and employees will inevita- bly discuss the issues during a union campaign, the one- time inquiry as to why an employee supported it uioin does not violate Section 8(a)(I) when directed i the presenice of no others. and addressed solely to an indiid- ual, who had previously manifested union support. I shall dismiss the allegation that in the course of conversation Respondent engaged i interrogation proscribed by Sec- tion 8(a)(1) of the Act. 20 Also lacking inl merit is the allegation based on Schaeffer's testimony concerning Elders' remark as to the obligation of employee card signers to support strikes. At best. this constitutes argumentation, which, though perhaps entailing misrepresentation, hardly con- stitules a threat. I shall dismiss the 8(a)( I) allegation based on this reference. Elders denied that he ever told Schaeffcr that the Company would eliminiate low producers or that the Company had not changed wages and benefits because of the litigation. Concerning absenteeism and production rates, he admits to stating that, if the Union camie in, there would be negotiations, and that the Company might seek absentee minimums and production standards. First, I am not persuaded that statements to the effect that employees be subject to more rigid conditions of work in tie event of unionization are any less coercive because linked to the outcome of collective bargaining. Quite obviously, such a byproduct of negotiationls vwould not be in consequence of union demands, and the clear implication in Elders' statement is that in negotiations the Company would press for restrictions beyond those ex- isting in past practice. I find that such statements violat- ed Section 8(a)(l) of the Act. 2t also credit Schaeflfer 'U [llders dtlled uestiolnillng Schaeffcr als (to why s it w ir l 1a ulil buloil Iiowever. hcihel (questuoncd d as to whether he had ever r. rld ito the fac- thiat she wals wearinig irl IlF. pin, he responded "il i1, qllle p)Sl- hble I iaiual doin't r elilhel ' He adllilted Ito rcterring to ili lt]- phloce's pin "s a piec., of dirt ' hit claims that it wuas a "rulnnlrliF lk ] was il lirled 1 hc.e Schaetcr ad her Itestimlon> n tlis tresp cl 21 C( Iuludil i' Mtor (orp, 222 N RKB h5 (1'7t7h hrc) thre IIt .itl lit llistSetl tle 8(a}(l) legal IIs based in expressions i a , geltl-u iliu'd anld find thalt dets' statcemenits ctncerning discharge (of IItiprodictive wiirkcrs also iIh taed Section 8(a)( I) of the 15) By (iary B(lne BIOOec, t Iugh o) lnglcr clmplovd by the Responldent alt t1e time otf tile hicarilig. servcd, during the preelectioit calipaign, as a supervisol on the second shift at State College. It is alleged that Bo one, on twio occasions, en- gaged in conduct amounlting to coercive interrogation, aid also tilreatened a reduction of benefits all in the month of ()ctober, during thc critical preelection am- In this conlnectiotl, Clair Ziegler, all incumbent em- ployee at the State College plant and a member of the organiizng committee, testified that in early October 3Boone called hili from his work station to the cafeteria. otneic first asked how Ziegler %was coming along in his job, and then elt on to discuss the liUnion, opening with "What the hell do you want to bring in the union for it ill cause trouble . . . you knou what happened at Eric. That's why that Erie laid off their employ- c's and weit to Mexico " After Ziegler expressed his disagreement, Boone assertedly stated "why don't you lake that damin button off your shirt . . . [it] . . . ruins vyour ulniform." Ziegler replied that he wuas attached to it. Boone allegedly responded, "All the union waits is dues and do not care for anyone else . . they will make a damnn fool of [you] . . . as ihey did with Erie," and that if the Union got in "it would be very bad." Botne also said "If the union gets in we could lose cv- erythinlg and gain notthig " Ziegler testified to a second conversation with Boone in late October. OnI that occasion, Boone approached Ziegler. asking if the Union was going to win. Ziegler indicated "maybe," Boone tlien said that if the ULnion gets il it's going to he ten times harder than it is now .and someone is going to be paying. Ziegler was wearing his union button at the time of tiese conlfronltations with Boone. e had been a memnher i the in-plait organizing committee. Ziegler claimed that Boone was not his supervisor, and that his prior contacts with Boone were limited to casual exchanges of amenities. Bootie testified that Ziegler was one of 70 employees he called individually into the cafeteria for the purpose of discussing the Union. He claims that during their meeting he discussed nion flines and assessments and ex- plained to Ziegler how negotiations worked. He denied, though not necessarily in precise terms used hy Ziegler. that hc asked Ziegler why he brought the Union in or s -utl IiiC rpols o [lpartisli iinl propaganda. i s hich the e- pllcer incllel, illtrriltc(l tle eltplioyees as to the pssihbl resllts of la futl, good-faith cll ctlcss bargalning lr ha cas, is disting uis able, foir, the b- ]I lt- ie-,iiiniHi tir br co lit ys thlat ilIClIS look lthe tiffctinsie iiply- i111 s tl t 1(tiltip;Il i tll scek III Ilegoill:itiiI Ns s' ihour regard for ira.d e isits l ii g t ascros ittipaci t)11 tn I pllt t s throlir gl Responid i-its Ulllialtilo of til t bhirgaliling proIc s,, ;ia a ileaClls (I1 Ieprisal I e Niss it i alle'ga;ltl ptcitatilnlig ,i tI.lders' xplaniatit, th t n ti hetilils hadi lol hii b ll graTitted hecaus ihe oinpaln ' "hads *s crc tied i-i-1 th' ri.lsits, set tlorh helit ill the iase o l M ticlhael Crozier , I \,ould [ itt ind t ihi r, rei c tlll"AtLUl el 1i l- allegedt 43() (IN Ri I N(,tINI RIN(;. IN( that he asked Ziegler why le i (\0uld loif n1lo . I hC union button lic also dcnied tlling Zicglcr i ponh- ably lose whait vetl hiie if te ullioll cts ill Mid \e would 'ind Iup getting 'nothillg." 11e clins I hve c plained negotiations hb slating "Ithat e rrlhing the\ ap- parently hald i1as ntegotiable rlth it ; Is possible that th\ could end up itih mnore r tlh( could end up with less that everything was negoliahlei l also denied telliing Ziegler that if the lnion gets in "it ill he tell inlles worse here than it is no\ " I credit tile testimony of inculnbI nlt emplose ieglr. who impressed ie as hotlst ndl r not prile Io fahrical Boone testified that lie i;llde ro liotes of \t hat hie s;id! it Ziegler r the 70() elploes thlit li( hadl seipralt ci1 t\cl- sations with concerninig the lionill Ihough he claini,, that he was instructed h Kolhe m:lld Nt. (irea to coiinLet these meetings,22 lie dli rot spea-;k froml a prepared text Thus, it is only natura tl Boone c ould have extClllpo- rized in these conlvrsaition, particularlv sin c rn plo ces were afforded input. Considering the thin line hel ccn what ay he lawfultl said and that iwhich is cocliil\C and beyond the protection o Section 8(c) of lth Act. and as oontc wvas i vie\ed s unlltillirrthv, I had T gralC doubt that he stuck clocl, to the ilarr1 o langulg cin- veyed to him bhr his superiors in this area I eliecd Ziegler ver 13oone. While, I do riot regard the rhetorical "inquiries" ad- dressed by loonic to Ziegler as constituting interr,)ga- tion, since obhviously niot intened to ev oke a rcspotse or to suggest that management was interestel in detectingi his union sentiment, a \iolallion ill tis regard would not fall within cogent allegations of the conlplaint. -1h 8(a)(I) allegation based otl interrogation shall be dis- missed. I do find. however. that ioorne attributed the plight of employees at Erie Tech to, their union acti\ itl., and by asking vhy- Respondentl' crmlllo ecs should lct the Union "make damn fools" of them, iniplicd that Re- spondent's employees would share like ad\ersity if the! designated a union. This statement together with the im- plication that the eIplioyees "could lose everything and get nothing," in combination, constitutes a threat of loss of work and detrimental working conditions beyond the protective pale of Section 8(c), and violated 8(a)(1 ). ;2 lo ne' es cipcrlpilil l the i rlstritintis hic rtcclied lrolni higher inatiagcrtlrit ii sIllwVha t odds its i llh ibsc described hs tlIrs Idilrs, u" l io soughlt Ii cc i (1 it' , il\ctlrlltills icii ;lllt h1ii, ll palirtl. (11 the basis () such instrl lions. lestliCl that he w ias tol t1nt ioi inllliate d isCMll t VI h members of he rgill.aillll orlnlllleCtli lii(ier if he recipe(nt (t inilllar instructlons. iolaled ther 2' See llanovetr lous Idutirilw. 233 NI R tI-14 1177,) 1lhe cnmpilinl includes a similar aliegaltion based in a ills trsallionl hsccn -itinlc tilel Mrs (iloria /iler in which afler I leading quesllon bh cnlrlsel fr the General Clunscl. she relaled that lione said hai if Ihe tIlon i.llnl c In "we culi prohahl l cs-r thilig ithat viece Ilr;eadyl got se · oult be like starlng t the tegiliring t)Dris Ziegler iprcsscd In a havillg a crilical lack of roll-,i- i a.s , a ll hal. s si id ln iai nier ing. ad thlghl le ninrdis she impulis to I'ioorle x tc l Iol diilet.i ullilk her hushand. I hadl doubts s i htier rha.hihi I-.r tln leasin. :l id ., Ih allegation based it) Ilt r teslinll Is M illcI hiIat ittlllllillt c .11 i Ill ill( i tlo gise Respirle(ti btle fit if 1ti, d,lhl ith respect i 11i iritical -issl' of credihilit. ii,( hetice ,ItilIdic thll IiO siiiiltlia l o 1 l it gelit ( I - curred froi t1hIls piartil l . t itrrl.l, I (f) 3By Nli, ial (Crozier l)tiuriig the OrganiatiOn ctilpaigl, Crozier \\as ai fore- nail il the sec rod hift ;it the Sttle Cllge plillt. It Is AlIitC ll thtl RespOiind1eill \ltlalcdl Sction X(ia)(l I llrough ctiUlCie iilerIitat irl, (i.1 prolie O1f bieltt. aind a threcal ot' ItclCtCd (itltits. all f \ i\hih \crlc allttribulted t Cro-- /1 . \\ tli respe t(I irttriogialill. cItilplOce \VC'rld I)eckeCr tIsitited t a cl \rltilli wll Croier i11 arl' Scpllleci ()iill pre\ ios occasions, Crozier lad coll- pllill.d ilhout ilic (Jltiit l atn iianier ii lch [)Decker had pcrfioled er Sol k ()ni the nslanit ticcitsoll. (Cro- /icI rCprliil lel )c l)ckcr I'or hat ing a ad a Iltillde aind h1ld hlcill tlt hi-1 v uld no longer perforim set up , rork CIrtier also ijL'ctd the ll ntiot into Ils Ct (l C;batiot teI}it I )'cke'r thI11 ste shoulid e st lraillIfor 11ad abou t flic Itrliol aid rillt prlcLnd thait SIe \sas aganl it t \he sie X; is for it Il the coulrse o(f this ct li lverstiol l)cIcker caimis thiet (Io/i l tld her thal i' She( did riot traLighten Lip s li , iild he (i ll tIhe lor, r Cro ier specificall. rdenited lakrig the sta terierlt attrihuted to hin hs Deck r conicernlig the Uiiotl lie testified lthat ile 11e dis- usse 1 I thlle . til uOl , il pr)-obahl 35 i) 4 out Ot it tl lal of 5(), alld lile [1. t "su;ll" talked itli ,'cl'd [)eckei ever 1iglt, e filrthler denlied hal;l iig a cot(.lsi rtion with her concerning the Union I did rino belies . hin and find that hce did address the remark to lDecker con- cernlig her union affiliation I find tlhat the accusation embodied in his remark was calculated to e\ok ie a re- sponse fro t whichl union sympathies might be discernctl and since coldtc(ted ithout legitlimate purpose, I find that Respilndnt Ihereh\ iolated S t S o ) I) of the Act With respect t tho e alleged promise of benefits. em- ployee Carol Rogers, who had been employed by the Respondenlt for about ) monthl, at the time. testified thatt iih earlty )Octoer she asked Crozier hvi ether employees sould be gi en a day off on thie riday after I hanksgiv - ing She ilicauted thatil. if that were nrot tfie case, she wItould tl ake it tiff. Crozier allegedly responded that ie would have to wait. but that if the Union \won, it \as probably more than likely" that the day off would ot he granted. Crozier admitted to being pposed to the Union ad to expressing such opposition in conversations wili many employees. He denied having any conversa- tion ith Carol Rogers in which a day off was linked to a defeat f the Union. Respondent challenges Rogers' credibility on the basis of testimnion by President McCrea that, for ithe preccd ing 5 ears, it ,k is the Company's practice to shut dow n for 5 days over Thanksgiving, including; the day affter I han;ksgi ing. Rgers acknowledged that t e Cortnilltl, poste a notice to this effect, but claims that she ;as "absolutely certain" that this did not occur until the Monidav aftcr the election, which would have placed the * t 11 lt ts1mlli lls t(l vI tii[hel [ tll dl. sharii c ilire. t I;is lirklllki sitI clli i- ti its r t 'ilrliIei Ii lhe pres.iilis Inrladteqluallt rk pcrforlllntii c- iit k1 hlt (it I ltl i Ii lalitii sl111iids il it t .' imhigtis Ihe (eieerl ('<Liitlit' d.('s 11l1 T iil th11 l this sh l t1tl1i1tnl impeded etlpl istt ig.orgiliill uli: l rlthls. lll ;is tI ilr ,rlr le it Itstl llls. II ts I1 )ii tl Ii hiisi bL."l 11i rr ,l/k Ii, : I t. k) , -r' - i Iel tt )) pcrf[rnr lll ( 43 I I)t!(ISI()NS ()1F NA'I ()NAI. IAIBO()R RlETA'l()IONS ()ARI) posting on Novernber 20. he notice, which is in ci- dence as Respondent's Exhibit 18, bears tile date of No- vember . Although I am inclined to believe that it was posted at that time, and that Rogers was in error il lesti- fying that it was posted so close to the hanksgiving holiday, this slip-up related to a matler somewhat collat- eral to her account of the conversation with Crozier, andl does not impel me to( reject that portion of her testimony which I believed. Notwithstanding this slip-up, she was an honest witness who impressed me as capable of recall- ing salient aspects of lier personal exposure to managc- ment's efforts to persuade employees against organiza- tional activity. I do not believe that she was either mis- taken, confused, exaggerating, or manufacturing the ac- count of her conxersation with Crozier which is an issue here."' I find that Crozier's intimation to Rogers that employment benefits might hinge on the outcome of the election, constituted a implied promise of benefit calcu- lated to induce her to refrain from supportinlg the Union, and that Respondent thereby violated Section 8(a)( ) of the Act. Rogers testified to a second conversation later in Octo- ber, in which she asked Crozier if she could take boxes to mail her Christmas presents. She offered to pay for them. Crozier indicated the boxes were free, "bi that if the Union came in she probably couldn't have them." Crozier admitted that Rogers made the request for boxes. hut claims that the matter ended when he simply ob- tained them for her. Here again, I prefer the testimony of Rogers. Accordingly, by raising the possibility that favors would be denied in the event of unionization, Re- spondent, through Crozier, violated Section 8(a)( 1) of the Act. Rogers testified to a further coniversation with Crozier in late October in which she asked him why the Compa- ny did not give better benefits. According to Rogers, Crozier explained that the Company had a "raise planned out for everybody but they couldn't give it because their hands were tied." Crozier, according to Rogers, denied knowledge as to the amount of the raise. It does not appear that the Union was mentioned in the conversation. Crozier denied having any such conversa- tion. I credit Rogers. Nonetheless, I do not find that, in context, this statement violated Section 8(a)(1). Crozier's response to an employee's inquiry concerning the ab- sence of benefits was seemingly temperate in tone and did not involve a gratuitous effort on the part of Re- spondent to place the onus on the Union for impaired benefits. Under Board law as it applies to these presents, Re- spondent could not lawfully confer benefits, except where justified by past practice, over a prolonged 25 I alsot reject Respondeit i, alternate conltcr ioli that, if Rgers is he lieved. no iolallon would result since the posting prior to the election twould neutralize the effects of any miscoinducl t on the part of Croicr I have found that other supervisors engaged in conduct which. like tha ol Crozier, held ut the implication that Respondent Sould take acti unl favorable to emrnploees if they were t designate the Union( Although the Thanksgiving posting wsould hae dispelled any notion ,II the par of employees that such a benefit was conditioned upon the mtcome of ithi election. said action on the part of the Respiondenl did not effectivly re- lieve employees, including Rogers, of the message that heN wouldi stland Io) lose depending (c Ithe ulcome of that elecion period. Thus, duriiig the initial organization campaign, the petition, which opened the critical preelectlon period had been filed some weeks prior to the first election held on April 29, 1977 The injunction upon Respondent by operation of the Act against increases under that petition continlued until August 14, 1978, when permissioni was granted on the Union's request to withdraw its objec- lions to that election. The Union's action in this regard, coming as it did after the close of hearing on said objec- ions, could fairly be construed as unforeseeable. Its deci- sion to proceed in that fashion Wlas followed b the filing of the instant petitioni on September 18, 1978, action which again froze the Emiployer's opportunity to confer new benefits. Those increases determined, but not an- iouLnced, if not conferred during that period, could not be granted thereafter wilhout seriously imperiling the in- pending election. Respondent "could lawfully withhold alny action on a wage illcrease diring the union cam- paign based on its desire to ax oid the appearance of in- terclerence and the commission of an Act which vwould be considered an unfiir labor practice." 2 ' In fairness, though the Respondent could have acted during the hiatus, its failure to dlevise and grant benefits within an indeterminate and limited time frame did not preclude accurate and temperate responses to employee inquiries as to why new benefit levels had not been raised I find that in all the circumstances, Respondent did not violate the Act through Crozier's statement in this regard. Uarco, Incorporated, Ih6 NI.RB 1153, 1154 (1968). (7) By Ted Kolbe Kolbe is Respondent's vice president i charge of man- ufacturing and has responsibility for operations at both the Osceola Mills and State College facilities. The com- plaint alleges that Respondent violated Section 8(a)(1) of the Act by Kolbe's threat to prosecute certain prounion employees. In this connection it appears that employees Margaret Kephart and Nancy Seal in early October drafted arid signed a document which they distributed to employees seeking their support for the union cause. To make the point, Smeal and Kephart in that document, listed spe- cifically the names of four of Respondent's customers, pointing out that all were union companies. See General Counsel's Exhibit 6. The General Counsel adduced testimony from employ- ees Donna Faye Corrigan and Margaret Kephart in sup- 26 See reatr 4tluanti & Pacific leu (oirnpoany. Inr. 192 NLR3 645 17971) While it is rue thal, swith respect increases. durinrg the pend- elcy of a petioi anll enplo lr is obligated itl act as lie would hate acted had no petitin heen filed, it is also true that where the Ircrises were l,r previolusl) anntoulnced. nor pursuant ii e lablished piic and prac- tice. iI is the eniplo)r's hbur-den factually ti disassociate Ilcreased bettefit levels frinom a attempt to influence he canipaigi. including an cxplana tion as toi why the icrease were no, deferred until ater the election Sece, g . Iot' Ially lruck Service., In', 153 NtRB 727, 737 (1965). A falure I, mecl such a burden ill result i a iolation. ad deferral is alsass he better practice 'ror these reasons, and as estilng benrlfi let el, are the fiocal point fi ir debate in a orlganizatlironal canmpaign, de fe'rlis: cexpresions h employers i: response to inquiries h)by employees sthlch ido not aribuic the lack of new henelits specifically t the Union ought lot furnish the predicate for emploi er entrapmetl as automatically found urltir labor practices 412 CNRI I N(GINtIRING, INC' port of this allegation. From their testimony, it appears that Corrigan, Kephart, Nancy Smeal. and Shirley Clark worked in the same general work area.27 Kolbe, a few days after circulation of the forementioned document. approached Clark who was responsible for maintaining a logbook of the items she worked on and asked her what her log was. Clark explained that she was required to make entries on every item worked on in that book. Kolbe stated "do you know this is privileged informa- tion?" Clark responded that she had been instructed to maintain the log. At this point, Kolbe. according to the testimony of Corrigan, turned, while pointing to Nancy Smeal and Kephart, stating "you two know what I mean, you're going to be prosecuted . . . I have already talked to my attorneys about that." Smeal looked up. stating "I'm sorry I didn't know." Kolbe then left. Kephart and Corrigan insisted that Kolbe threatened prosecution. Kolbe admits to the incident, but denied the testimony offered by the employees in this connection. According to his version, he approached Smeal at her working area and told her that the customers she had identified was confidential information. He claims that he told her that she should not have taken information from the plant, and that he would "refer the matter to our at- torney." Smeal when later called by the Respondent, confirmed that Kolbe had said that he would take the matter to legal counsel. I was inclined to believe Kolbe. Nonetheless. the Gen- eral Counsel contends that even under his version, a vio- lation of Section 8(a)(l) inured. I agree. Any distinction between a direct threat of prosecution and an expression that union literature and those responsible for it would be challenged by referral of the matter to counsel would leave standing the restraining effects of both. In either case, the implication plainly communicated is that data used in campaign literature might well render employees vulnerable to legal proceedings. By way of defense, Respondent makes no serious claim that the identity of the four customers constituted confidential information.: 2 " And from the leaflet's disclo- sure of four of the more prominent domestic producers of electrical products, no inherent aura of a breach of confidence emerges. Communication is fundamental to employee exercise of their Section 7 rights, and any re- straint on their use of facts to put forth their arguments if not in violation of fundamental responsibilities to their employer is protected. Statements to the effect that legal proceedings would be explored as a possible reprisal against employees who seek to advance legitimate argu- mentation to their fellow coworkers, violates Section 8(a)(1)" as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act.2" (8) Promulgating a rule restricting employees from leaving company property during coffeebreaks Employees at the Osceola Mills plant are accorded two 15-minute breaks and a half hour lunch period daily. ' Shirley Clark is responsible for maintaining a logbooik hich indi- catcs the number of the parlicular irms produced on the line. the ramie' of the customer. the quartt) of her ouitput. and the quantits .sld z2 See Engyland Steel (tnpaun 238 NlRti 1204 (1g)7S) '2 See ( Jde ll'/ ('o. 12'7 NI R 103, IIH 19)) There is no dispute that employees are free to leave comnpany property during their lunchbreak provided they punch out. The General Counsel's claim here is that Respondent imposed during the organization campaign, a new restriction precluding employees from leaving com- pany property during their 15-minute coffeebreaks. It is argued that this constituted a change in work rules. moti- vated by and having the effect of impeding employees in the exercise of their rights protected by Section 7 of the Act. The only primary evidence of promulgation of said re- striction was offered by employees Elouis McCullough and Nancy Smeal. McCullough, a first-shift employee. testified that in September Ken Bean approached em- ployees while apparently on break, stating that employ- ees "were not to take a walk through the graveyard any- more.""' According to McCullough, when an employee asked Bean the reason, he responded "if they would fall or have an accident, the insurance wouldn't cover [them] . . and . . . if... [employees]... wanted to walk to do it in the parking lot or on the property." Smeal, a second-shift employee. testified that Supervisor Kostyak told employees that they were not "allowed to walk over and around the cemetery anymore ... we weren't allow,.ed beyond the hedge and we had to punch in ad out at supper time if we went anyw here. " :'' In contending that these instructions were unlawful, the General Counsel points to the fact that both pro- nouncements were timed most suspiciously. Thus, it ap- pears that on September 12, Union Representatives Shea and Rothweiler, after meeting with second shift employ- ees, drove to the plant. While there, they were engaged in a conversation with employees who were on their 15- minute break, on the road which ran alongside the hedges bordering company property. It was either that day or the next when Kostyak and Bean made the state- ments imputed to them by McCullough and Smeal.:' The existence of an initial organization campaign does not restrict the employer from the regular routine exer- cise of the supervisory function. As has been stated by the Board, "Where a relationship between employees and an employer is not governed by a labor agreement. the employer has a perfect right to unilaterally promul- gate such working rules and regulations as is deemed necessary for an efficient and economically sound busi- ness operation."3a The restriction involved here was not in terms specifically aimed at union activity, and the fact i" A cemteter, is adjacent Itl one side f he plant I) t t as ilN Impressilil that Snltl' testim e oll) cll n rllling tIh rentatk hb Kostiyak at least, in part, Included her lridersl. ldilng and elah oralilon on KostAks actuil words hile I hbeJieted her tesmoiln, hit ct1plt ?- ecs tere told that the,: ere int to walk in the cemtelcr, I rejc the implication that h specifically limited their mo emeiti to area* wi thin the hedge which divides a roadwas and the fronl of plan propert :l tlhe link bet eUll the restrlcOlliln aInd uioll alil s. as enhanced potentially h testinlonS of Donnila (Corrigan. h.ho related that hen she questitlled K 1 sak as to h ermplo,ees ere nolt pCrlllitted it lca\e collplln propert during break,. he responded "You call bhiame he das shift ftr Ihati IJ i not hbeholi v Coitrigan tier pre-lrial affida:it makes no) ientill of i u,,c i ,l l teratdtio illd though her testinon t as ot it( specifica ll ontradicted h K stSak I asJ lot inmpressed hby her denlea- Inir, a;ld cilll ideredl un ll e tieh hr t stinlt o, t) the exlciet unlcrrhborat- 'd hb other redible slilrces " : Po ar r t j, h d' . Pl. 220) N R I e, li sT 1 171 4133 I) tF'ISIt)NS ()1:F NAI I()NAI. I.AB()R Rl A I I()NS O()AR[) that employees arc confined to plant premises during breaks of 15-minute duration would impose no inherent impedimenlt to the exercise of Section 7 rights. The burden was on the General Counsel to establish by spe- cific evidence, that this restriction was aimed at curtail- ing activity protected by the Act. This was not accom- plished on the instant record. Certain objective factors. which are beyond dispute herein, preclude the inference that the statements by 13Bean and Kostyak, although made after the appearance of the untion representative, hela any connection with the latter. Thus, employees who partici- pated in the conversation with Shea and Rothweiler denied that any supervisor approached them concerning any such rule. urthermnore, the restriction itself: consid- ering physical layout of the plant, would not impede em- ployees from conducting such conversations with union representatives in the future. No perceptible basis has been demonstrated on this record for concludinig that employees would be impeded in exercising their Section 7 rights by confinement to company property durinig these 1 5-minute break periods, and I am not convinced that any connection existed between the appearance of the union representatives,, 4 and the expression of this re- striction. Accordingly, I shall dismiss the 8X(a)(1) allega- tion based thereon. (9) Campaign propaganda The complaint alleges that Respondent violated Sec- tion 8X(a)( ) through campaign propaganda which blamed the Union for withholding of benefits and which, in its totality, conveyed that selection of the Union would be futile, and would lead to strikes and the loss of jobs. Thus, in the course of the campaign, antiunion argu- mentation was communlicated to employees through posted literature, mailings, and distributions. In addition, on November 7, 8, and 15, Respondent's president, Gerald McCrca, addressed employees during captive speeches. In the latter respect, McCrea delivered two speeches to each of the three shifts at the two plants con- stituting the bargaining unit. The first speeches ere de- livered on November 7 and 8, and the second series took place on November 15, 1978. Respondent's written campaign propaganda is evi- dence by some 30 documents which were made a part of this record by the General Counsel. Unlike the forego- ing, questions of fact exist with respect to the precise statements made by McCrea during the captive speeches. McCrea did not speak from a prepared text, but as aided by index cards, which he prepared using the previ- ously distributed cempaign literature as his source. ie did not read the speeches "uword for word" from the cards. "[A]n employer's free speech right to communicate his views to his employees is firmly established ad cannot :4 IBean trstifited Ih e ( omlpany, for ai least 4-1/2 stairs, hlili a rule precludling employres from }lxziintig ompany property drig llirhlrlch hreaks tie lestiied that he hadt discussed that rle wilh mpilrtl,\ "qilt a A lineilc' ()ther Ihail that, triere is 1ino eidence that siictt a.lr p i1 had been expressed firlfially in wrllllig Severall Iemploe C sill.trC's fir the (ieneral ('unse Iteslified hllal the. were ilnai .are, priolr to tlhe Scptcrl-rI incidenl. f a y stlcth res, fitliei n 'I is esijniri' I it net sar}I t it) l ll flicl. .irid I as iLl.hrtet h, blle live h l. .illtoligth I d(i iort kirk his lcSll fnolliy, i ce,,ss r t h rItl he infringed by a union or the Bohard. Thus, Section 8(c) merely implements the First Amendment by requiring that the expression of any views, argument, or opinion shall not be 'evidence of an unfair labor practice,' so long as such expression contains no threat of reprisal or force or promise of benefit in violation of Section X(a)(1) " '5 Although, as indicated, the focal point for an cxamniliation of canipaign utterances are the words actu- ally conveyed, this does nott mean that the analysis should not reach the natural or intended implications of the words used. :"f As was stated in Gic.scl, upra, 617 1: any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. If there is any implication that an employer may or may not take action solelyc on his own initiative fir reasons unrelated to ecolomic necessities and known only to him, the statement is no longer a reasoiable prediction based on available facts but a threat of' retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment .. . As stated elsewhere, an employer is free only to tell "what he reasonahly believes would he the likely economic consequences of unioni/ationl that are outside his conitrol." 'I'he challenge to the overall campaign, as I understand the position of the General Counsel and the Charging P'arty, focuses upon expressions pertaining to the futility of collective bargaining which together with the stress placed on the possibility of a strike, combine to reflect a coercive theme, ideCtifyil ig unionization ith loss of jobs. Somewhat independent is the assertion that McCrea in his spechles violated Section 8X(a)(l) by imputing a w ithholding of ne, benefits to the Ulnion ()n the instani record, the G(eneral Counsel and Charg- ing Piarty are constrained to rely on McCrea's own ver- sion of what he said, supplemented by what appears on the note cards he utilized during his speeches. Although a number of employee witnesses were called to testify as to their recollection of McCrea's remarks, not one from ;' /. R B (; tGut Packing (oi. lir., lt5 t S 575, 617 11t67) I hLe iclhling of th Spreilne ('otir des ilOt iltCat that rights guar- aitltedlt tl i'ilplorir s il W;ig- alitlaiu on nrlilpigrl at t h tsstelnid h> Ihe liicllcer' inagiiatrlllrli r iterpretalioln T1.c iords acluall. usr d iart t f irCal lillt frr ,IAltitilig tilr tetrsiiOll al xits betsten Scc N(L) 11id thIl r p1ript lrl plri'olllt o Ithe A it i, ir Sithll that fratilr itk thiat thl ilioad cexrcise, its dut, l detcrilrnlllc shelihr Ihe speaker', \t-is ilrnpl ir I ltl he d interpreted is oll\cing a Ilireat ioitACecr. sill ItC pl ,iibilil, 5 i AlI( he I a di it ttl *re lclftI, it arcc, rded ti) t -nl )lioic Istiitll lI(III i 1I tl t elit IllL'llRcitllll l)t :orgtlrell rlil rril I[ii 'ld. tich dilelrciC e o)Uill Ce1r i1rr-r LI pvrarlriiLgi of tIri illtlerpretatl e procerss, hs-ich I oit il inarrl, the stop p e of Sc Xi(l and tltrebs rusliat' Corl- grcsx i 4ma ini'ill lI, b a fiIIegird 1 t ,' ,pc ,' ] a s ITlilf'teld * a I o v. 1 O"- Irli, 'i r I "'i' I Lipil li ig I. trdl illIlllJFITa[II (Il '11 t I JIesti l 11 g mi pll it' s IT l ttll lt t rllltl 1 434 CENIRE I:N(lNEERINGi, INC' among this group impressed me as capable of affording reliable testimony as to the words actually spoken. None seemed possessed of a capacity for clear recollection and the ability to afford objective testimnony, free of impres- sion and stripped of personal viewpoint and argumenta- tion. I discredit them all as unable to afford sufficientl1y precise testimony in this respect. It is noted, however, that employee testimony and that which is admitted b) the Respondent is in many instances lacking in substan- tive difference. Loss of Jobs The literature distributed to employees by Respondent and McCrea in his captive speeches drew significantly on job adversities which have beset employees as a result of the IUE's history of bargaining with other employers. The point was dramatized by several references to the experience of employees at Erie Technological, a com- petitor of the Respondent with locations at Erie and State College, Pennsylvania. Thus, prior to the filing of the petition, on September 15, Respondent distributed a notice to employees in which it described the IUE as has ing "terrible records for representing employees." The employees were told on that occasion that it was the opinion of the Company that involvement with the UE "would be a terrible mis- take." The document went on to state: At Erie Technological Products in Erie, Pennsylva- nia, the IUE represented over 1200 employees. During the years of IUE representation, the compa- ny started opening plants in other areas including locations outside the country. The employees in these areas were not represented by the IUE. As the company opened these plants the number of em- ployees in Erie kept getting smaller and smaller until the beginning of this year when only a few hundred were left. No one knows for sure why the company took the action it did. This year, the IUE called a strike at the company. The price of the strike was high for the workers. When it was over only 30 to 45 union members returned to work, the rest had been permanently laid off. A total of over 1100 workers have lost jobs at Erie. Does this sound like a record to be proud of? 'Whal did the IUE do for these members? * * * Membership in the International IUE Union has gone down over the past year because of the large number of electrical companies that have been forced to close. One reason for closing could have been that the)' could not compete price wise with the foreign competition, because they were bur- dened with union contracts and lost their flexibility. We believe the IUE is only interested in you be- cause of the money you represent to them. Money in terms dues, fees, and assessments that IUE meni- bers are forced to pay. The IUE is just like any other business once one operation fails (like the one in Erie) they look for a place to open another one (State College) so that they can continue to sell their products (unionism) and charge members a fee for it. \Would you invest your money in a business that had a record like this? We believe Centre Engi- neer employees are too smart to invest their monec in a union that has a record of failures like the IUE. We at Centre hav.e a record to be proud of. In the short time we have been in business we have grown into a major factor in the electronics industry. Our growth is attributable to our reputation for the products we make and our ability to compete with our competitors. Our customers also know that when they place an order with us they don't has c to worry about union called strikes interfering with delivery dates. But each year it gets more and more difficult as more companies are opening plants in foreign countries and foreign corporations are conm- peting for our market. Our future growth is depend- ent upon 1(X) percent effort by all of us. As we htse said before as we continue to gross C will continue to improxe wages and benefits. Union or no union, we intend to remain here in Central P'cnnsSliania. We take pride that our product is made totally in this country. :' Frlc lchnologal ii.. A c. l plo)ct, (sic] cr 7(X pop' Irr NogaCs, Mlcmt,- tlt aIrc rlwl rprstIlIcd h a Uol(l :7" The (ieneral Counsel and the Charging Party urge that this theme, equating unionization with strikes and the loss of jobs, as extended on October 2, 1978, by a notice distributed to employees which listed things that a union could do and hat it could not do. In specifying 'rlhat a union could not do. this document states as fiol- low s: TIhey cannot furnish you with work or pay you a salary. (Just look hait happened to Erie Tech em- ployees in Erie, Pa) On November 9. Respondent again reported to em- ployees concerning the outcome of an IUE strike. Under duress arid after a 4-week strike, Erie Tech of Erie, Pennsylvania, settled their latest union contract by granting a wage increase to IUE employees. Apparently. hosvever, the Union was more concerned about money than their members' jobs because: The contract was settled in April of this year. Since April, three of every four IUE employees have lost their jobs because the work they were doing no longer exists in Erie, Pennsylvania. It's worse than that, because its not over with. It is estimated that the IUE will represent less than 40 employees at Erie Tech in Erie by next March. This wsill mean 9 of every 10 IUE emnployees will have lost their jobs. * * * * * I:: bSc (i t xh 4(c) 4)5 DECISIONS OF NATINAL LABOR REILATIONS B()ARI) Could any of this really happen'? Is it possible for a company like Erie Tech to lay off all these work- ers'? Unfortunately the answer to both of these ques- tions is yes. We are not saying that any of this would happen here. But it is important that you un- derstand the facts before you vote. Respondent again alluded generally to the experience at Erie Tech, describing the Union's role there as one of "domination" in a letter distributed on November 14. In material part, it stated as follows: Now we look back again. We currently employ about 500 persons. Some are primary bread winners for their family, some are secondary partners in helping to set the table, and some are temporarily employed for one or more of many good reasons. All in all we are probably responsible for over 1000) persons in some manner or degree. We have accept- ed that reponsibility, and it serves as a constant re- minder in every decision regarding Centre Engi- neering. It has been said many times that we oppose this Union. Much of what we have said has been grossly distorted. We oppose this Union because we do not think this Union's interest is in the best interest of our employees, and we (each of us) have worked for a company (Erie Tech) which was dominated by this Union and have seen firsthand the negative results of this Union's domination. as Finally, on November 16, Respondent in a handbill, iter- ated its reasons for opposing the Union in the following terms: We know the history of this Union and feel it is our responsibility to give you all the facts. We do not think this Union is necessary or beneficial to either you or your management. Sometimes, union de- mands, if fulfilled, result in a company being non- competitive. In many IUE plants, this resulted in cost-cutting and your jobs. Often, companies say "no" to unreasonable demands. Where this is hap- pening, a large number of IUE plants have gone on strike, hurting both the employees and the compa- ny. We would not like to see our operations disrupt- ed. You can avoid this possibility by voting "No." In addition to the campaign literature, McCrea in the course of the captive-audience speeches, admittedly told the employees that Respondent was the sole ceramic compacitator manufacturing company still located entire- ly in the United States. He observed that Erie Tech had several hundred jobs in Mexico displacing those held by employees in Erie and State College.3 9 He also alluded to two other domestic manufacturers of electric compo- nents which had established plants abroad. He expressed his intention that Centre continue to function entirely in the United States, that that was the way it should be, and that he would do his best to see that it stayed that way. McCrea read from a newspaper article concerning : See GC Exh 4(y) :1 McCrea had been employed hy Erie Tech for a period of years employment circumstances at Erie Tech, depicting a de- cline in the Erie Tech work force of from 1,200 to 40. During the second speech, he advised the employees that Erie Tech was selling, through an auction, certain of its machinery. He pointed out that Respondent had itself purchased some of that machinery which would be ar- riving shortly. Before closing this second speech, he re- minded the employees that no matter what the outcome of the election, the plant would remain open, that life would go on, win, lose, or draw, and that he would live with the results. Under Board precedent, the issue raised by the forego- ing is not free from doubt. On balance, however, it is my conclusion that the contentions of the General Counsel and Charging Party, if sustained on this record, would invite absolute censorship of what appears to be honestly conveyed and relevant fact. Thus, so long as employers are privileged under law to propagandize against union representation, assaults upon a particular labor organiza- tion's record for employee representation will naturally stand at the vanguard. True, such propaganda involves a calculated play on employee fears, but with economics constituting the central core of the debate, it is difficult to imagine a line of antiunion argumentation which could not be so characterized. Realities demonstrate that to en- lighten and frighten is the central objective and to re- press, through unfair labor practice findings, comment so designed is to condone outright rejection of Section 8(c) without regard for fundamental statutory and constitu- tional principles. "Thus, an employer is free to communi- cate to his employees any of his general views about un- ionism or his specific views about a particular union, so long as the communications do not contain a threat of reprisal or force or promise of benefit."4 0 Absent the latter, it is of no moment that references to a union's fail- ures in the past might be persuasive and difficult to combat; for, "an employer's free speech right to commu- nicate his views to his employees is firmly established and cannot be infringed by a union or the Board." 4 Consistent with the foregoing, the Board has acknowl- edged "the employer's right to discuss freely and frankly its views concerning unions, strikes, collective bargain- ing, plant closure, and any other topics it considers im- portant," But at the same time, this right must be bal- anced as against that of employees "to associate freely and express their desires in an atmosphere free from fear and futility" 42 However, the balance must be struck in terms of whether the entirety of the campaign material conveyed to the employees either directly, by injection of ambiguity, or by implication that Respondent held an inclination or propensity to bring about the very adverse consequences referred to. Such was the nature of the campaign dogma in W. A. Krueger, Shaw Industries, Divi- sion of Crystal Springs Shirt Corp.;43 Hanover House In- ' 395 L US 575, 619 41 Id. at 617 12 See 4. hrueger Co., 224 NLRB 1066, 1069 1976). in 2IX NLRB 1196 (1975) here the presidenlt of a multiplant shirt Illaluacturinlg enterprise using unqualified terminology. told emploqyees Ihat unorganized shirt manufacturers always nloved It a nIe r location or transferred sork Il a nonunilon plant hen rganized, and concluded by (onrinued 436 CENTRI EN(IN'tRIN(; , INC( dustries;4 4 and Mohawk Bedding C(o. 4 ' However, in the instant case, the references to the adverse impact or union representation elsewhere was unaccompanied by language suggesting or implying that such job disloca- tions would occur at Respondent's plants. The dogma while not disclosing a propensity to effect such reprisals and without casting the argument in terms of the inevita- ble, carried assurances that no such result was intended at Osceola Springs or State College. Being of the view that McCrea neither in his speeches nor his campaign literature conveyed an implied threat that Respondent would close dosen or reduce work at its locations because of union representation, I Find that this phase of the Employer's propaganda constituted legiti- mate argumentation protected by Section 8(c) and nei- ther violated Section 8(a)(1) nor furnished grounds for setting aside the election. The References to Collective Bargaining and Strikes With respect to this phase of the debate, I find that Respondent's campaign material exceeded permissible bounds. In this instance. Respondent, after stressing dire economic consequences of strike action in terms of job dislocation through replacement, nonstriker liability for union fines, and loss of earnings, reduced those conse- quences to the inevitable by declaring an intention to sit at the bargaining table under circumstances likely to force stalemate. Thus, it was observed by Respondent that there was no guarantee that negotiations would lead to "any increase at all," and that "no union can force us to pay more than we want to." 4 6fi Several times the em- ployees were informed that "in negotiations . . . every- thing is negotiable and you could get more, you could stay the same, or you could get less." These were not the abstract words of the disinterested, but those of one who forcefully opposed unionization through this and the prior campaign, and who openly an- nounced his commitment to bargain "hard" should em- ployees designate the Union. McCrea's reference to the possibility of negotiations culminating in a reduction in current levels of benefits would naturally be contrasted with his earlier utterance that "our company will contin- ue to do the very best it can for all employees"47 This shift in posture was conveyed as union inspired and would, according to Respondent's own argument, be im- plemented through its adopting a resistive stance during any ensuing negotiations. In sum, Respondent's expressed disposition to bargain hard, to hold the line on benefits, and to engage in a slating, "When this election is oer. our non-union competitors are still going to be making shirts somewhere and so am I We catme here not to close a plant-but to open one " 4 233 NLRH 164 (1977) There the respondent's president told em- ployees that the parent firm had closed a facility because of union de mands, while going on to nform them that the company had a short lease and was free to move once it epired 45 216 NLRB 126. 128 (1975) There the employer listed five compa- nies that had closed or moved after being unionied. and then stilted "there is cotnsiderahle reason to onder whether or notl uinloll/altlln fli Mohawk Bedding would hurt our ability to urvive" n' See G C xh. 4(aa) 4* See Gi C txh i(a) course of negotiation that would inevitably lead to a strike, and all its adverse consequences, exceeded the protective ambit of Section 8(c), as amounting to no less than a definition of economriic hardship to be vlsied on employees in consequence of Respondenit's owfn discre- lionary action. I find that Respondent thereby violated Sectionl X(a)( ) of the Act. Attributing the Withholding of the Benefits During the Canlpaign to the Union The challentge made in this respect rested itt cssential respects on emlployee lestimony that has been dscredit- ed. Thus. relying on McCrea's credited lestimony, I find that, ith respect to new benefits, he sltated that the Company's hands were tied only in the coniext of re- spndirig to a document signed b Bets Wel'cler, a prounion employee. That document had been presenlted to the Company in quest of written guarantees that it would provide a suitable pension plan, better ages. fully paid insurance, paid birthdays, and all equitahle dis- tribution of profit sharing, " 4 McCrea clainms that. in the second speech, he read each of the guarantees to the em- ployees and stated "that the Union knows that it swould be illegal for me to sign these guarantees. it would be against the law and they had my hands tied." He then referred the employees to the guarantees prepared on behalf of the Company, which had been distributed to employees during the first set of captive sessions. He in- dicated that the Union could have signed those guaran- tees, but that the Union "knew that ... there is no way that I could sign these guarantees and they had my hands tied and they knew it." 4 In my opinion. this con- stituted a sober, temperate response to overt employee demands for benefits, which, if honored, would clearly violate the law. In the circumstances, McCrea was privi- leged to defend on the basis of what the law requires. As he went no further. and as I find that this was the sole reference made by him to this subject matter. I shall dis- miss the allegation of Section 8(a)(1) based thereon. IV. CASk. 6-RC-8307 Remaining for consideration are the Charging Party- Petitioner's assertions that the Employer engaged in mis- conduct during the critical preelection period. Of these, Objections 1, 3, 4, 5, 6, and 7 are coextensive with unfair labor practice allegations set forth in the complaint and heretofore discussed. Having dismissed independent 8(a)(1) allegations covering the same subject matter as Objection I, it shall be overruled. Having, found such violations with respect to all or part of the subject matter of Objection 3 (interrogation), 4 (coercive cam- paign propaganda), 5 (threatened lorss of jobs), 6 (threat- ened discrimination), and 7 (promise of benefit), those objections shall be sustained. Still open for consideration are Petitioner's Objection 2 pertaining to surveillance of union activity and 9 pertaining to the Employer's alleged submission of an incomplete, inaccurate, and conlfused Excelsior list. "4 See Resp xh # 4s, Sec (i lix 4bbh 437 I)( ISI()NS ()OF NAII()NAl I.AIO()R Rl All(ONS B()ARI) (:oicer iig ()Objctlion 2, the facts show thalt otl No- veniber 14, a unii)n rneetiiig ;was conducted for celploy- ces on the ()seeola Mills dtima shift at the "''Harhbor I." An ernployee i attendance in that meeting. obsereled McCrea at the registry desk i the hotel lobbh while the meeting was in progress. McCrea had made a rescrvalion for thatl mictig, and was at the desk comrpleting his reg- istrationi l ionll Repries ellativ Rothweilcr. s,ho had been ifiormled of McCrea's presence, confronted McC'ra wlhil t ctmployees looked on. Rotlhw ilct informed McCrea that he had no ight to be present and that the Union would file objections concerning the incident. McCr-ea w\ithdlc front the remlises, stating as lie tlid that "he knew nothing about the meetinig, that it was a public place." lie departed allnd was not again seen oil the premises. O()n the following day, in speaking to the emplolecs at thle captive-audience meetings, he reported the incrident at the Harbor hml the previous evening, explaining the reason for his presence. while denying that hte ,a;s laware that a union meeting was scheduled for that localtion at that time. : McCrea crediblv testified that on November 7, he had stayed at the Harbor Inn for the same purpose that he was present on November 14, and that it was his intention on both occasions to convenience himself by spending the night near the ()scecola Mills plait so that he could that evenilng at approximately 11 p.m. address the combined group of second- and third-shift employees at that plant, then early the next morning address the first shift at Osceola Mills, before returning to give a series of speeches at State College on November 15. 't Based on the foregoing, I find that McCrea was pres- ent in the Harbor Inn, a public place, for a legitimate reason totally unrelated to any union activity then in progress, and that his presence under those circum- stances was not misconduct interfering with the results of the election, nor an unfair labor practice.52 ()bjection 2 shall he overruled. :' " I i'Ltil %Ic( ris tcst iil il ti at h InoI klowlcd tt, It thti Ulnioll lmeetinlg schedulcd that er Ciiig t ti itlarbhli t. Asinaltc putIbhallirn hy the Unrliill oi is meeting w\ias ili a cnfused state. Nc'papllcl ptuca- lions listed it as ctiheduletd for NoileTlher 15. Shortly before t(ie rltcillng tnllionl Representatiive RHithweiler sent a letter to enployees which sclhed Illed the neting r I lueslday. Nveeiriher 14 As expresstd in the Illilon ' briefl the cOllillslll crleated by til citradiictory norticcs. land y "'Aord Of III)tIII"' ernptIyc's s cre ilfirnteld thiat it woulld he held i 1 No, lllber 14 ', Conltrary to tie Union. I see mrtihing suspect in McCrca's cxplanai tiil for Ilis desire to spend til lnight in the Harbor tun in Pl'illipsburg. l'cl)llsylsilnia. lather than to return to State C'ollege after giving thet l'eechlcs IIhail cening iand thenr dri.img back to address the first shift Ihe next morlning Stale College and ()Osceola Mills are Iappirlximattly 15 miles apart, involrviig ;a 45-htl minute drie '2 perhaps by osersight, tile complainl Ili this poceedlng Included rno 8(a)(l) allegationi based ion this Illcident :' See Univierial Pkagin (rp.. 149 NLRB 262, 203 (1964) Nr do I find that McCrea, effort 1( explain his presence t the employees during these captive splethes in NvLrllhbr IS to have created the impresion ,t surv llance li ;I manner ioffensive to the Act I will be recatled that Uiion1 rcprcseitaisc Rlhivciler charged McCrea; wtlh illegal cllduct alld Ihreatened to file }hjecttilrls basced thercion McCrea's effoirt to iiele Iralizt a;ls sich i ling, ailnd it cxilllil that his prcseICe i1 that ccasii i;ld iil clTlientin haS 'lsic[ Witl the Tinectillg thell i priegrrs,,. lardlls anlmotlnit% i, coid11 l irterfe'rling i ith tilt ' etCi.tiic or ittierxisc ilhin tI cmierridiilatiiln of tis Act Withi respect to Objection 9, it is noted that under es- tahlished oard policy, employcrs are directed to furnish "al election eligibility list, contaiining the names and ad- dresses of all the eligible voters"' wilhin 7 days after issu- altcc of a direction of election. 5 4 Here, the listing submit- ted by the Fmployer pursuant to that rule was not showli to have bee t1 ultimcly filed or to contain signifi- cant omissions of eligible employees Instead, the Union challenges the list as in noncompliance because the namces submittcd were inot alphabetized o a last nanle basis or segregated by place of employment. In addition. the Utllion observes thalt the list made zip codes available only in the case of 25 of the 424 employees on the list · hile some 23 emiployees ere listed with neither street address, post office box nutlllber, or RFD nnumber. Rather than ail alphabetized list on a last-name basis. that submitted bh the Respontdent was arranged on a first-tiame basis in nonalphabetized form, but in clustered alphabetical sequence with all the A's randomly togeth- Cer the 's followiing suit, and so n. l- This was the second :rxcelvior list submitted by the Respondent. The discrepancies contained therein were not evidenced in that furnished iii coInlTectiotl with the earlier election which was alphabetized on a last name-basis and con- tained zip codes for almost all listed. 5 In addition, the Employer, after submission of the list in question here. prepared the official voter eligibility list to be used at the election. hat list was segregated on a plant basis and was properly alphabetized on a last-name basis." Otn November 16, 1978, at a preelection meeting, union representatives sought to compare and cross-check the nanes appearing on the Excelsior list with aid of the official eligibility list. The union representatives request- ed a copy of the latter in order that they might utilize it under more convenient circumstances, and so as not to interfere with other tasks they had to complete prior to the election to be held the next day. The Company's rep- resentatives refused, requiring the three representatives to spend some 5 hours to complete the verification. The Union contends that the list in the form submit- ted, failed to comply with E.xcelsior, because it was con- structed in bad faith or, at the very least, with willful and gross negligence. I find merit in this contention. The rule requiring employers to furnish names and ad- dresses of eligible employees during the preelection period sought to "maximize the likelihood that all voters will be exposed to all argumenlts for, as well as against, union representation."'' 5 8 A further conisideration underlying the rule was enun- ciated, as follows: :4 I:r( /lor Undirlur Inc.. upru s I : he list submitd il this form i ould. as Uiniitnll A IIiess's testified. prestcil time-cionsuming problemns in connectiol with verification of eligi- ble Cnplrl ecs. icrieting deallines fr comnliuncating ",ith emplioyees through the Iliall iitd, indeed, simple locatlon of crnployecs who did lit go )x their firs lnames, but by nickilames :"S C ' t F I 6 :' Se C ' t hP I h 9(a) ailnd (hl It is nelcd Ihal Ihese lists alsio omitted 1 com1es 11-1 a US hit tiial st'gcill { t' etligIblc svoters :' lS? N R .ai 1241 438 C(INFRIK tiN(iNI FERIN(i, IN(' ['I']here is yet another basis on which we rest our decision . . prompt disclosure of employee names as well as addresses will, ec are convinced, elinli- nate thle nlecssity for challenges based soley on lack of knowledge as to the voters' identity. Later, guidelines for assessing compliance with the Ex- celvior doctrine were spelled out in Ponce leFevision (Cor- poration, 192 NLRB i 15, 116 (1971), wherein it \Vwas stated: Although it is not Board policy to apply the Excel- sior rule mechanistically neither is it our polic to vest the employer with unlimited discretion with re- spect to the content of the eligibility list. The rule's value as a means of insuring a fair and free election lies in its simplicity and ease of administration. For this reason, we need look only to whether or not under the circumstances of a particular case, the employer has substantially complied with its Excel- sior obligations. As we recently noted, the rule im- poses a simple duty on employers which can be sat- isfied by the application of a reasonable amount of diligence. Discrepancies not too far removed from those in- volved here, in Rite-Care Poultry Company, 185 NLRH 41 (1970), were considered grounds for setting aside an election, with the Board stating: The employer did not substantially comply with the requirements of Excelsior because the list of names and addresses which it supplied did not include in- formation available from its files as to street ad- dresses and/or post office box numbers. In like fashion, the Employer, prior to the Excelsior submission in this case, possessed the raw data and the capacity for submission of a list in proper form, with names alphabetized by surname and segregated by de- partment number. The list submitted in connection with the 1977 election was prepared in this fashion, and in- cluded zip codes. The official eligibility list prepared prior to the election of November 17, was i similar form. The sole explanation for the manner in which the Excelsior list was structured was offered through testimo- ny of William Marks, Respondent's data processing mall- ager and programer. Marks claimed that Ted Kolbe in- structed him to prepare a list of employees on payroll status as of a certain date and did not recall that Kolbe requested that it be alphabetical. The list submitted pur- suant thereto, according to Marks, was a computer print- out derived from keypunch cards which listed employees on a first-name basis." ' He claimed that the computer process did not have the capability of providing a list on a last-name basis until November 10, when Marks cre- ated a new program enabling the computer to accom- e Ietiim ill h, Mark, anlt <')(lilpill [ Pre,i.lcr , 1 Crca t IIt i IB. Cwillpan, i11 kl'llplllrilg Its lailljllg,, 1utill/ ti Ie %m1n1t list u r',llll )idl. Ihe ULniiol sirtik Ti a, argiiltii¢ai c d Irtl IilhciHtC hc I I idisr l ii thr1n in this respcmt plish that objectivc ' In explainingg the absence of ip codes, Marks indicated that the keypunch operator had not punched ii tile ip codes in the case of certain em- pII!cs, ill, l d hence thiley ,ould ot he fe]d into the corn- piltc r Marks gave no logical, persuasiv.c reason as to ,ashi the names were grouped on a first name, A(. basis, while otherwise nonalphahetizcd. the testimony of Marks itself discloses that t the time the E:xcclior list was prepared. the Company maintained rolodex files listing employees alp.habetically on a su,r- name basis. No explanation is offered ;is to, \h' Ithe list was not prepared from that source. Furthermore, no logical explanation was offered as to why the compuler had been programed to store employee narmes i the ex- traordinarily unorthodox, first-name style reflected in the list submitted to the nion. The question left unain- swered by Respondent is why it failed to comply with Erc,[lsior through either reprogramning its cornputer systeml or preparing a list manuallls. Its failure to act in this fashion resulted in the disseminairti(oti of data which foresecably would handicap tie Unllion all create coilfu- sion inl utilization of the list in vindicatiotn of the pr- poses set forth in ExcelZsior. Indeed, the FImployer's refus- al to accommodate the U'nion during the preelection coll- ference by providing it a requested copy of the official election eligibility list, though under no legal obligation to do so, was reflective of disposition to make it as diffi- cult as possible for the Union and is perfectly consistent with the possibility that the confused state of the Ercclvi- or list was deliberately conitriced. I find that, at a mini- mum Respondent failed to respond to its obligation under Elcelsior with the requisite degree of diligence and, accordingly, its act ion in that regard furiished ground(s for inxalidating the results of the election. Ac- cordingly, Objection 9 is herebh sustained. CON( I SIONS 0(-1 Lxw 1. Centre Engineering, Inc., is an employer engaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 International Unionl of Electrical, Radio anid Ma- chiie W'orkers, AFL.-CIO-CIC, is a labor organizlation within the meatiing of Section 2(5) of the Act 3. Respondent independently ,.Jolated Scctiont (a)(l) of the Act by coercively interrogating employees con- cerning union activity, by threatening a cessation of op- erations in the event of unionization. by promising belie- fits to induce employees to reject the Union, by threaten- rig a redtuction of current benefit levels if the Union were designated. by threatening discharge ii reprisal for union activity. by threatening prosecution in the courts because employees engaged in union activity, by threat- citing that discipline would be imposed on a nmore rigor- ous basis in the event of unionizationl and by campaign literature through which employees were informed. bh implication, that Respondent ,kould adopt positions at the bargaining table forcing a strike, resulting ill dire economic consequences for the cplo ccs " '\IlilllIl \ILIrk, IIlld 1i ii ,I l [ , I L, 11 t{ loo k h i ti 1J,,, llp . JM O)_~IHl i t'.fltlc'rllll/g Ihe l. ltt(ll. .. [kFilr.Jtlt'i ;ill ajl'i q'lh lt/I. 1i ,'11 .1 ,cparalr c pilIlt h {,~ )e F i ltl t t[ Ir 'e,> 1S 'S htI A ~,~cck 43ov I)E CISI()NS OF NATIONA. LA3()R RKELATIONS HOARI) 4. By the conduct described above which is the sub- ject of Objections 3, 4, 5, 6, 7, and 9, Respondent-Ern- ployer engaged in preelection misconduct interfering with the free choice of employees in the election con- ducted on November 17, 1978. Accordingly, that elec- tion shall be set aside and a rerun election conducted. 5. The unfair labor practices found in paragraph 3, above, have an effect upon commerce within the mean- ing of Section 2(6) and (7) of the Act. Ti RM li)ir Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, and conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, it is hereby recommend- ed: ORDER 6 ' The Respondent, Centre Engineering, Inc., State Col- lege and Osceola Mills, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activity, threatening a cessation of operations or discharge in reprisal for union activity, promising benefits to influence employees to reject the Union, threatening that benefits would be reduced if the Union is designated, threatening to prosecute employees be- cause they engaged in union activity, threatening to impose stricter discipline if a union is designated, and 6 In the cent no exceptions are iled as pros ided hb Sec 12 .46 of the Rules and Regulalions of the Naltional Labor Relations toaild, the findings, conclusions, and recommended Order herein shall, as previded in Sec 1112.48 of the Rules and Regulations, be adopted by the Board and become is findings, eonclusions, arid Order, and all objectionsl thereto shall he deemed waived for all purposes telling employees that it would adopt positions at the bargaining table which would lead to a reduction in benefits and provoke a strike, resulting in a loss of jobs and income. (b) In any like or related manner interfering with, re- straining, 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 col- lectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its Osceola Mills and State College, Penn- sylvania, plants copies of the attached notice marked "Appendix. " 2 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof, and be main- tained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS URL'HIR RECOMMIENI)DI) that the election con- ducted on November 17, 1978, in Case 6-RC-8307 be set aside and that said proceeding be severed and remanded to the Regional Director for Region 6, for the purpose of conducting a rerun election at such time as he deems the circumstances permit a free choice on the issue of representation. f"2 In the eent that this Order is nlfirced by a Judgmen of a Uni led States Crt of Appeals, he words in lie ntice reading "Posted by ()rder of the National llabor Relations Board" shall read "Posted Pursu- ant to a Judgment of the Unlited States Curl o' Appeals En frcilg an ()rder of the National l.abor Relations Board 440