Quinn Co.

' QUINN CO 795 Quinn Company and Operating Engineers, Local Union No. 3 of the International Union of Op- erating Engineers, AFL-CIO. Case 32-CA- 5228 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 27 October 1983 Administrative , Law Judge Jay R. Pollack issued the attached decision: The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, the Respondent filed cross-exceptions and a supporting brief, and the Charging Party filed a brief in response to the cross-exceptions. 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, 1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Quinn Com- pany, Fresno and Salinas, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Monterey, California, on June 30, July 1, and August 2, 1983. Pursuant to a charge filed against Quinn Company (Respondent) on February 7, 1983, by Operating Engineers, Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO (the Union), the Regional Director for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing of February 28, 1983, alleging in sub- stance that Respondent engaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. Specifically, the General Counsel alleges that Respondent's supervisors interrogat- ed employees about their union sentiments, solicited em- ployees to circulate, and themselves circulated, decertifi- cation petitions, and impliedly promised better benefits if employees abandoned the Union. Respondent filed an answer denying the commission of any unfair labor prac- tices and affirmatively alleged that litigation of the al- leged unfair labor practices was barred by a settlement agreement approved by the-Regional Director. All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire record, from my observation of the demeänor of the wit- nesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT AND CONCLUSIONS I JURISDICTION Respondent is a California corporation with offices and places of business in Fresno and Salinas, California, where it is engaged in the sale and service of heavy me- chanical equipment. During the 12 months prior to issu- ance of the complaint, Respondent purchased and re- ceived goods or services valued in excess of $50,000 di- rectly from suppliers located outside the State of Califor- nia. Accordingly, Respondent admits and I find that it is an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. • III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As mentioned earlier, Respondent is engaged in the sale and service of heavy mechanical equipment at its fa- cilities in Fresno and Salinas. Since at least 1970, the Union ,ha§ represented Respondent's employees at both the Fresno and Salinas facilities in one bargaining unit.' The last collective-bargaining agreement 'between Re- spondent and the Union expired on November 22, 1982. During early November 1982, certain of Respondent's employees circulated a petition seeking to oust the Union as the bargaining representative of Respondent's employ- ees. On November 8, Respondent received petitions signed by a majority of the employees in the bargaining unit stating that they no longer wished to be represented by the Union. The following day Respondent withdrew recognition from the Union On November 12, the Union wrote Respondent claiming that a majority of the em- ployees had signed authorization cards on behalf of the Union and requesting that Respondent negotiate for a 1 The parties stipulated that the following unit of Respondent's em- ployees constitutes a unit appropnate for the purposes of collective bar- gaining within the meaning of Sec 9(b) of the Act All full-time and regular part-time mechanics, parts men, welders, utility men and Janitors employed by Respondent at its Fresno and Salinas, California facilities, _excluding all office clerical employees, confidential employees, sales emplOyees, professional employees, guards, and supervisors as defined in the Act 273 NLRB No. 107 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD succeeding contract. That same date, the Union filed a petition in Case 32-RC-1736, requesting a representation election, and an unfair labor practice charge in Case 32- CA-5035, alleging that Respondent had committed unfair labor practices in soliciting the employee petitions. On December 15, a petition was filed in Case 32-RD- 452 by Leon Brown, an employee at Respondent's Fresno facility, on behalf of Respondent's employees seeking to decertify the Union. In January 1983, the Union and Respondent attempted to amicably settle the issues raised by the representation petitions and the unfair labor practice charge. The Union agreed to withdraw the charge in Case 32-CA-5035 and not to refile the charge (until a consent election could be held). The parties further agreed to consent to a Board- conducted election to resolve the question concerning representation The Union stated that this settlement was contingent upon Respondent refraining from any further unfair labor practices. On January 12, 1983, the Regional Director approved the Union's withdrawal of the charge and approved a Stipulation for Consent Election calling for an election to be held On February 10, 1983. On Feb- ruary 7, 1983, the Union filed the instant charge alleging violations of the Act covered by the withdrawn charge and also violations of thC Act allegedly occurring after the charge was withdrawn. Based on this charge, the Re- gional Director indefinitely postponed the scheduled election. On March 28, 1983, the Regional Director, based on the allegations of the instant complaint, dis- missed the representation petitions. Within this factual background, the General Counsel contends that Respondent committed certain unfair labor practices in soliciting employees to decertify the Union, including directly dealing with employees and promising benefits in order to induce employees to abandon union representation. Further, the General Counsel alleges that, after withdrawal of the first charge, Respondent, in cam- paigning for the scheduled election, continued to unlaw- fully promise benefits in order to induce employees to ,ote against union representation. As mentioned earlier, Respondent -COntends that its settlement of 'the first charge, approved by the Regional Director, bars litiga- tion of the instant case. Further, ResPondent raises a de- fense that the conduct of Gary Molezzo, shop foreman at Salinas., and Gene Harper, parts manager at Salinas, in support of the decertification campaign, is not imputable to Respondent beCause both Molezzo and Harper are bargaining unit employees and members of the Union. B.- The Decertification Campaign Leon Brown, a parts man at Respondent's Fresno fa- cility, testified that there "had always been talk among the employees about getting rid of the union" and that he and Joe Harrah, another Fresno employee, increasing- ly discussed the matter during the summer of 1982. Brown attributed these discussions to concerns over recent agreements between the Union and two competi- tors of Respondent, one in Sacramento and the other in Stockton. According to Brown, the employees at both companies received pay cuts as a result of the newly ne- gotiated union agreements. Brown heard that Harrah was attempting to decertify the Union in September but Brown neither saw nor signed a decertification petition at that time. However, in October, Brown contacted the Board's Oakland Regional Office and, based on -advice received from Board personnel, composed and circulated an employee petition Brown used company paper and personnel to type the petition which he circulated on company time. Brown circulated the petition between November 1 and 8. There is no evidence that Respond- ent encouraged Brown's decertification activities, or even that Respondent was aware -of such activities until after Brown had obtained the signatures of several employees November 1 and 2. Prior, to his circulation of the petition, Brown dis- cussed "getting rid of the Union" with Gary Molezzo, shop foreman, and Gene Harper, parts manager, both of whom are employed at Respondent's Salinas facility. After circulating the petition in Fresno, Brown called Harper and asked if Harper would Circulate a Petition in Salinas After Harper agreed to do so, Brown dictated the wording of the petition to Harper over the tele- phone. Harper handwrote a petition and, with Molezzo's assistance, he circulated the petition at the -Salinas facili- ty. C. The Employee Meetings Blake Quinn, Respondent's president, credibly testified that, in late October and early November, conversations concerning the Union and decertification were keeping "a lot of work" from getting done. 2 Dan Cunningham, Respondent's vice president, informed Quinn that a- de- certification petition was being circulated at the Fresno facility and that the employees had been questioning their supervisors about Respondent's health plan and profit-sharing plan. Based on this information, Quinn de- cided to call a meeting for all bargaining unit employees. Thus, on November 5, mandatory meetings for all bar- -gaining unit employees were conducted at both the Fresno and Salinas facilities. At the Salinas meeting, Quinn read a prepared state- ment which stated in pertinent part. Recently there has been a lot of discussion in the shop concerning the upcoming expiration of the contract between Quinn Company and the Operat- ing Engineers and what will happen when the con- tract expires. By law an employer must bargain with a union so long as that union represents a majority of the employees Quinn Company has not received any evidence which demonstrates that the union does not enjoy majority status even though there have been rumors that some employees no longer wisll to be represented by the union Quinn .Company in- tends to abide by the law and bargain with the union concerning entering into a new contract so long as the union represents a majority ,of employ- ees. As to what to expect in upcoming negotiations, Quinn Company cannot bypass the union and nego- .2 This testimony was corroborated by Brown QUINN CO 797 tiate directly with employees as that would be an unfair labor practice Therefore our proposed re- negotiations of the Contract will be presented to the union at the bargaining table. If anyone has any questions 'concerning this matter please feel free to aik me, your .union repre- sentative or any member of the NLRB. If anyone wishes to contact the NLRB in Oakland their phone number is (415) 273-7200. Quinn then said he had heard through the "grapevine" that the employees had "some questions" and that he was there to answer three of those questions Quinn then listed three topics: decertification, Respondent's profit- sharing plan, and Respondent's 'health and welfare plan. Quinn then turned the meeting over to Cunningham. Cunningham wrote the NLRB's phone number on a chalk board along with the figures 30 percent and 50 percent. Cunningham explained that if 30 percent of ,the employees signed a decertification petition, the NLRB would conduct an election and if 50 percent of the em- ployees signed such a petition, Respondent would no longer have to bargain with the Union. Cunningham emphasized that he could make no prom- ises. He then explained "in some detail the basic wording of the profit-sharing plan." Cunningham told the employ- ees that to be eligible • for the Company's profit-sharing plan an employee had to be 25 years of age (soon to be reduced to 21 years) and have worked for the Company for at least 3 years. He then gave an example of two em- ployees who had recently left Quinn Company after 10 and 15 years, respectively. Cunningham said that had the two employees been covered by the Company's profit- sharing plan the 10-year employee would have retired with $30,000 and the 15-year employee with $70,000. Cunningham explained that employees covered by the Union's pension plan were not eligible for the Compa- ny's profit-sharing plan.3 As to health and welfare, Cunningham compared Re- spondent's plan to the Union's plan -and concluded that they were "equal to or almost equal to"- each other. Cun- ningham added that 'Respondent was changing carriers so details about Respondent's new plan would not -be available until some time later. Both Quinn and Cunningham' emphasized that they could make no promises in regard to the profit-sharing or health and welfare plans Moreover, both Quinn and Cunningham refused to respond to certain questions be- cause their answers might be construed as promises. It is undisputed that the Company's profit-sharing 'plan has been in effect for • nonunion employees since about 1965. The plan provides in pertinent part. 'Notwithstanding the foregoing, an employee for whom the Company is required to make or making 3 The evidence is not clear as to what Cunningham actually said con- cerning the disqualification under the plan of employees covered by a pension or retirement plan under a collective-bargaining agreement The best I can ascertain from the vague testimony of the, employee witnesses is that Cunningham made it clear that employees could not be covered by the Union's pension plan and the Company's profit-sharing plan at the same time contributions to any pension or other retirement plan (other than this plan and social security) pursu- ant to a collective-bargaining agreement or agree- , ments on the date when such employee would oth- erwise be eligible to become a participant shall not become a participant so long as he remains subject to such condition but shall become a participant im- mediately thereafter if such employee ceases to be an employee for whom the Company . is required to make or makes such contributions. On November 9, Respondent called another mandato- ry employee meeting at the Salinas facility. Rick Greger- son, shop manager, read a prepared statement in which he announced that Respondent had been presented with a decertification petition signed by a majority of its em- ployees Gregerson said that based on the petition Re- spondent would no longer bargain with the Union. Gre- gerson thanked the employees for their support and said that the petition would be forwarded to the NLRB In anticipation of the election scheduled for February 10, 1983, Respondent held a mandatory meeting for em- ployees in late January or early February. At this meet- ing, Respondent distributed to employees a seven-page document concerning Respondent's benefits. 4 The seven- page handout included one page which was personally tailored to the recipient employee and which compared the employee's estimated retirement benefits under Re- spondent's profit-sharing plan and the employee's esti- mated retirement benefits under the Union's pension plan. The personalized page for employee John Larsen estimated that if Larsen worked 35 years under the union pension plan, Respondent would contribute $67,184 on Larsen's behalf, the contribution would experience zero growth and Larsen's pension at age 65 would be $1,411 a month. Larsen would not be able to withdraw a flat sum on retirement. The document showed two alternatives under. Respondent's profit-sharing plan. The first alterna- tive, based on 35 years of work, showed a company con- tribution . of $61,880. The contribution would grow •to $701,301. and, at age 65, Larsen's monthly, pension would • be $9,159 per month. Instead of taking a monthly . pen- sion, Larsen could withdraw a lump sum of $763,181. Under the second alternative, which was also based on 35 years of employment,- the Company would contribute $125,230 which would grow to $1,419,262. AC age 65, Larsen would receive $18,536 a month or a lump sum payment of $1,544,492. The handout also compared Respondent's health and welfare plan with ' that of the Union, and compared the yearend value of the profit-sharing plan with that of the Unon's pension fund. There is no .contention that any of the information contained in the document was false.. 4 The handout included the following disclaimer Attached is information concerning the present benefits for em- • ployees both for in the bargaining unit and for Quinn Company non- union employees In viewing these calculations, bear in mind that all the law permits us to do is to compare, or give you information which you can use to compare present benefits The law expressly prohibits the employ- er from making any promises in this period before an election 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on its belief that Respondent's distribution of the handout constituted an unfair labor practice, the Union filed the instant charge on February 7, 1983, and request- ed that the Regional Director postpone the scheduled election. D. Harper's Participation Gene Harper is parts manager at Respondent's Salinas facility. At all times material herein, Harper has been covered under the terms of the collective-bargaining agreement and has been a member of the Union. Harper assigns, directs, reviews, and evaluates the work of the seven employees in his parts department. Harper inter- views job applicants and narrows down the applicants to one or two. The remaining applicant or applicants are then interviewed by the shop manager Harper recom- mends who shall be hired and his recommendations have always been followed. Further, Harper grants employees time off and authorizes overtime. Finally, Harper is re- sponsible for written evaluations of parts department em- ployees. Accordingly, I find that Harper is a supervisor within the meaning of the Act. As will be discussed, infra, the issue is whether, in view of Harper's Inclusion in the bargaining unit, his- conduct in support of the de- certification petition can be imputed to Respondent. - Harper testified that he went to each of the people under his supervision and explained that, because he de- sired decertification, he had signed the petition Harper further explained that it was up to each employee to decide whether to sign the petition. Harper denied talk- ing with the store manager or the representatives of management about the petition. Jess Barba, an emPloyee and shop steward, testified that when he refused Harp- er's request to sign the petition, Harper responded that Barba's refusal put Barba in a "bad light." Although Harper did not specifically address Barba's claim, he did deny making any threats or promises Having observed Harper's demeanor and having considered the corrobora- tive .testimony of employees Larry Shepherd, Frank Shil- lak, and Daniel White, I credit Harper's testimony over that of Barba. Shepherd, a parts man under Harper's Su- pervision, testified that Harper informed him that a de- certification petition was "going around." According to Shepherd, Harper said he did not want to influence Shepherd's decision and that the decision to sign the pe- tition was entirely up to Shepherd. Shepherd further tes- tified that Harper did not make any promises or any threats. Shillak and White, two Other employees super- vised by Harper, similarly testified that Harper indicated a personal decision to sign the petition but that the em- ployees could decide for themselves whether to sign the petition. Shepherd, Shillak, and White all signed the peti- tion on November 5, 1982. As mentioned earlier, Brown had begun circulation of an employee petition at the Fresno facility on November 1. Harper and Molezzo did not begin circulation of a pe- tition at the Salinas facility until after the employee meeting of November 5. E. Molezzo's Participation • Gary Molezzo is the shop foreman at Respondent's Sa- linas facility and is in charge of 12 mechanics At all times material, Molezzo has been ineluded in the bargain- ing unit and a member of the Union. Molezzo does little, if any, mechanical work, and spends most of his time di- recting and assigning mechanics' work. Molezzo prepares evaluaiions of mechanics for employee personnel records. In order to be promoted to field mechanic, the highest paid mechanics' classification, an employee must have Molezzo's recommendation for the job. Molezzo interviews .job applicants and makes hiring recommenda- tions to the shop manager. Molezzo's recommendations have always been followed In addition, Molezzo has au- thorized time off for employees and has effectively rec- ommended discipline for employees. Accordingly, there is little doubt that Molezzo is a supervisor within the meaning of the Act. However, as stated above, the issue is whether, in view of-Molezzo's inclusion in the -bargain- ing unit, his ,conduct in support of the decertification campaign can be imputed to Respondent. In September 1982; prior to the circulation of the de- certification petitions at either the Fresno or Salinas fa- cility, Molezzo asked employees about his desire to "get rid of the Union." Molezzo- testified that he was "not too fond of the Union" because, in his view, his mother did not receive sufficient benefits upon the death of his father. Molezzo discussed this dissatisfaction with the employees. The General Counsel concedes, on brief, re- garding Molezzo's conduct in September and October, "as an individual member of the bargaining unit Molezzo had a right to participate in decertification activity, absent evidence that he was acting on behalf of Respond- ent " However, the General Counsel alleges that Molez- zo's conduct, associated with the decertification petition in November, violated the Act, on the ground that Mo- lezzo was acting on behalf of Respondent. John Larsen, a mechanic supervised by Gary Molezzo, testified that Molezzo walked up to Larsen, placed the petition containing employee signatures in front of Larsen and said, "No, huh?" Larsen answered `No." Loren Herr, another employee under Molezzo's supervi- sion, testified that Molezzo asked him to sign the peti- tion. Herr asked Molezzo if the employees would "be able to get a raise" without the Union. According to Herr, , Molezzo answered that Respondent had always been !Tan- in the past" and there was no reason would "change the policy" in the future. Norman Clatterbuck, a mechanic at the Salinas facili- ty, testified that Molezzo, his supervisor, presented the petition to him, asked Clatterbuck to read it and asked Clatterbuck to sign if he wanted to do so. Clatterbuck testified that Molezzo made no threats nor promises. Clatterbuck signed the petition. Richard Dampier and Ted McLaughlin, mechanics at the Salinas facility, simi- larly testified that Molezzo, without making any threats or promises, asked them to sign the petition. Both Dam- ' pier and McLaughlin declined to sign the petition to which Molezzo made no response. Charles "Skip" Bates, a former employee of Respond- ent, testified that, while he was employed by Respond- QUINN CO 799 ent, Molezzo was both his friend and supervisor Bates and Molezzo often ate lunch together and debated the Union, decertification, and related matters. Molezzo ex- pressed displeasure with the Union because Molezzo's mother had received an allegedly inadequate death bene- fit. According to Bates, Molezzo claimed on more than one occasion that the Union was "holding back Bates and that Bates would be better off without the Union." According to Molezzo, if Respondent was not required to pay lesser skilled employees an inflated wage rate it would be able to pay more skilled employees, like Bates, a better pay rate. Bates argued that Respondent could not entirely be trusted and that there was safety in the employees acting together as a group. Bates further testified that, some 4 months prior to the decertification petition, Molezzo, while on the telephone to someone at the Fresno facility; asked Bates whether the employees knew that "the Company can save $5,000 on each one of you if you weren't union?" Bates an- swered, "Yeah, right out of my pocket." On another oc- casion, Molezzo asked Bates to sign a decertification pe- tition but Bates simply told Molezzo "where to put it." While Molezzo denied telling Bates that management could save $5,000 per employee or that Bates could make more money without the Union, I have decided to credit Bates' testimony over that of Molezzo. Bates ap- peared to be a forthright and sincere witness Further, Bates, a former employee, had little to gain by his testi- mony; rather, he ran the risk of unnecessarily alienating his friend Molezzo. F. Quinn 's Conversation - with Bates Bates further testified that he had a conversation with Blake Quinn, Respondent's -president, -shortly after the employee meeting of November 5. According to Bates, he told Quinn that he liked the Union and believed him- self to be better off with the Union. Quinn said the Union was "holding back" Bates and that, without the Union, Bates could make more money because Respond- ent would not have to pay "as much" to employees less talented than Bates. In early January 1983, Quinn again discussed the Union with Bates. According to Bates, Quinn said he un- derstood that Bates was supporting the Union but that Quinn would "appreciate" Bates' support, if Bates could "swing over" to Respondent's side in the election. Quinn repeated his claim that the Union was holding Bates back and that Bates, because of his skills, could make more money without the Union. Quinn acknowledged that he had at least one and perhaps more than one con- versation with Bates. However, he denied that he told Bates that the employee could receive better wages with- out the Union or that Bates was being held back by the Union. As discussed above, I found Bates to be a credi- ble witness. In addition, Quinn could not recall the sub- stance of his conversation with Bates. Accordingly, I credit Bates' testimony over that of Quinn G. Analysis and Conclusions 1. The settlement agreement It is well established that a finding of an unfair labor practice cannot be based on presettlement conduct unless there has been a failure to comply with the settlement agreement or subsequent unfair labor practices have been committed. See, e.g., Hollywood Roosevelt Hotel Co, 235 NLRB 1397 (1978); Northern California Council of Labor- ers (Joseph's Landscaping Service), 154 NLRB 1384 (1965), enfd. 389 F 2d 721 (9th Cir. 1968) A settlement disposes of all issues involving presettlement conduct unless previous violations of the Act were unknown to the General Counsel, not readily discoverable by investi- gation, or specifically reserved from the settlement by the mutual understanding of the parties. Hollywood Roo- sevelt, supra; Steves Sash & Door Co., 164 NLRB 468 (1967), enfd. as modified in other respects 401 F.2d 676 (5th Cir. 1968). However, the Board has also consistently held that where a charging party requests that a charge be withdrawn, and the Regional Director approves that request, the allegations contained in the withdrawn charge may nonetheless be realleged and litigated. See, e.g., Gulf States Manufacturers, 230 NLRB 558 (1977), enf. denied 598 F.2d 896 (5th Cir. 1979), John F." Cuneo Co., 152 NLRB 929 (1965); Zimnox Coal Co, 140 NLRB 1229, 1230, 1237 (1963), enfd. 336 F 2d 516 (6th Cir. 1964). In the absence of a Regional Director signing or approving a settlement agreement, any such agreement between a charging party and a respondent which result- ed in the withdrawal of the charge is viewed by the Board as a private arrangement which does not estop the Regional Director from proceeding on any new charges alleging the same conduct as the withdrawn charges. Id. Applying the above legal principles, I find that while the Regional Director approved the Union's withdrawal request, he did not enter into or approve the private agreement between the parties. Hollywood Roosevelt, supra, relied on by Respondent, involved a valid settle- ment agreement approved by a Regional Director which provided that the employer take certain remedial action. In the instant case, the Regional Director merely ap- proved withdrawal of the charge, apparently to expedite the election process. The Regional Director made no at- tempt to resolve the unfair labor practices. Accordingly, I find that the Regional Director was not estopped from issuing complaint on the instant charge. 2. The conduct of Molezzo and Harper While an employer is usually liable for the conduct of its supervisors, an exception exists where the supervisor is also a bargaining unit member. Where supervisors are members of the bargaining unit, they may lawfully solicit signatures on a decertification petition so long as there is no evidence that the employer "encouraged, authorized or ratified the conduct" or that the employer "acted in such a manner as to lead employees reasonably to be- lieve" that the supervisors were acting on the behalf of management. A. T & K Enterprises, 264 NLRB 1278 (1982); Times-Herald, Inc., 253 NLRB 524 (1980) See also Montgomery Ward & Co., 115 NLRB 645, 647 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957). There is no dispute that Molezzo and Harper were in- cluded in the bargaining unit and covered by the last col- lective-bargaining agreement between the Union and Re- spondent. Notwithstanding that Molezzo and Harper are supervisors within the meaning of the Act, for the fol- lowing reasons I find that their conduct cannot be imput- ed to Respondent. There is undisputed evidence that Molezzo had strong personal reasons for favoring decertification and that he communicated these reasons to other employees on many occasions prior to the decertification campaign. Molezzo was upset that his mother received only a small sum upon his father's death and he communicated that fact to other employees Similarly, Harper told employees that he "personally" favored decertification but that the deci- sion to sign was entirely up to them. Leon Brown, em- ployed at the Fresno facility, discussed getting rid of the Union with Molezzo and Harper prior to November. After Brown began circulating a petition on November 1 at the Fresno facility, he spoke to Harper about having a petition circulated at the Salinas facility. The decertifica- tion process had begun prior to Respondent's mention of decertification at the meetings of November 5. In fact, Respondent held the employee meetings of November 5 in response to the activities of the unit employees at the Fresno facility. Thus, the fact that Molezzo and Harper circulated the decertification petition after Respondent mentioned decertification at the Salinas employee meet- ing does not raise an inference that Respondent encour- aged, authorized, or ratified their conduct. Nor do I find that Respondent caused employees to reasonably believe that Molezzo and Harper were acting on behalf of Re- spondent in circulating the decertification petition. Rather, I find that under the circumstances of this case the conduct of Molezzo and Harper, as bargaining unit members, cannot be imputed to Respondent. According- ly, I shall recommend dismissal of those allegations of the complaint which allege unlawful statements by Mo- lezzo and Harper. . 3. The employee meetings In the absence of union animus, an employer does not violate the Act by providing accurate information re- garding the mechanics of decertification, in response to questions from its employees. GAF Corp., 195 NLRB 169 (1972). Similarly, an employer may give its employees advice about how to withdraw support from a union, if the employees have, on their own initiative, requested such advice. Tartan Marine Co., 247 NLRB 646 (1980); Payless Drug Store, 210 NLRB 134 (1974). The General Counsel, relying on Craftool Mfg. Co., 229 NLRB 634 (1977), argues that Respondent violated the Act because its remarks concerning decertification were unsolicited and not the result of employee questions. The Craftool case, however, is not helpful because, in that case, the employer suggested a decertification petition before the employees took independent action on their own. More- over, the employer in Craftool advised the employees concerning tactics and instructed them to return the peti- tion to him.5 In the present case, die decertification campaign clear- ly originated with the employees and was well under- way, at least in the Fresno facility, before Respondent made its remarks. More importantly; the decertification activity was disrupting productivity at the Fresno facility and Respondent sought to minimize the problem by re- ferring employee questions to the Board's Regional Office. Thus, in this case, it cannot be said that Respond- ent's remarks instituted or 'directly assisted the decertifi- cation drive.. Respondent told the employees that there had been rumors and questions about decertification. It then simply informed employees that it would not cease bargaining with the Union based on a decertification pe- tition supported by 30 percent of the unit employees but that, if a majority petitioned to decertify, Respondent would no longer have to bargain with the Union. The employees were then given the Board's telephone number. The giving of Such information, unaccompanied by any threat of reprisal or promise. Of benefit, cannot be found to be violative of the Act. , In my view, the General Counsel's argument ignores the fact that the' Fresno employees' were included in the bargaining unit. The General Couniel argues that "no employee in Salinas' asked at the meeting [or before] about decertification; profit sharing, or about Respond- ent's health plan." -However, Respondent's employees at Fresno were taking ' worktime to discuss these matters and Respondent chose to minimize this problem by call- ing an employee meeting at Fresno. It is only logical that Respondent would hold a similar meeting with its Salinas employees. The employees from both facilities were in- cluded in the bargaining unit, had telephonic contact with each other, and were similarly affected by these matters. The General Counsel does not dispute the accuracy of Respondent's remarks concerning the Company's profit- sharing plan Rather, the General Counsel argues .that Respondent implied that the employees would get the Company's klan only if they decertified the Union. Fur- ther, the General Counsel argues that the discussion of the profit-sharing plan, when "viewed in the context of Respondent's prior unfair labor practices," constitutes direct dealing in violation of Section 8(a)(1) and (5) of the Act. As discussed 'above, the employees were told that they could not be covered simultaneously by both the Union's pension plan and the Company's profit-sharing plan. At the same- time, the employees were warned that there were no "guarantees" or "promises." Considering the number of years the Company's plan had been in effect, the employees could reasonably discount the warning against "guarantees" and conclude that the plan would continue in existence if they withdrew their support from the Union. , - Section 8(c) of the Act states that the expression of "any views, argument, or opinion" shall not be evidence 5 For other cases in which the employer 'titillated the decertification or repudiation activities, see Texas Electric Coop, 197 NLRB 10, 14-15 (1972), and Pembek Oil Corp, 165 NLRB 367, 374-375 (1967) QUINN CO 801 _ of an unfair labor praCtice so long as such expression contains "no threat of reprisal or force or promise of • benefit." Moreover, an employer May make a prediction as to the precise effects he r believes unionization will have on his company so' long as' the prediction is "care- fully phrased on the basis of 'objective fact to carry an employer's belief as to demonstrably probable conse- quences beyond his control." NLRB v. Gissel Packing Co., 395 U.S. 575, .618 (1969). An employee benefit plan which restricts coverage to unrepresented employees is per se violative .of. Section 8(a)(1) of the Act, regardless of whether the employer adds to the misconduct by implementing the restriction or exploiting it during an Organizing campaign. See, e.g., Niagara Wires, Inc., 240 NLRB 1326, 1328(1979); Green- brier Hotel, 216 NLRB 721, 727 (1975). In Belcher Towing Co., 265 NLRB .1258 (1982), ,the Board found that an em- ployer violated Section 8(a)(1) by implying that company benefit plans would be forfeited if employees voted for the union. The employees' benefits booklet in the Belcher Towing case stated that employees could not participate in the "plans if they were 'Covered by a collective-bargain- ing agreement In addition the employer fold employees that they would "lose" the benefit plans' if the union came in. These statements were found to be misrepresen- tations of the eligibility requirements of one plan which lawfully excluded employees from that benefit if they were covered by collective-bargaining agreement provid- ing for the same or similar benefit. On the other hand, the Board has approved benefit comparisons under a number of circumstances. Absent threats of reduction of benefits or promise of increased benefits, benefit comparisons are permissible campaign techniques which fall within the bounds of free speech permitted by Section 8(c) of the Act See, e.g., Thrift Drug Co., 217 NLRB 1094 (1975); Orchard Corp. of America, 170 NLRB 1297 (1968); American Thread Co., 101 NLRB 1306, 1324 (1952). Applying the above principles to the facts of this case, I find that Respondent indicated to employees that they could not be covered by the Union's pension plan and the Company's profit-sharing plan at the same time. The employees were not told that the union members were ineligible for the profit-sharing plan. While the distinc- tion between ineligibility due to a plan provided for in the collective-bargaining agreement and ineligibility due to union representation might be too subtle for the em- ployees to distinguish without a fuller explanation than that given by Respondent, I cannot find on the record before me that Respondent impermissibly equated union membership or union representation with disqualification from the profit-sharing plan In Belcher Towing, supra, relied on by the General Counsel, the employer was found to have violated Section 8(a)(1) by misrepresenting the disqualification for a lawful benefit plan. In the in- stant case there is insufficient evidence that Respondent misrepresented the fact that employees receiving a pen- sion or retirement plan under a collective-bargaining agreement were lawfully ineligible to participate in the profit-sharing plan. At the employee meeting of February 2, Respondent presented each employee with a personalized document which estimated, based on past experience, what the em- ployee could expect to receive under Respondent's profit-sharing 'plan. Although the estimates were quite generous, it is not alleged that they were inaccurate; rather, it simply is alleged that the estimates constitute an implied promise of better benefits. However, like the re- marks made in November, Respondent qualified the re- marks by emphasizing that it was making no promises. Indeed, the document warned that it was no comparison and that the "law expressly prohibited the employer from making any promises in this period before the elec- tion." As discussed above, such comparisons, have been held to be permissible campaigning— The fact that the comparisons mentioned large sums of money should not make unlawful an otherwise permissible comparison. 4. Quinn's conversations with Bates As discussed earlier, Charles Bates credibly testified that on two occasions Quinn, 'Respondent's president, told Bates that' the' Union was holding Bates back and that, without the Union, Bates- could make more money. These Conversations occurred on November 5 and some- time in early January 1983. Bates could reasonably con- clude, and it is here concluded, that Quinn was impliedly promising Bates an increase in pay if the Union were de- certified. Accordingly, I ,find that Respondent violated Section 8(a)(1) of the Act by such conduct. Cummins Component Plant, 259 NLRB 456, 460 (1981). CONCLUSIONS OF LAW 1. Respondent, Quinn Company, is an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(1) of the Act on November 5, 1982, and again in January 1983, by promising an employee in- creased wages if the Union were decertified 4 The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as set forth above, the General Counsel has not established that Respondent has violated the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. On these findings of fact and .conclusions of law and on the entire record, I issue the following recommend- ed 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Quinn Company, Fresno and Salinas, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Promising employees higher wages, or other bene- fits, in order to induce them to withdraw their support from Operating Engineers, Local Union No. 3 as their bargaining representative. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. - 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its Fresno and Salinas, California facilities copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent 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 Re- spondent has taken to comply: 7 If this Order is enforced 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 Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United Stated Government After a hearing at which all sides had an opportunity to present evidence and state their positions the National Labor Relations Board found that we have violated the National Labor Relations Act, and has ordered us to post this notice. t. Section 7 of the Act giVes employees these rights To organize To form, join, or assist any union • To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- ticin To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT promise higher wages, or other benefits, in order to induce you to withdraw your support from Operating Engineers, Local Union No. 3 as your bar- gaining representative. • WE WILL NOT in •any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Rela- tions Act. QUINN COMPANY