Erickson'S Sentry Of Bend

ERICKSDN!S SENTRY OF BEND • 63 Foothills Food;-' Inc. d/bia Erickson's Sentry •of Bend and United Food and Commercial . Work- ers Local Union No. 303. Case 36-CA=4532 30 November 1984 DECISION AND ORDER" BY CHAIRMAN "DOTSON AND MEMBERS ' ZIMMERMAN ,AND HUNTER On 20 . March_ 1984 Administrative Law Judge Richard D. Taplitz issued the attached decision. The General Counsel filed excePtions 1 and a sup- _porting brief, and the Respondent filed an answer- ing-brief. The National Labor. Relations ,Board has delegat- ed its authority, in this ,, proceeding to a three- , member, panel., The Board has considered the decision ,and the record-in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions_only:to the extent, consistent with this Decision and Order. . The , relevant facts_ can, be briefly summanied. Foothills' 'Food, Inc. 'd/b/,a . Sentry of Bend, herein Erickson's, has- three storesin Bend, Redmond, and .Madras, Oregon. The., three consti- -tute -a single bargaining unit, in which the employ- ees .are represented by United Food and Commer- 'cial Workers •Local Union N. 303,. herein called the Union. Enckson's and the Union engaged in collective-bargaining negotiations in June and July t 1983. On 2 July Enckson's made its final offer.,to the' Union, 'and on :21 July members of the unit voted to authorize a strike. On the morning of 22 Ray, employee Harold C. Richards approached Bend store 'manager' andpart owner -Douglas Schmidt and asked what language he could use on a petition' to' resign from the Union: Schmidt obtained the language 2 from his•at- torney and gave it to Richards. While ,in Schmidt's office, Richards wrote the language on a piece of paper and signed it. Schmidt and' Richards then discussed who else would be 'interested in working during a striker and Schmidt called employee Randy Albright 'to his' office over the' store's P.A. •system. 3 During the afternoon Schmidt had Assist- 1 The General Counsel's exceptions were limited to the judge's find- ings concerning the Respondent's conduct in soliciting employees to:Nin a petition withdrawing their union membership on 22 July 1983 2 The petition read As of 7-22-83 the following resign from the Retail Clerks Union Local #303 and will not honor any strikes or picket lines These facts, which Schmidt testified to at the hearing, were not in- cluded in the judge's decision AlthOugh Albright testified that Assistant Manager Mike Sears had told him to go to Schmidt's office, the judge credited Schmidt over Albright Later in the day,fackSOWwas given the •Sarhe. in- formation by Schmidt in Schniidt's office", in the ;presence, of _Sear's. Jackson' told Schrnidt 'that, he ,would like the ,night to think about , it Schmidt' re- sponded that the Union Could striger as soon _as the next day and that he wanted , to keep JaCksOn on. He reiterated tha . t Jackson .,honored the - picket -line. he would be permanently replaced , and if he did not he would be fined. Jackson replied that he -wanted the day, -to think 'about. it. Schmidt told Jackson that if he had any questions he should talk to him, Sears; or-Richards. Jackson asked Schmidt if he :could 'see the petition and Schmidt replied ghat. Richards had it - and Jackson should talk to Richards or Sears. , Later that afternoon Jackson asked. Sears, if the petition were still in, the store and if he could sign it. Sears told him that the peti- tion had already been sent,inthe mail to the Union, but . that there would be, another .petition -to sign -since not everyone'in ghe store had signed the first petition. 5 _ • Shortly after Schmidt's conversation with Jack- 'son,- he spoke with Palfrey in 'his office, again in the presence of :Sears. Schmidt gave Palfrey the same information that he had given 'Albright -and Jackson. He `then told him- that he. could sign the _petition in the Produce' area' and keep his job, and that they would be sending the petition away later 4 The judge did not include in his decision the fact that the two were called in to Schmidt's office by Sears, but each of the employees, who were both credited over Schmidt and Sears, testified that Sears had come to him at his work station and told him to go to Schmidt's office 5 Although the judge failed to Include all of the above facts regarding Jackson in his decision, Jackson testified to the facts at the hearing and the Judge credited Jackson over all other witnesses at the hearing ant-Manager Mike' Sears, an: admitted superVisor, call employees Mike Jackson and -Brian Palfrey in- dividually from .'their 'work stations to :Schmidt's office.1 The 'credited'-- evidence -shows that each of the three employees was told by' Schmidt in his office that a strike was , imminent;* that 'if-the employee honored the picket line' he would be' permanently 'replaced; that, if he came to"work -through the picket line the Union- would fide 'him; that' dile signed the petition to' resign- from "the Union, the Union , could not fine' him for crossing the picket 1ine -t6 work; 'and that, if he -did resign -frOm , the Union and cross the-picket line to Work, his wages , .and benefits wOuld be the Same. - .:After Schmidt gave‘Allmight the' above informa- tion, :Albright signed 'the petition in SChmidt's office iii the presente of_ Richards' and Schrnidt. ‘RiChards then took the !Yadkin with him- to the . _ - . - produce area. _ _ 273 NLRB No. 11 ,64 DECISIONS OF NATIONAL LABOR_RELATIONS BOARD on that, night. :Palfrey later signed,:the ,petition in the prodrice area. 6. . - :The judge concluded that in these _circumstances Schmidt did not violate the Act by any of his,state- ments or. actions as salleged,in the -complaint. We disagree. While we agree -with the judge, that an -employer does not, violate Section .8(a)(1); by pro- viding. employees with information on 'ho, -to .resign or .withdraw from ,their union "as- long as ,the employer makes no, attempt to ascertain wheth- er employees ,will avail:themselys of this right nor offers any assistance, or-otherwise creates a situa- tion where employees would_ tend , to 'feel peril, in refraining from such revocation," A. L. White ,Go., 262 NLRB 575, 576 (1982), we ,disagree.that such is the, case here. 7 ,Thus, Schmidt discussed With Iiichards which, other employees to. app-rOach; 1 Schmidt, not Richards, called the three , employees to his 'office-one .6.. er the stofe,''s..P. A. 'system and two by his assistant managei—away from their work stations ,, and on company_ time; -Schmiks meetnig with two _orthe employees did not even 'include' 'Richards; Schmidt tOld - 'Jackson' to ask -Richards, Assistant' Manager Sears, or Schmidt If _he had any que'sfiOnS 'about the petitioit _Schinidt told employeePalfrey that they Would . be ;petition _away that night, and 'Sears 'told jac_lc-Son'that the petifiOn had ' been 'sent to the - Unioebut 'that there be another one' since -not'byeryone in the • store had 'signed the first one. theSe bircurristances, we . find- that the word arid 'aCtiOns‘ 'Of Schmidt and Sears went - beyond the 'there"firoviding of `information found by the-judge and constifute unlawful sOlicitation of union resig- •natiOns. 8 Not only did Schmidt assist Richards,-but he and Sears also gave the- a-ppearince that Erick- Son's favored the petition and encouraged 'empley- ees,to .gign 'it and created a situation _where employ- ees- would tend to feel peril -in refraining from sign- sing the petition. In-addition, Sears-made it clear by 'his statement to Jackson that Erickson's was moni- q' Palfrey testified to the above facts Although the judge did not in- clude all these (acts regarding Palfrey in his decision, he credited Palfrey over both Schmidt- and Sears' '• We agree with the judge that telling employees that they will be per- ' manently replaced if they. engaged in an economic strike and that they maj, be fined .by their anion if they cross the picket 'abseni any „ threats' or promises, lawful ." •- 8 See Hexton Furniture Ca, Ill NLRB 342, 344-345 (1955), Landmark :International Trucks, 257 NLRB 1375 (1981), remanded 699 F 2d 815 (6th -Cir ' 1983), Cummins Component Plant, 259 is-iLREi 456 (1981),- Texaco, , Inc. 264 NLRB 1132 (1982), enfd 722 F 2d 1226 (5th Cir 1984) _ tonng who had or had not _signed the petition.9 Accordingly; we find -that Ericksons unlawfully encobraged _and solicited employees to sign a peti- tion to withdraw_ from the Union, thereby impair- ing employee freedom -of choice in violation of Section 8(a)(1) of the Act.1° ORDER The National Labor-Relations Board orders that the Respondent, Foothill Foods, Inc. d/b/a Erick- Sbn'S- Senti-y of Bend, Bend OregOii,- its officers, gents,.suCcessois, and assigns, shall -. 1._Cease and desist from (a) UnlawfullY encouraging 'or' soliciting em- poyees to sign a petition whereby, the' withdraw frOnfUnited Food and CoMmercial Workers Local Union No. 303 or any labor OrganizatiOn 1.(b) In any like or related manner interfering With, -iestiaining, o coeicing emplOyee's in the ex- ercie Of The rights guaranteed them 'by Section 7 the Act. - ; • 'the following affirmative' action neces- sary to effectuate the policies of the 'ACt. -. '(a)' POit at '-ifs Bend,' Oregon store , copies' of the ittabhed-' notide' mailed " Copies of the' notice; ,On'fiiims provided by the Regional Di- rebtdr for- Region 19, after being signed by the Re- sporident's - authorized • 'representative, shall be posted- by- the -Respondent immediately upon re- ceipt- and maintained.. for 60 consecutive days in conspicuous places 'including 'all ,places where no- tices<to employees aie 'customarily posted. Reason- able steps shall be taken - by the' Respondent to 'ensure that the notices' are not, altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing ;within-,20 -days from the_ date of this Order what -steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is -dismissed insofar as it alleges unfair labor practices ;not found herein.. .- 8 ' See R L White Co, supra at 576 : i °. In so- finding, we note that this is unlike cases where an employer merely advises emplOyees of their contractual -right to resign from a _union buLotherwise_ maintains a neutral position See Perkins Machine Co. 141 NLRB 697. (1963), Cyclops Corp. 216 NLRB 857 (1975), Mosher Steel Co ;220 NLRB 336, 337 (1975), enfd '532 F 2d 1374 (5th Cm 1976) If this 'Orderisienforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment " of the-United States Cburt of Appeals Enforcing an Order' of the Nation- ' "al`Labor` Relations BOard " ' , ERICKSON'S SENTRY OF BEND 65 APPENDIX , NOTICE TO EMPLOYEES ' POSTED BY ORDER OF.THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize - To form, join, or assist any union To- bargain collectively through repres'enta- 'tives of their Own choice To act together for other mutual 'aid of pro- tection To choose 'not to , engage any' of these protected concerted actiVities. WE WILL NOT unlawfully encourage or solicit you to sign a petition withdrawing from United Food and Commercial Workers .LOcal -Union -NO. , 303. WE WILL NOT in any like or' related manlier _ interfere with, restrain, or coerce you in the ,exer- cise of the rights guaranteed' you by Section 7 Of ' the Act. FOOTHILLS FOOD,. INC. D/B/A ERICK- - SON'S SENTRY OF BEND, , .DECISION STATEMENT OF THE; CASE RICHARD D. TAPLITZ, Administrative, Law Judge. This case was tried in Bend, Oregon,- on February 1984. The, charge and amended charge were filed respec- tively on September 1 and , November 21, 1983,-, by United Food and Commercial Workers Local Union No. 303 (the. Union) The complaint ,- which issued on No- vember 22, 1983, alleges that Foothills Food, , Inc. d/b/fa Erickson's Sentry of'Bend (Respondent) violated Section 8(a)(1) of the National Labor Relations. Act. _ - . . , Issues 'The primary issues are whether Respondent violated 'Section 8(a)(1) of the Act by initiating . a petition seeking employee resignations from the Union;. soliciting its em- ployees to sign such a petition; by'threatening employees with loss of employment unless they resigned from the Union; by proinising employees an increase in_ benefits .and improved terms and conditions of employment if they resigned from-. the Union; and by interrogating an .employee concerning his and', other employees' .,union sympathies. • All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs., All .parties waived their, right to file briefs, and none were filed ,. On she entire, record .of the case and from my observa- tion of the witnesses and their demeanor, I make the, fol- lowing ' I. 'JURISDICTION • , Respondent, an Oregon corporation with an office and place of business in' Bend, Oregon, is engaged in the retail grocery-business. During _the year immediately pre- ceding issuance of, complaint, Respondent had gross sales of goods . and services valued -in excess of $500,000 and -during the same period of time Respondent caused to- be -.transferred and delivered to its facilities within Oregon goods valued in excess of $50,000 directly from sources outside Oregon ,or from suppliers within Oregon which in 'turn obtained such 'goods and materials directly from --outside Oregon The complaint alleges, the - answer admits,- and I find that . Respondent is' an employer en- gaged in commerce within the meaning of Section. 2(6) -and (7) - of 'the Act The Union is a labor organization Within She meaning of Section 2(5) of the . Act. - • • , • ' ID THE ALLEGED UNFAIR LABOR PRACTICES A. 'Background • :.Ericksons Sentry has three stores They are , located in Bend, Redmond, ,and Madras, Giegon. The three stores constitute a single baigaining ,unit in which the eniploy- ees are represented by, the Union. In June and , Jul' 1983 the three stores were engaged in collective-bargaining snegotiations with the Union On July 2, 1983, Respond- ent made a :Tull- and final" offer to the Union. At a union meeting on July 21, 1983,d strike vote was taken and authorization was given for a strike. On July 22, 1983, a petition was circulated in which employees withdrew from the Union. On the same day Respondent's store manager Douglas Schmidt' Spoke to employees Randy Albright, Mike Jackson, and Brian Palfrey. The General Counsel-contends that Respondent unlawfully involved itself with the petition and interfered with the Section- 7 rights of employees by the remarks he made to those three employees. The' strike never tOOk place. On August. 11, 1983,.Re- spondent and the Union executed a collective-bargaining 'agreement in -the three-store..bargaining unit, which -was effective by its terms from dune 1, 1983, through May 31, -1984 On August 8, -- 1983, employees 'of Respondent -filed a iietition With -the National Labor-Relations-Board in Case 36-UD-237 to rescind the authority of the Union, to make -an agreements requiring membership in the Union as a condition of emplo-ymeht. On' August 29 a copy of the Board 'notice, Of eleCtion in ,tliat case was posted at the Bend store. It .staied that an,election would be con- ; , 1 The complaint alleges, the ansv‘ei admiis, and I find that 'Schmidt, as well as Assistant Manager Mike Sears, Was 'an agent and supervisor of Respondent within the m6'n'1ng of Sec 2(11) of the Act , . FINDINGS OF FACT 66 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD dUcted' On September 8, 198'3. *Ori September-I, 1983, the Union filed the original charge in the instant case. That charge blocked the scheduled election and it has not yet 'taken place. - B. The Initiation of the Petition to Withdraw from the •• Union - The strike vote took rplace on July 21, 1983. At 8 a.m the following day Respondent's employee Harold C. Richards2 ' spoke to Store Manager Schmidt in the produce room of the Bend store. Richaidstwas a -union member and he had attended the meeting the: previous -evening. He told Schmidt that. at the meeting- the Bend store employees-had -.voted to accept 'Respondent's .firm and- final offer-but that the ,employees in the_other, two stores in the bargaining unit had .rejected it. Richards 'said that he did not know . whether the employeeS„were -going on strike or not but that for his own -personal-,rea- sons he would not strike.and he would cross a picket-line if he had to. Schmidt told ,Richards that there was a pos- sibility the Union might fine him. Richards replied that he was going to cross „the picket. line, because he needed. the work and that he was interested in starting a petiikin to , withdraw from .the Union., He asked Schmidt what language would be ,needed on a petition if -he were to start one. Schmidt replied that he would check ,with his legal representative. Schmidt then went to his' office and called his attorney who gave him legal advice: About a half hour' later Richards went intd`Schmides •OffiCe—and Schmidt tOld • Richards - a petition' to withdraw froth the -UniOn should state...Richards-used -Sarnidt's language to draft a petition which read: As- 01..7-22-83 .the following resign:from the -Retail Clerk's Union Local #303 and will' not honor 'any strikes or picket lines. - Richards .then:signed the petition.3 , C. The July 22, 1983 Conversatiqns Between Schmidt . and the Three Employees. - _ - Schmidt gave the wording of the petition to Richards on-July 22, 1983. On the same day he spoke individually to employees Randy Albright, Mike Jackson,' and Brian Palfrey. Albright was called into Schmidt's office about.9 a.m z that, day.4 - Albright testified that ,Schmidt, Richards'-presence, ,tOld him that there was going to be a strike the next day; that no one who honored the strike would be hired back; that he (Schmidt) was _starting a petition and that if he (Albright) signed -the petition resigning from the Union, 2 Richards.had.ithe title of produce manager However; counsel fonthe ' General Counsel_stated on the record that he was making no contention that Richards was a,supervisor within the meaning of the Act . 3 The' above finanigs are'based on the -Credited testimony of Richal-ils --and SChmidt, which was in laige measure mutually corroborative 4 Albright testified that he was called in at 1 p m Schmidt and Rich- ards,_who livere both' present during the conversation, testified that it was 9 am' As is set forth 'more fullr below, i 'do not believe that Albright's recollection N.vs always acctiiate and I credit Schmidt and Richards as to the time t.. he would be able to cro'ss the' picket line and work the next day Albright also averred that he asked Schmidt what the benefits and wages would be and Schmidt re- plied that the'vvages would be the-same and the benefits might be a little better Albright further . testified that Richards- was holding the petition' and that -Richards gave it' to Schmidt who in turn handed it to Albright who then signed it. - . . Richards'. testimony was quite different He averred that he was the ,one who did the talking at the meeting. According to Richards, he told Albright that the petition Was to Withdraw Trorn the Union, that he did not feel that the Union was representing them properly; and that it was up to :Albright to ,make his own decision as to whether he wanted to sign it, or not. ,Richards averred that Schmidt said that 'whatever Albright did would not affect the way he was treated, and that 'Schmidt never had the Petition in his hands. Schmidt's testimony was basically consistent'with that • of 'Richards.' He acknowledged that he spoke to a number of employee, but his testimony indicated that he Avasmot certain what he said to each one.- He,acknowl- 'edged,that he told Albright, Jackson,- and Palfrey that if they honored the picket line he would , permanently. re- place them. He also acknowledged that he told employ-, ees; that if they crossed' ,the picket line the Union could 'fine ,them; , that if they' Wanted to resign from the: Union „there Was a, petition going' arOund; and that , they were entitled' to' resign ' if 'they wanted tO. In addition, 'he averred that some employees asked him about 'wages and benefits and he replied that they would be the same. The demeanor of Albright; Schniidt; and 'Richards as well as the substance of their testimony gave reason to believe that they were not careful observers of 'what hap- pened and that their reports were not always accurate. Albright, in particular, appeared to be an honest witness who was easily confused. I am reluctant to rely too heavily On the thstimony of any' of those-three witnesses. Schmidt also spoke to Jackson and Palfrey on the same day that he spoke to . Albright-. Before speaking to those "three employe&" Schmidt had received advice from his andfney. All three employees testified that Schmidt cov- ered roughly the same subject matter Though it is possi- ble that Schmidt told 'different- things to the three em- ' ployees; if is much inOre likely that , he told the smile thing to all three The-testimony of Jackson and Palfrey, both of whom were called as witnesses by the General Counsel, was very similar as well as very credible. Jack- son. in particular appeared to have- a very good.recollec- lion of exactly what was 'said. As Lbelieve that Schmidt -did -make the same statements to Albright, Jackson,, and Palfrey, and that JacksOn's and Palfrey's ,recollections of the 'conversation were more accurate . than Albright's, I must !conclude that. Albright misconstrued some 'of Schmidt's remarks and that more weight has to be given to the testimony of Jackson 'and 'Palfrey. , Jackson' credibly testified to the , following. He was called into Schmidt's office about 3 p m. on Jtily. 22. Schmidt spoke to him in the presence' of Assistant Man- ager Michael Sears as well as Richards. Schmidt 'asked ' him Whether he knew that- the Union was threatening to ERICKSON'S SENTRY OF BEND 67 strike and might strike as soon as Monday He replied that he had heard there had been a strike vote but that he was not aware of any strike. Schmidt said that if he were to honor the picket line there would be a perma- nent replacement hired for him. Schmidt also said that if he crossed the picket line and came to work, there would be a big fine in it Schmidt then said that there was a way out because there Was a petition in the store that was being circulated and that if he resigned from the Union, he would not be subject to a union fine. He then asked what the wages and benefits would be, if he re- signed, and Schmidt replied that they would be the same He replied that he would like to think about it. He did not sign the petition.5 Palfrey credibly testified to the following Between 3 and 4 p m. on July 22 he was called into Schmidt's office where Schmidt spoke to him in the presence of Sears. Schmidt said that there might be a strike the next day. Schmidt also said that if Palfrey crossed the picket line he could be fined and that if- Palfrey honored the picket line he would be permanently replaced Schmidt then told him about the petition. Schmidt also said that if he resigned from the Union, wages would stay the same. Part of Palfrey's testimony was somewhat ambiguous At one point Palfrey testified that Schmidt, after talking about the fine, said that if he (Palfrey) resigned from the Union he could keep his job. On cross-examination he averred that Schmidt told him that if he resigned from the Union, wages would remain the same and he could have his job and work. However, Palfrey summed "up his testimony by averring that he interpreted Schmidt's re- marks to mean that, if he signed the petition, wages would be the same and he would not be faced with the alternative of being fined or being permanently replaced. Palfrey's interpretation was substantially the same as that of Jackson's in his conversation with Schmidt. I believe that Schmidt did tell him the same thing and that Jack- son's recollection of the exact wording was more accu- rate than Palfrey's 6 Palfrey did not sign the petition at that , time. •Later that day he asked Richards where the petition was and Richards told him it was on the wall behind the clip- board. Palfrey then read the-petition and signed it D. The Interrogation of Albright by Schmidt All but one of the violations alleged in the complaint related to the incidents that occurred on July 22, 1983. That one additional violation is geared to an alleged , con- versation that occurred a day or two before September 5 As mentioned above, Schmidt's testimony was often confused and, 'where It differs from that of Jackson, I credit Jackson Much of Sears' testimony was basically consistent with that of Jackson Sears averred , that Schmidt told Jackson that if a strike were to take place and if he Were a union member and crossed the picket line that he would be fined, but that if he resigned from the Union prior to the pickets going up that he would not be fined and he could continue to work With regard to other matters. I believe .that Jackson's memory was more accurate than that of Sears' Sears averred that when Jackson asked whether there were going to be any benefits. Schmidt replied that he had not looked into it • •• • ' ' 6 Both Schmidt and Sears testified that they did not recall any specific conversation with Palfrey 8, 1983, 7 which was the date the union shop deaudioriza- lion election was scheduled to take pike. Albright testi- fied that on that day Schmidt spoke to him iri front of the office as he was going to work According , to Al- bright, Schmidt asked whether he kneiv about the elec- tion and he replied that he did- Albright averred that Schmidt then asked what he thought about it and what employees Debbie Grant and Mary Hickman thought Albright testified that he answered that he did not know and he had not talked to the others Schmidt acknowledged that he' did talk to some em- ployees about the election He testified that he asked Mary Hickman whether she had seen the election notice on the checkstand and she told. him how she. felt about the situation. He also acknowledged that other employ- ees had spoken to him about the election Schmidt testi- fied that he did not recall any -conversation with Al- bright about September 6 or 7 regarding the election and that he had no knowledge- whatsoêver of any conversa- tions with Albright pertaining to the election. The charge in the instant case, which 'blocked the elec- tion, was filed on September 1, 1983. It is a bit difficult to believe that on September 6 or. 7 Schmidt asked Al- bright about an election when the election was not going to take place. Nor is it very clear why Schmidt would be motivated to ask such a question. The election, if it were to be conducted, would have no impact on the store's basic bargaining obligation. The contract had already been signed There was no strike in the offing nor was there any test of union and company strength. The elec- tion related solely to the Union's right to have a union- security clause. While those ..considerations raise some questions, the real issue turns on credibility As noted above, I have very little confidence in Albright's ability to accurately report the details of conversations. His tes- timony does not fit into any pattern of interrogation and there is no direct or collateral corroboration. Schmidt's testimony that he had "no knowledge" of such a conver- sation, though inartfully worded, did amount to a denial. I do not credit Albright with regard to that alleged con- versation and I therefore recommend that paragraph .6 of the complaint be dismissed. E. Analysis and Conclusions 1. Summary of the findings Though I have set forth the testimony in some detail, the findings can be simply restated. On the morning of July 22 employee Richards asked Schmidt what language he could use on a petition to resign from the Union. Schmidt consulted with his attorney and then gave Rich- ards the resignation language Richards incorporated it in a petition Later that day Schmidt had separate meetings with Albright, Jackson, and Palfrey. He told each of them that a strike was imminent; that if they honored the picket line they would be permanently replaced; that if they came to work through a picket line the Union would fine them; and if they signed the petition to resign The complaint alleges the conversation took place on or about Sep- tember 2, 1983 Albright in his testimony placed the conversation on Sep- tember 6 or 7 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Union, the Union could not fine them for work- ing through the picket line. When the employees asked about wages and benefits if they worked through a strike, Schmidt told them that they would be the same Albright signed the petition in Schmidt's presence, Jack- son did not sign the petition, and Palfrey signed the peti- tion_at a later time. 2. The language of the petition In response to Richards' request, Schmidt gave him the language to be used on the petition to withdraw from the Union. The Board has repeatedly held that such con- duct does not violate the Act. Mosher Steel ,Co., 220 NLRB 336, 337 (1975), enfd. 532 F.2d 1374 (5th Cir. 1976) R. L. White Co., 262 NLRB 575, 576 (1982) In the Mosher Steel case, the Board held: Absent some evidence that union resignation was a company-imposed condition for returning to work (or that employees were led to believe that it was such a condition), and absent any evidence that the Company did more than furnish employees with resignation language, we ,decline to find that Re- spondent's conduct in this regard was unlawful In the R. L. White Co., case, the Board held: An employer may lawfully inform employees of their right to revoke their authorization cards, even where employees have not solicited such informa- tion, as long as the employer makes no attempt to ascertain whether employees will avail themselves of this right nor offers any assistance, or otherwise creates a situation where employees would tend to feel peril in refraining from such revocation. In the instant case there is no allegation in the complaint that Respondent used the "petition as a device for coer- cively interrogating employees about their union sympa- thies It is true that Albright signed the petition in Schmidt's presence. However, there is no indication that Schmidt requested him to do so. Neither Jackson nor Palfrey signed in Schmidt's presence. Cf. Landmark International Trucks; 257 NLRB 1375 (1981), enf. denied 699 F 2d 815 (6th Cir. 1983). 3. The remark about permanent replacement An employer does not violate the Act when it perma- nently replaces economic strikers. NLRB v. McKay, 304 U.S. 333 (1938). Nor does an employer violate the Act when it tells employees that it will permanently replace them if they engage in an economic strike As the Board held in Eagle Comtronics, 263 NLRB 515 (1982) [T]he Board has long held that an employer does not violate the Act by truthfully informing employ- ees that they are subject to permanent replacement in the event of an economic strike. The Board has held that such c6mments do not constitute imper- missible threats under Section 8(a)(1) . . Unless the statement may be fairly understood as a threat of reprisal against employees or is explicitly coupled with such threats, it is protected by Section 8(c) of the Act. 4. The remark that the Union would fine employees Schmidt told Albright, Jackson, and Palfrey that the Union would fine them if they worked during a strike. The Union may lawfully fine members who cross a picket line. NLRB v. Allis Chalmers, 388 U.S. 175 (1967). It is not unlawful for an employer to tell employees what the law is. See Mosher Steel Co, supra. Schmidt did say that the Union would fine the employees rather than that the Union could fine the employees However, if that was Schmidt's opinion, he had the right under Section 8(c) of the Act to express that opinion. Section 8(c) states: The expressing of any views, argument, or opin- ion, or the dissemination thereof, whether in writ- ten, printed, graphic, or visual form, shall not con- stitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such ex- pression contains no threat of reprisal or force or promise of benefit. Even a misstatement of law by an employer will not vio- late the Act if it is free from any express or implicit threat that the employer by its own actions will interfere with employee rights. Daniel Construction Co., 257 NLRB 1276 (1981). Here Schmidt's statement that the Union would fine employees did not imply that any action would be taken by Respondent that would inter- fere with Section 7 rights. 5. The remarks about the petition Schmidt told Albright, Jackson, and Palfrey that if they signed the petition to resign from the Union, the Union could not fine them for working through the picket line. In a sense Schmidt was soliciting those em- ployees to sign the petition. It is not likely that Schmidt made his remarks for purely academic reasons. In some situations the Board has held the solicitation of union resignations or dues checkoff revocations by an eniploy- er to be a violation of the Act See, for example, Peabody Coal Co., 259 NLRB 1409, 1412 (1982); Cardinal Systems, 259 NLRB 456 (1981). In Texaco, 264 NLRB 1132, 1133 (1982), enfd 722 F.2d 1226 (5th Or 1984), the Board held that an employer violated Section 8(a)(1) of the Act where it "actively and effectively participated in the process of furthering employee withdrawal from the union." However, where, as in the instant case, the Em- ployer's participation in the process of furthering em- ployee withdrawal from the Union involves nothing more than tellng employees the different alternatives they face and the Federal law that relates to those alter- natives, then the free speech aspect of Section 8(c) of the Act must be given controlling weight. Schmidt did .no more than express his views of the situation and there was no express or implied threat that he would take any unlawful action against employees. Nor does the credited evidence establish that he made any promise of benefits. ERICKSON'S SENTRY OF BEND 69 In these circumstances I do not believe that any of Schmidt's actions or statements violated the Act as al- leged in the complaint. R. L. White Co., supra, Cyclops Corp., 216 NLRB 857 (1975); Nordstrom, 229 NLRB 601, 8 See also Town Plaza Hotel, 258 NLRB 69, 79 (1981), where Adminis- trative Law Judge Burton Litvack dismissed an 8(a)(1) allegation similar to the one in the Instant case, and the Board adopted the administrative law judge's decision pro forma in the absence of exceptions 605 (1977); Mosher Steel, supra; Perkins Machine Co., 141 NLRB 697, 700 (1963).8 CONCLUSION OF LAW The General Counsel has not established by a prepon- derance of the credible evidence that Respondent violat- ed the Act as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication]