Atlantic Forest Products, Inc.

ATLANTIC FOREST PRODUCTS Atlantic Forest Products, Inc. and Local 20408, United Warehouse, Industrial and Affiliated Trades Employees Union. Cases 11-CA-9951 and 11-RC-4938 23 January 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT. On 17 January 1983 Administrative Law Judge David S. Davidson issued the attached decision. The Respondent filed exceptions and a supporting brief,," and the General Counsel filed an answering brief, cross-exceptions, and a brief in support of the cross-exceptions. The Respondent filed an answer- ing brief to the General Counsel's 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,2 and conclusions as modified. The judge found that the Respondent's instruc- tions to employees to remove their union buttons were effectively cured by their prompt rescission, and, therefore, did not violate Section 8(a)(1).3 We affirm this finding.4 The judge also found, and we agree, that the Respondent violated Section 8(a)(1) by watching more closely Joe Carr's in-plant ac- tivities because of his union support. We also affirm the judge's findings, only for the reasons given below, that the Respondent unlawfully interrogated David, Norf]eet, and that the Respondent violated Section 8(a)(1) by withholding a regularly sched- uled 1 January 19815 wage increase because of the employees' union activities. Unlike the judge, however, we find below that the Respondent's speeches to its employees consti- 1 The Respondent has requested oral argument . The request is denied as the record, the exceptions, and the briefs adequately present the issues and the parties' positions 2 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. 8 No exceptions were filed to the judge's finding that the no-solicita- tion rule's lawfulness was not at issue. We observe, however, that T.R.W. Bearings Division, 257 NLRB 442 (1981), cited by the judge , was over- ruled by Our Way, Inc., 268 NLRB 394 (1983). 4 In doing so, we find it unnecessary to pass on the judge 's comments involving the alleged differences in curing in-plant solicitation unfair labor practices as opposed to other unfair labor practices. 5 All dates are in 1981 unless otherwise stated. 855 tute protected speech under Section 8(c) of the Act. Finally, we adopt the judge's recommendation to set aside the election based on objections corre- sponding to the unfair labor practices, and reject the Respondent's exceptions to the judge's denial of its motion to dismiss the election objections for improper and untimely service. 1. Addressing first the motion to dismiss, the Re- spondent argues the Union failed to comply with Section 102.69(a) of the Board's Rules anti Regula- tions requiring that objections be filed within 5 days after the tally of ballots has been furnished, and formerly requiring that copies be served "im- mediately" on the other "parties."7 The Respond- ent argues the Union improperly served, its lawyer, rather than the corporation itself. The Respondent also argues the objections were not served by reg- istered mail as required by Section 102.112 ofthe Board's Rules and Regulations, but by regular mail. Finally, the Respondent alleges the objections were not served "immediately" following the 8 January election because they were postmarked 15 January, and not received until 19 January. We find no merit in the Respondent's exceptions. In Alfred Nickles Bakery, 209 NLRB 1058, 1059 (1974), the Board stated: [I]n order to support a variance or deviation from the clear requirements of the Board's Rules, there must be some showing that there has been an honest attempt to substantially comply with the requirements of the Rules, or, alternatively, a valid and compelling reason why compliance was not possible within the time required by the' Rules. The Board further stated, however, that its Rules and Regulations are not to be interpreted with a "`slavish' adherence to form rather than sub- stance,"" nor as a "strict code with inflexible mean- ing irrespective of circumstances." With these principles in mind, we first turn to the Respondent's arguments that service was inad- equate because its lawyer, rather than the corpora- tion, was served by regular, and not registered, mail. Although the corporation's lawyer is not a "party" within Section 102.8(a)'s definition, we are 6 The election was conducted 8 7anuary 1981 Sixty-one votes were cast for, and 113 against , the Union, with 5 nondeternnnative challenged ballots 7 The Union's objections were dated and served 15 January 1981 On 14 September 1981, the Board amended Sec 102.69 (a) to provide that the Regional Director, and not the objecting party, serve a copy of the ob- jections on each of the other parties to the proceeding . The case at hand is governed by the rules prior to the amendment. Saeger Carbide- Corp., 267 NLRB 47 fn. 2 (1983). 8 209 NLRB at 1059 9 Nestle Co., 240 NLRB 1310, 1311 (1979). 282 NLRB No. 105 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to find that service on the corporation's lawyer is not an "honest attempt to substantially comply with the requirements of the Rules." More- over, the Respondent does not contend that it did not receive actual notice of the Union's objections. We further find that service by regular mail does not require, dismissal of the objections. Section 102.112 requires "[s]ervice of papers . . . shall be made by registered mail, or by certified mail, or in any manner provided for the service of papers in a civil action by the law of the State in which the hearing' is pending." In Alleghany Warehouse Co., 256 NLRB 44, 45 (1981), the Board found the union's service of its objections on the employer by regular mail was "technically not in compliance with our rules regarding the_ proper manner of service." Relying on Alfred Nickles, above, howev- er, the Board refused to exalt "form over sub- stance," and denied the employer's motion to dis- miss the objections because the union made actual service on the employer and provided contempora- neous evidence of that service. Here, like Alleghany Warehouse, the union made actual service con- firmed by a certificate of service. We now turn to the Respondent's argument that it was not served "immediately" with copies of the objections. Section 102.69(a) requires that "[w]ithin 5 days after, the tally of ballots has been furnished, any party may file [objections]" and formerly re- quired "[c]opies of such objections shall immediate- ly be served on the other parties by the party filing them, and a statement of service shall be made" (emphasis added). Here, the tally of ballots was fur- nished 8 January 1981, and on 15 January 1981 the Union filed timely objections to the Respondent's conduct. The copies of such objections were mailed 15 January. The date of service is the date of mailing. See Section 102.113 of the Board's Rules and' Regulations. As copies of the objections were mailed to the Respondent 15 January, we find they were served "immediately" within Section 102.69(a)'s meaning. Accordingly, the judge prop- erly denied the Respondent's motion to dismiss the Union's objections. 2. The judge found that Supervisor Mack Jones unlawfully interrogated David Norfleet regarding his union activities.10 We agree for these"reasons. According to Norfleet's credited testimony, he began wearing a union button to work after notices of the election were posted. Supervisor Richard 10 Although the complaint alleges that Jones unlawfully interrogated several employees "concerning their union activities and sentiments," the General Counsel only produced evidence on Norfleet's interrogation Dixon approached him and requested he remove the button.'' Norfleet also testified that on one occasion Su- pervisors Ted Wright and Richard Dixon called him from his job into the breakroom and said, "David, don't think that we are picking on you be- cause we are not . . . [w]e want you to stay away from [fellow employee and union supporter] Joe Carr, in fact, don't go nowhere [sic] down there unless someone send[s] you." 12 Norfleet stated that he told Wright and Dixon that he knew they were "bothering me because you know [sic] that I am a 100 percent for the union." Norfleet further testified that on the day before the election Supervisor Mack Jones waited until he was alone with Norfleet in the breakroom and told him to close the door. Norfleet testified Jones said, "Dave, I am not supposed to talk to you but just between me and you . . . [w]ell, how are you going to vote?" Norfleet told him that he was going to vote "yes." In Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the Board returned to the longstanding "totality of the circumstances" test in cases involving alleged interrogations of open and active union supporters. The Rossmore House Board stated it would "weigh the setting and nature of interrogations involving open and active union supporters," and listed four criteria in footnote 20 for determining whether such question- ing is unlawful under the test: (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation's We first find that Norfleet was an open and active union supporter. Norfleet openly declared his union ties by wearing his union button and by telling two supervisors of his "100 percent" sup- port of the Union. We further find, under the totality of the circum- stances, that the Respondent's questioning of Nor- fleet was an unlawful interrogation. Applying the criteria recited in Rossmore House's footnote 20, above, we conclude that Jones' questioning of Nor- fleet was accompanied by the Respondent's unlaw- ful monitoring of Joe Carr's in-plant activities. As noted, two supervisors told Norfleet to "stay away" from Carr. Although Jones is a lower level 11 As noted, we affirm the, Judge's finding that the Respondent's prompt rescission of its instructions to employees to remove their ninon buttons effectively cured any violations., is We have affirmed the judge's finding that the Respondent violated Sec. 8(a)(1) by watching more closely Joe Carr's in-plant activities be- cause of his known union support. The General Counsel does not allege that Wright's and Dixon's remarks to Norfleet violated the Act. 13 269 NLRB at 1178 fn. 20. ATLANTIC FOREST PRODUCTS 857 production supervisor, he isolated Norfleet in the breakroom and asked Norfleet how he was going to vote in the election the next day , acknowledging as he did so an awareness of the inquiry's impropri- ety. Under the circumstances, we find Jones' ques- tioning Norfleet coercive and in violation of Sec- tion 8(a)(1) of the Act., 3. The complaint alleges, and the judge found, that the Respondent violated Section 8 (a)(3) and (1) by withholding 'a regularly scheduled 1 January wage increase. 14 We agree only for the following reasons. The election, as stated, was scheduled and held 8 January. The employees first received notice that the annual wage increase would not be given in an 18 December 1980 employee newsletter: DELA Y IN JANUAR Y INCREASE Many of you have asked what the company is going to do about a pay raise in January. I regret to notify you that the January adjust- ments in wage rates and benefits will have to be postponed for all employees involved in the pending NLRB Election. This delay is required to avoid the appear- ance of vote-buying by the company in view of the fact that the NLRB will hold an elec- tion on January 8. Our counsel has advised us that wage increases at this time might be con- sidered to be an unfair labor practice and that the company should not take this, risk. As ' you know, AFP is paying, and always has paid, above the best rates for this area. With or without a union, we intend to follow this policy. There has never been a need for any person from the outside to put pressure on us to pay the best rates we can. Without a union, we are in a position to adjust rates as conditions require. You all know that we adjust rates twice a year, as we are able, and as it is needed. Under union con- tracts, wage rates are fixed, usually for periods of one year-sometimes longer. Normally, during the period of negotiations with the union all wage rates and benefits are frozen at the existing level. To sum up, in view of the election on Janu- ary 8th, we cannot say what increase there will be. I hope each of you will vote no on January 8th so we can once again deal with each other free of all these rules. The :General Counsel also presented the testimo- ny of employees Willie Davis, Erie Downey, I s David Norfleet, and Joe Carr. According to Davis' credited testimony, Supervisor Tim Briggs called a department meeting in December, and in response to an employee question about the withheld wage raise, said the Respondent,"really couldn't do any- thing now until all of this union stuff was over." Downey testified he asked his supervisor, Mike Harris, sometime in December why there would be no wage increase. According to Downey, Harris replied that it was "because of the union campaign that was going on . . . during the campaign, no raises or anything were supposed to be given out." Carr also testified, Harris told the maintenance de- partment employees that they would not get the raise "because of the union campaign." Norfleet also testified that Supervisors Richard Dixon, Ted Wright, and Mack Jones told him the employees would not receive the raise "because that would be a sort of a bribe, the union might look at it as a bribery, saying that they might give us too much or, they would be saying that they would be buying us for us [sic] to vote against the union, and that is why they couldn't give us the raise." Finally, it is uncontradicted that on the day before the election Industrial Relations Manager Tom Boag stated in a speech to employees that "[i]n bargaining, all wages and benefits are negotia- ble . . . . everything starts from scratch and even the benefits and wages you now ' have are bargaina- ble . . . [w]ages might go up or down or stay the same." In defending its withholding of the wage in- crease, the Respondent relies on the decision in Uarco Inc., 169 NLRB 1153 (1968). In Uarco, the employer posted and distributed a notice to em- ployees informing them that an annual wage and benefit adjustment would be postponed to "avoid the appearance of vote-buying" in the upcoming representation election. A month later, Uarco's plant manager gave a prepared campaign speech justifying its actions and also sent a letter to em- ployees reiterating its intent to pay the "going wage rates" in the area, "with or without a union." 16 After the election, which the Union lost, the employer adjusted wages and benefits accord- ingly. The Board reversed the Regional Director's finding that the employer's announcement concern- ing the withheld annual wage increase was objec- 14 No party excepts to the judge's finding that the Respondent, "for at least several years," granted wage increases on 1 January and 1 July. 15 In his decision, the judge inadvertently referred to "Downing," rather than "Downey " We correct the error 16 169 NLRB at 1154 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tionable, concluding, inter alia, that the employer's "announcement . . . and its subsequent campaign statements [did not] shift to the [union] the onus for the postponement of adjustments in wages and ben- efits for employees it sought to represent J nor did it] disparage and undermine the [union] by creating the impression. that it stood in the way of their get- ting planned wage increases and benefits." 17 Rather, the Board found that the employer in Uarco "made clear in its campaign statements .. . that whether or not its employees were represented by a union, it planned [to adjust wages] into con- formity with prevailing rates in the area; and that the sole purpose of its announcement . . . was to avoid the appearance that it sought to interfere with their free choice in any elections which might be directed."18 Here, the judge found that the first two para- graphs of the 18 December employee newsletter (reproduced above) were "virtually identical" to the language, found permissible in Uarco, 169 NLRB at 1153. The judge found that the subse- quent paragraphs, however, weakened the Re- spondent's assurances it would continue to follow the same wage policy "with or without a union."19 The judge found that the fourth and fifth para- graphs implied there would be an immediate wage increase without a union, but "a , delay for an in- definite period of negotiations for an uncertain in- crease with a union." The judge further found, unlike Uarco, that the supervisors' responses to employee questions about the withheld wage increase put the onus for the wage postponement on the Union. Finally, the judge,found Boag's statement on the day before the election that "[i]n bargaining . . . everything starts from scratch and even the benefits and wages you now have are bargainable" was distinguishable from Uarco's facts, where assurances that the wage policy would remain the same were "repeated" fol- lowing the wage postponement's announcement. The judge found that the "evenhanded impression" created by the 18 December newsletter's opening paragraphs, therefore, was repudiated by the super- visors' subsequent statements and Boag's preelec- tion speech. It is well established that an`employer is required to proceed with an expected wage or benefit ad- justment as if the union were not on the scene. E.g., Stumpf Motor Co., 208 NLRB 431, 433 (1974); Dan Howard Mfg. Co., 158 NLRB 805, 813 (1966), 17 Ibid. 18 Ibid. enfd. in pertinent part 390 F.2d 304 (7th Cir. 1968); cf. Dynatronics, 186 NLRB 978, 979 (1970). An ex- ception to this rule, however, is that an employer may postpone such a wage or benefit adjustment so long as it "[makes] clear" to employees that the ad- justment would occur whether or not they select a union, and that the "sole purpose" of the,adjust- ment's postponement is to avoid the appearance of influencing the election's outcome. Uarco, above at 1154. See also Heckethorn Mfg. Co., 208 NLRB 302, 306 (1974), enfd. 504 F.2d 425 (6th Cir. 1974) (no violation found in withheld annual wage in- crease where, inter alia, there was "no indication that the Company intended the withholding of the wage increase to have an effect upon the outcome of the election, or that the employees believed such to have been the case.") In making such announce- ments, however, an employer must avoid attrib- uting to the union "the onus for the postponement of adjustments in wages and benefits," or "disparag[ing] and undermin[ing] the [union] by creating the impression that it stood in the way of their getting planned wage increases and benefits." Uarco, above at 1154. Applying these principles to this case, we fmd that the Respondent unlawfully attributed to the Union the withholding of the 1 January wage in- crease. We agree with the judge that the "even- handed impression" created by the opening three paragraphs of the 18 December newsletter was re- pudiated by the newsletter's remaining content and by Harris' subsequent statements.2 ° Unlike Uarco, where the employer "made clear" to employees that, "whether or not [they] were represented by the union" the employer would continue to con- form with prevailing wage rates, the Respondent's statements, at best, conveyed conflicting signals to employees as to its motivation for postponing the wage increase. Thus, the newsletter began by tell- ing employees the wage delay is "required to avoid the appearance of vote-buying" and that "[w]ith or without a union, we intend to follow [its policy of paying `above the best rates for this area']." The Respondent, however, then compared its freedom without a union to adjust wages "as conditions re- quire" to wage rates under a union contract which are "frozen at the existing level," and concluded by stating , that "in view of the election on January 8th, we cannot say what increase there will be." We agree with the judge that such statements sug- gest an "immediate [wage] increase without a union but a delay for an indefinite period of negoti- 19 Although not discussed by the judge, the employee newsletter's 2 Unlike the judge, we do not find the statements attributed to Dixon, third paragraph is similar to the excerpt from the plant manager's speech Wright, and Jones, or Boag's statements (discussed below) improperly at- m Uarco, above at 1154. tributed the wage postponement to the Union. ATLANTIC FOREST PRODUCTS 859 i ations for an uncertain increase with a union," and, accordingly, find the newsletter improperly attrib- uted the wage postponement to the Union. Also, certain supervisory statements following the newsletter's distribution tended to shift the onus to the Union for the wage postponement and otherwise disparaged the Union by creating an im- pression "that it stood in the way of their getting planned wage increases and benefits." Uarco, above at 1154. Thus, as previously recounted, Supervisor Harris stated that the wage postponement was be- cause of the "union," without clarifying that the policy of reviewing wages would continue with or without the Union. Downey testified he asked Harris why there would be no wage increase. Ac- cording to Downey, Harris replied that it was "be- cause of the union campaign that was going on ... during the campaign, no raises or anything were supposed to be given out." Carr also testified Harris told the maintenance department employees that they would not get the raise "because of the union' campaign." Cf., e.g., Centre Engineering, 253 NLRB 419, 421 (1980) (employer unlawfully attrib- uted to the union its failure to grant a wage in- crease, because, inter alia, "statements [that a raise would have been given but for the union] were not made in the context of the [employer] explaining that benefits were being withheld to avoid influenc- ing the outcome of election.") Accordingly, we conclude the Respondent's announcement and withholdings' of the 1 January wage increase vio- lated Section 8(a)(1) of the Act. 4. We now turn to the judge's findings that President Sandy Fulton's22 5 January speech un- lawfully' threatened employees with plant closure, and that General Manager Bruce Weber's and In- dustrial Relations Manager Tom Boag's speeches on 7, January unlawfully threatened job loss and plant closure if employees unionized. We reverse. Fulton's Speech On 5 January Fulton delivered a prepared speech to around 200 employees on the first and second shifts. The speech was tape-recorded and transcribed, and its content, therefore, is undis- puted.ss Fulton opened his remarks by reviewing 2i The General Counsel does not except to the judge's findings that the Respondent shortly after the election granted a general wage increase retroactive to 1 January, nor did the General Counsel seek any remedy ordering the Respondent to reimburse employees for the withheld wage increase. See, e.g., Otis Hospital, 222 NLRB 402, 405 (1976). 22 At all relevant times, Fulton was president of Atlantic Forest Prod- ucts, Inc. and also vice president and general manager of the parent cor- poration, MacMillan Bloedel Building Materials, U.S 23 Although four employees testified to Fulton's speech, only employ- ee Downey's testimony contradicted the speech transcript. Downey's tes- timony was not credited by the judge. the structure of Atlantic Forest Products, Inc. and its parent, MacMillan Bloedel,, and described their corporate objectives to increase productivity and product quality, to maximize the products extract- ed from raw material, and to increase and expand Atlantic Forest's timber or raw material base. He emphasized that "good profits" were required to support these objectives, and that although "Mac- Millan Bloedel is not an anti-union company [and has] an excellent working relationship with lots of [its] employees," it had also had some "bad experi- ences" within the organization. Fulton then proceeded to discuss eight unionized operations of the organization which were closed, or expected to close, because they were "unprofit- able," some of which had also incurred strikes. Fulton also told employees that "work stoppages cost [the Company] something like 29 million dol- lars in 1979," money that the Company "now don't [sic] have to buy more trees for this operation." Fulton also singled out a former plant in British Columbia that went on strike for "totally unreason- able demands" and four other plants that "[couldn't] make money . . . [because they were] operating with Long Shoreman Unions [sic], [e]xtremely high labor rates and the productivity is very low . . . the people don't want to work."' Fulton further stated: Being unionized is no guarantee that we will be successful. You should know now that we will never grant any unreasonable demand made upon us by anybody-union or other- wise-if it makes this plant or any of our other plants uncompetitive. To do so is absolutely suicidal for that operation. Fulton then turned to Atlantic Forest's own per- formance in 1980 and his prediction for 1981. The Company, he said, was not expected to make any money at all in 1980 because of snow in January, February, and March; high interest rates in April through June; equipment problems; and poor prod- uct prices. Although things were "improv[ing]," Fulton said that the Respondent had lost $250,000 between 1 July and the end of the year, despite spending $500,000 "upgrading," repairing, and buying logging equipment. In 1981, however, Fulton predicted "good news," pointing out "five major ingredients" needed for Atlantic Forest Products to be profitable: good markets and cus- tomers, trees, a good manufacturing facility, money for investment and inventory, and "[m]ost impor- tant of all" a "stable work force . . . particularly well trained, highly skilled." Fulton reviewed each ingredient's status for 1981, and told the employees the Company had a "good work force . . . [of] 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well trained and highly skilled [employees]" and that "[the Company] has spent lots of time and money and will definitely be spending more." Fulton concluded, as follows: - I want to impress upon you what we don't want to do. MacMillan Bloedel does not want to do anything to encourage any of you to leave it. That's why we pay competitive wage rates and benefits. That's why we kept every- body employed when we didn't have any logs. When we couldn't sell our products because no one would buy them, that's why we built inventory. To keep you people here, who are valuable employees, we don't want to lose you. When you weren't making any money, I mean, look back over the last six months- we're losing money, we kept putting more money into this operation. We didn't give up. MacMillan Bloedel has done this and I'm a part of it. (?) [sic] and frankly, we're optimistic about Atlantic Forest Products and the future of this operation. We have faith in this oper- ation, in you, our employees. We've had our difficulties, we've made mis- takes. I think we're correcting them, I think we're working at continuing to make progress. (?) [sic] We're committed to that program. If we don't correct our mistakes or provide a good wage for you, you're gonna leave us, and we don't want that to happen. I think it's your turn now. I think it's your turn to convince MacMillan Bloedel that you have faith in the company and that MacMillan Bloedel should continue to have a very positive attitude toward Atlantic Forest Products and its em- ployees. MacMillan Bloedel is committed, and it should be obvious to all of you now. I want you to show your commitment on Thursday by voting no to an unknown and the uncer- tainty of an unknown union. - I want to look forward to Thursday. I want to look forward to a profitable operation. We spent a lot of time and money over the last period talking to you about the union. Trying to make sure that we could tell you ev- erything we know about this , (?) [sic] to help you not make a mistake. Personally I'm tired of losing (?) [sic] Lose time, lose production, lose profit, lose lumber we could make. I'm tired of losing all of that. I think you're probably tired of all the distrac- tions. Make no mistake. I want you to vote no on January 8th and I want all of us to get back to our job. Our job is to make Atlantic Forest Products a successful, profitable operation. That's our job (?) [sic]. I would like to be here for the election on Thursday, but I can't. I have to go to Vancou- ver. All the senior managers in MacMillan Bloedel from all over the world are meeting there to discuss all of our operations and the future of those operations. I will be asked to give a report on Atlantic Forest Products. Nothing would please me more than to include in my report that the ma- jority of you, our employees, voted no to keep this New York union out of our operation. I want to report that there's no question about Atlantic Forest Products having a stable, re- sponsible work force. Thank you for your time. In support of his conclusion that Fulton's speech unlawfully threatened employees with plant clo- sure, the judge, while finding no explicit threat of plant closure, found Fulton's statements created in "employees' minds a firm connection between past plant closings and unionization." The judge princi- pally relied on Fulton's statements describing Mac- Millan Bloedel's "bad experiences," and that the "common operative fact stated [by Fulton] was that the plant was unionized," thus "firmly plant(ing)" the idea that the same could happen to Atlantic Forest Products, Inc. The judge further found that certain of Fulton's statements implied24 that if employees voted for the Union, MacMillan Bloedel would question the employees' faith and "would not continue to have a positive attitude toward them, and stability and responsibility of the work force would be in doubt." The judge con- cluded that an "interested employee" could only draw a conclusion that the plant's future was in jeopardy, and that it was "likely, to become the next `bad experience' of MacMillan Bloedel." We agree with the judge that Fulton never ex- plicitly stated that the plant would close if the Union won the election.25 Unlike the judge, how- a4 The judge isolated the following statements by Fulton: the granting of unreasonable union demands would be "suicidal for that operation", it was the employees' turn to "convince MacMillan Bloedel that [they] have faith in the company and that [the Company ] should continue to have a very positive attitude toward Atlantic Forest Products and its em- ployees"; and that Fulton wanted to report to management that there was "no question about Atlantic Forest Products having a stable, respon- sible work force." as In so agreeing, we find that this fact alone distinguishes the case from Stride-Rite Corp., 228 NLRB 224, 230-234 (1917), relied on by the judge. Unlike here, in Stride-Rite "both [in] the first distribution [to em- ployees] and again just 2 days before the election, the employees were expressly told that the future of their jobs and the plant were dependent on the results of the election" (emphasis added). Id. at 233. Stride-Rite is also distinguishable because the employer in that case "repeatedly" re- Continued ATLANTIC FOREST PRODUCTS 861 ever, we are unable to find that Fulton's statements implied plant closure for unlawful rather than eco- nomic reasons. The judge, as noted, principally relied on Fulton's statements describing the parent corporation's "bad experiences," in which the "common operative fact" in each case was that the plant was unionized. The judge further found that certain of Fulton's comments implied that if the Union won the election, Atlantic' Forest Products would be the next "bad experience" of the corpo- ration. The judge's fmdings in this respect do not with- stand analysis, however, because Section 8(c) per- mits employers truthfully to describe their experi- ences with unions, so long as the communications "do not contain a 'threat of reprisal or force or promise of benefit."' NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The General Counsel does not contest the factual accuracy of the parent corporation's "experiences" with its unions. 2 6 Further, Fulton never stated that any of the plants were closed due to union animus, and ex- pressly assured employees at the beginning of his speech that "MacMillan Bloedel is not an anti- union company" and "[t]hat if anybody thinks that, they're wrong," because it had "an excellent work- ing relationship with lots of our employees" with "lots of 'successful, " very profitable operations around the world." That Fulton then reported on some unionized plants which were closed, or expected to close (the "bad experiences") because of "unprofitable" oper- ations, is precisely the type of speech Section 8(c) protects. As noted, these statements are evidently accurate descriptions of the Respondent's, experi- ences with unions, and an employer is not limited by Section 8(c) to reporting only on favorable, as opposed to unfavorable, facts.. See, e.g., P. R. Mal- lory & Co. v. NLRB, 389, F.2d 704, 707 (7th Cir. 1967) ("the company had the -right to support its opinions by citing past experiences with the same union in other plants which the company operat- ed"); Rexall Corp., 265 NLRB 121, 122 (1982), minded employees of the fact that it did not "own [its] building nor [had] it signed a lease for it," and emphasized as "not true" a union assertion that the employer "was not [in town] on a month-to-month basis, but must stay ... no matter what happens .. . until [a later date,]" Id. at 231-233. 26 The General Counsel in her brief states that Fulton's remarks were not "knowledgeable predictions based upon economic facts" because of the eight plants Fulton stated had closed or as experiencing layoffs, Fulton allegedly testified that he did not know whether the Ohio ware- house was unionized, nor whether the Longshoremen represented the employees at three other facilities. We have carefully examined Fulton's testimony and the transcript of his speech to employees , and disagree with the General Counsel's characterization of his testimony. Thus, Fulton in his speech never implied that the Ohio and Camden, New Jersey warehouses were unionized. Rather, Fulton in the speech and his testimony stated that the Longshoremen represented the Baltimore, Maryland, and the Tampa, Florida warehouses. enfd., in- relevant part, revd. in part and remanded 725 F.2d 748 (8th Cir. 1984), supp. decision 272 'NLRB 316 (1984) (no violation where, inter alia, the employer "merely brought to his listeners' at- tention a partisan account of the drawbacks, rather than the advantages, associated with union repre- sentation"); NLRB v. Village IX, Inc., 723 F.2d 1360, 1368 (7th Cir. 1983) (restaurant owner's state- ment during union campaign about, inter alia, "competitive nature of restaurant business and .. . that only one restaurant in [the city] was unionized and it was doing badly" had "some objective basis" and " (t]o forbid expression of that opinion would not serve the interests of [the employer's] employ- eqs, for unionization might in fact hurt rather than help them in the long run"). Accordingly, we dis- miss that portion of the complaint alleging that Fulton's conduct violated Section 8(a)(1). Weber's and Boag's Speeches Similarly, we disagree with the judge's conclu- sion that Weber's and Boag's 7 January speeches violated Section 8(a)(1) of the Act by threatening employees with job loss because of their union ac- tivities. The General Counsel contends that Weber's and Boag's speeches repeated the alleged threat of plant closure made by Fulton 2 days earli- er (see above), and, further, that Boag threatened to reduce wages and benefits if the employees chose the Union to represent them. Weber and Boag both spoke at a meeting at which all employees attended. According to Weber's credited testimony, he read first from a prepared text27 in describing a sample ballot's layout, including the following comments:28 Over on the left side is a box marked "YES". If you are willing to pay union dues and fees; if you are ready to turn all of your affairs over to the union bosses and do what- ever they say; if you want to take a, chance on union troubles and strikes and lost jobs., then you make an "X" in the YES BOX on the left side. 27 The judge credited Weber's testimony that he read the speech ver- batim, and discredited employees Downey's and Cart's version to the extent it conflicted with the written content of the speech. 28 Weber's statements on "tak[ing] a chance on union troubles and strikes and lost jobs" and "not . . tak[ing] a chance on strikes and lost paychecks and lost jobs" were not specifically alleged to violate the Act because they failed accurately to inform employees of their replacement rights in the event of an economic strike. Moreover, this additional issue was not fully litigated, and the judge's findings on these particular state- ments were limited to whether "Weber's . . ' speeches threatened plant closure in violation of Section 8(aXl) of the Act." Cf. Kelly-Goodwin Hardwood Co., 269 NLRB 33, 37-38 (1984), enfd. mem. Nos. 84-7243, 84-7351 (9th Cir. 1985) (scope of complaint and litigation must be exam- med to determine whether an issue was properly litigated). Accordingly, we will not pass on those statements' legality 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I don't believe many of our employees will be voting yes. Over on the right side is a box marked "NO". If you believe that you will be better off without union trouble here; if you do not want to pay dues; if you do not want to give up your personal freedom; if you do not want to take a chance on strikes and lost paychecks and lost jobs; you will make an "X" in the NO box. Most of our employees at one time or an- other have already indicated they plan to vote NO. The judge, relying on NLRB v. Gissel Packing Co., above, 395 U.S. 575, found that the "repeated references to job loss and plant closure were likely to have been and were intended to be construed as threats that the plant would close if the Union were voted in." The judge's "careful reading" of the speech, along with its "ambiguity," convinced him of its unlawfulness. We disagree. Contrary to the judge, we find Weber's com- ments while explaining the ballot's layout to em- ployees constituted mere argumentation protected by Section 8(c). In Gissel, above at 618, the Su- preme Court stated that "an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communi- cations do not contain a `threat of reprisal or force or promise of benefit."' Here, Weber's statements communicated some of the collective-bargaining processes' economic realities, and "merely brought to his listeners' attention a partisan account of the drawbacks, rather than the advantages, associated with union representation." Rexall Corp., above, 265 NLRB at' 122. Accordingly, we dismiss that portion of the complaint alleging that Weber's con- duct violated Section 8(a)(1). Boag's speech (reproduced at length in the sec- tion of the judge's decision entitled "6. Speeches by Bruce Weber , and Tom Boag") followed Weber's.29 Like Weber's speech, the judge "care- fully read" the speech, and concluded it also un- lawfully threatened plant closure and loss of wages and benefits. On the alleged plant closure threat, the judge found that Boag told employees that the Respond- ent "cannot and will not" increase its financial problems if it meant jeopardizing the plant's future. Boag then stated30 that "excessively high wage scales [could] mean the elimination of jobs com- pletely," citing Fulton's reference in his speech to three of the closed plants. Boag told employees he 29 Like Fulton's and Weber's speeches, the judge credited the written version of Boag's speech, and its content is undisputed. 30 The facts here are more fully set forth than in the judge's decision. was "personally involved" in one closing, and that it was a "very sad feeling walking through a plant where the machinery is rusting away," and to see the "look of despair" in employees' faces, and that he "didn't want to see it again." Boag then turned to the issue of job security and strikes, and dis- cussed a strike's impact on job security.31 Boag also told employees that the Respondent had unions in other locations, and that "past experi- ence tells us that if this Union got in here it would be most difficult to continue to improve productivi- ty and efficiency in this plant." Boag said that as a "New York Union" representing "a small number of truck drivers in the New York area," it knew "absolutely nothing about operating a lumber mill or cutting trees." The "real decision," Boag stated, was employees' "confidence in the management of this company and yourself to build a financially strong compa- ny," or whether employees were "willing to risk [their] steady job and paycheck and the welfare of [their] family and this community on empty prom- ises." On the alleged threats of lost wages and benefits, Boag told the employees that unions merely wanted "money," that the Union would promptly seek a dues checkoff if it won the election, and that, "[i]n bargaining, all wages and benefits are ne- gotiable," and the Union "might be willing" to trade certain items to obtain a dues-checkoff provi- sion. Boag continued: In bargaining, all wages and benefits are ne- gotiable. The union might be willing to trade a lot of other things off for check-off, especially if we were to agree that it would run for a full year and you couldn't change your mind or cancel it during that time. In bargaining, so far as we are concerned, everything starts from scratch and even the benefits and wages you now have are bargainable. - Bargaining is no guarantee of a better thing. In bargaining, things might get better or worse. Wages might go up or down or stay the same. If the union were to win the election, we will bargain in good faith, but I can tell you that we are not going to be pushed around by some' New York union who knows nothing about our business 31 Like Weber's statements, above at fn 28, Boag's comments that You can't collect unemployment benefits because you quit your job to join a strike" and "We will manage this plant regardless of how many of you lost your jobs due to a strike" were not specifically alleged to violate the Act because they failed accurately to inform employees of their re- placement rights in the event of an economic strike. Additionally, this issue was not fully litigated, and the judge's findings , on these particular statements were limited to whether "Boag's speeches threatened plant closure in violation of Section 8(a)(1) of the Act." Cf, Kelly-Goodwin Hardwood Co., above. ATLANTIC FOREST PRODUCTS 863 and cares nothing about our ; future- or ,-the future of this community. The real question which should be on your mind is if you should vote for the union , will it help you or hurt you? We have tried to run a good plant. We have tried to put in good ben- efits for you and pay better wages. We are constantly trying to improve our plant to make your job as good as possible. We intend to keep on improving our plant , our wages and fringe benefits whenever and wherever we can. However, we will not let any ridiculous union demands for more money or anything else put us out of business. We do not intend to let any union or anyone else force us to put your jobs in danger and if the union calls you out on strike to try and force us to do some- thing which we think would hurt our business and affect your jobs, then we'll simply face up to a strike and get people in here who want to do the work or close the plant down if it can't be run efficiently. I repeat this will only be done if it can't be run efficiently. The judge found that "a listener would necessari- ly conclude that wages could stay the same or go down only if [the] Respondent in bargaining from scratch proposed freezing or reducing wages and refused to agree to any increase." In light of the withheld 1 January wage increase, the judge con- cluded Boag's statement threatened employees with loss of wages and benefits they otherwise would have received, in addition to threatening plant clo- sure. We first address Boag's alleged plant closure threat. In finding Boag threatened plant closure, the judge admitted the remarks contained "much ambiguity," but found them unlawful because of Boag's specific references to Fulton's, speech and the Respondent's "past experience", with unions. We found above, however, Fulton's speech con- tained mere partisan opinion, as the General Coun- sel failed adequately to contest the factual accuracy of the parent corporation's "experiences" with its unions . Boag's description of his own "sad feel- ings" at seeing the looks of despair of the people who lost their jobs because of plant shutdowns, his comment about the impact of "excessively high wage scales" on continued operation, and his refer- ence to past union experiences are similarly within the realm of legitimate argument. See A. J. Schmidt Co., 269 NLRB 579, 582 (1984) (statement by em- ployer's president if the union demanded high wages it could not afford to pay and would have to phase out found to be "more a legitimate predic- tion than an unlawful threat."); 'Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986) (employer's fig- uros' Which""graphically depicted [its] poor finan- cial situation" found lawful where premised on "undisputed, objective economic fact"). Finally, we turn to Boag's alleged threats of lost wages and benefits. As noted, the judge found, and we agree, that Supervisor Harris' statements in the context of the . withheld wage increase violated Section 8(a)(1) because of the "conflicting signals" given employees on the motivation behind postpon- ing the wages. The judge applied the same analysis to Boag's comments on loss of wages and benefits, finding that the statement's "conflicting signals" threatened employees by focusing on Boag's state- ments that "wages could stay the same or go down only if Respondent in bargaining from scratch pro- posed freezing or reducing wages and refused to agree to any incrase [sic]." Contrary to the judge, we cannot find Boag's statement, when placed in context, that "[i]n bar- gaining, so far as we are concerned, everything starts from scratch and even the benefits and wages you now have are bargainable" is unlawful. An employer is entitled under Section 8(c) to point out that benefits are negotiable. See, e.g., Ludwig Motor Corp., 222 NLRB 635 (1976). Bargaining may start from "scratch" and employees may be so informed, provided the employer's statements to its employ- ees are not made in a coercive context. See, e.g., Host International, 195 NLRB 348 (1972); Harvey's Resort Hotel, 271 NLRB 306 fn. 2 (1984). We find that Boag's statements constituted noth- ing more than a partisan account of the possible re- sults of collective bargaining and merely informed employees of the collective-bargaining processes' economic realities. As the judge found, Boag told employees that they would not "automatically" get a pay raise with a union because neither side had to agree to the other's proposals, that all benefits were negotiable and the Union might trade benefits to obtain a dues-checkoff provision, that "bargaining starts from scratch and even the benefits and wages" currently enjoyed were negotiable, and, fi- nally, that bargaining is "no guarantee," as wages "might go up or down or 'stay the same." Boag then told employees, however, that the Company "would bargain in good faith" if the Union won the election,32 but would not allow ' itself to be "pushed around." Boag told employees that the Respondent had tried to run a "good plant" with "good benefits" and "better wages"' and was con- stantly trying to improve. Such comments consti- tute protected speech. Accordingly, we dismiss 32 See, e.g., Ludwig Motors Corp., 222 NLRB 635 (such assurance's presence is a factor in evaluating the context surrounding such state- ments). 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that portion of the complaint alleging Boag's speech violated Section 8(a)(1). Having affirmed the judge's findings that the Re- spondent violated Section 8(a)(1) by unlawfully withholding the January wage increase, by interro- gating David Norfleet, and by harassing Joe Carr, we shall set aside the first election and direct a second election. We have reversed the judge's find- ings that Fulton's, Weber's, and Boag's speeches violated Section 8(a)(1).33 Accordingly, we shall issue an Amended Conclusions of Law, a new Remedy, and a new Order and notice to employ- ees. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3: "3. By interrogating David Norfleet concerning his union activities, and harassing Joe Carr by fol- lowing him or keeping him under observation at work because of his union activities, the Respond- ent has engaged in unfair labor practices affecting commerce within the, meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. "4. By withholding a regularly scheduled wage increase because of employees' union activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act." AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility at Edenton, North Caroli- na, copies of the attached notice marked "Appen- dix."34 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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 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 election con- ducted 8 January 1981 in Case ll-RC-4938 is set aside and that a new election be held as directed below. [Direction of Second Election omitted from pub- lication.] 34 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ORDER The National Labor Relations Board orders that the Respondent, Atlantic Forest Products, Inc., Edenton, North Carolina, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about union support or activities. (b) Harassing employees by following them or keeping them under observation at work because of their union activities. (c) Withholding regularly scheduled wage in- creases because of employees' union activities. (d) In any like or related matter interfering with, restraining, or coercing employees in the exercise 33 We therefore sustain only those objections which correspond to our unfair labor practice findings 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. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT harass you by following you or keeping you under observation at work because of your union activities. WE WILL NOT withhold regularly scheduled wage increases because of your union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. ATLANTIC FOREST PRODUCTS, INC. ATLANTIC FOREST PRODIJCTS George Carson II, Esq., for the General Counsel. Robert A. Vahos and Margie Ann Toy, Esqs, of Raleigh, North Carolina, for the Respondent Employer. Fred .Lawson, of New York, New York, for the Charg- ing Party Petitioner. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge The charge in Case 11-CA-9951 was filed by Local 20408, United Warehouse Industrial and Affiliated Trades Em- ployees Union (Union) on June 18, 1981. The complaint issued August 5, 1981. In its answer Respondent denied commission of any unfair labor practices. In Case I1-RC-4938 an election was conducted on January 8, 1981, pursuant to a Stipulation for Certifica- tion upon Consent Election in a unit of Respondent's production and maintenance employees. The election re- sulted in a vote of 61 for the Petitioner, 113 against, and 5 challenged ballots. The Petitioner filed timely objec- tions to conduct affecting the results of the election, and on February 13, 1981, the Acting Regional Director issued his Report on Objections recommending that cer- tain objections be overruled and that the remainder be resolved on the basis of record testimony. Thereafter, on July 14, 1981, the Board issued a Decision and Order adopting the Acting Regional Director's findings and recommendations On August 7, 1981, the Regional Di- rector issued a notice of hearing and order consolidating the objections with the complaint in Case 11-CA-9951 for purposes of hearing, rulings, and decision by an ad- ministrative law judge. A hearing in the consolidated cases was held before me in Elizabeth City, North Carolina, on May 11, 1982. At the hearing, the General Counsel's motion to amend paragraphs 8(d) and (f) of the complaint was granted. The Petitioner offered no independent evidence in sup- port of the objections and indicated that it would not pursue any objections to the election other than those coextensive with the allegations of the complaint. All other objections were dismissed. At the conclusion of the hearing, Respondent moved to dismiss the complaint and objections. Ruling on Respondent's motion was deferred for the written decision. The parties waived oral argu- ment and were given leave to file briefs which have been received from the General Counsel and Respondent. The issues in this case are whether Respondent violat- ed Section 8(a)(1) of the Act and engaged in conduct af- fecting the results of the election by withholding a regu- larly scheduled wage increase before the election, giving instructions to employees to remove union buttons, more closely watching an employee while at work, threatening reprisals if the Union won the election, and questioning employees about their union sentiments. On the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT 865 Respondent, a Delaware corporation, has a facility lo- cated at Edenton, North Carolina, where it engages in timbering and the manufacture of cedar wood products. During a representative 12-month period, Respondent shipped goods valued in excess of $50,000 to points di- rectly outside the State of North Carolina and received goods and materials valued in excess of $50,000 directly from points outside that State. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Withholding of the January 1 increase Before January 1, 1981, for at least several years Re- spondent had followed the practice of giving increases twice a year, on January 1 and July 1. On January 1, 1981, Respondent did not give its employees a general increase. Word that the increase would not be given first came in the following item in Respondent's employee newsletter which was mailed to all employees on De- cember 18, 1980: DELA YIN JANUARY INCREASE Many of you have asked what the company is going to do about a pay raise in January. I regret to notify you that the January adjustments in wage rates and benefits will have to be postponed for all employees involved in the pending NLRB Election. This delay is required to avoid the appearance of vole-buying by the company in view of the fact that the NLRB will hold an election on January 8. Our counsel has advised us that wage increases at this time might be considered to be an unfair labor practice and that the company should not take this risk. As you know, AFP is paying, and always has paid, above the best rates for this area With or without a union, we intend to follow this policy. There has never been a need for any person from the outside to put pressure on us to pay the best rates we can. Without a union, we are in a position to adjust rates as conditions required. You all know that we adjust rates twice a year, as we are able, and as it is needed. Under union contracts, wage rates are fixed, usually for periods of one year-sometimes longer Normally, during the period of negotiations with the union all wage rates and benefits are frozen at the existing level. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To sum up, in view of the election on January 8th, we cannot say what increase there will be. I hope each of you will vote no, on January 8th so we can once again deal with each other free of all rules. Also in December Supervisor Tim Briggs called to- gether the employees in his department and spoke to them about the Union. Employees asked him about the raise, and, Briggs replied that Respondent really could not do anything until all the union "stuff" was over. When Supervisor Mike Harris told Erie Downing that there would not be a wage, increase, Downing asked for the reason, and Harris replied, "Because of the union campaign that was going on, you know, during the cam- paign, no raises or anything were supposed to be given out." Supervisors Richard Dixon, Ted Wright, and Mack Jones told David Norfleet that Respondent could not give them the raise "because that would be a sort of a bribe, the union might look at it as a bribery, saying that they might give us too much or, they would be saying they would be buying us for us to vote against the union, and that is why they couldn't give us the raise." Supervisor Mike Harris told the maintenance depart- ment employees that the would not get the raise "be- cause of the union campaign."' Shortly after the election, Respondent granted a gener- al increase retroactive to January 1. The record does not establish whether the amount of the increase had been determined before the December 18 notice to employees. However, a general percentage figure for budgetary pur- poses had been established at that time. Joe Carr also started to wear a union button at the same time. When Dixon came to his office and noticed Carr's button, he asked another employee to leave, closed the door, and said, "I am going to stand here and watch you take that button off." Carr asked the reason, and Dixon replied, "We are having union campaign going on here." Carr said that he realized that, and Dixon said, "Well I want you to take the button off." Carr then took the button off. About 45 minutes later Plant Manager Weber came to Carr's office and in- formed him that he could wear the button.2 At the time of the election campaign, Respondent's employee handbook provided as follows with respect to solicitation: AFP follows a broad no solicitation policy. This means that posting of handbills or distribution or promotional material in work areas at any time or in non-working areas on company time will not be permitted. Further, in order to be fair to all con- cerned we cannot allow any employee while on company time to solicit any type of business in work areas. The specific exception to this policy will be sales of candy, raffle tickets, etc., for churches, charitable organizations, etc., by employ- ees on their time in non-working areas only with the prior written approval of the General Manager. Anyone not employed by AFP will not be al- lowed to enter company property to distribute ma- terials, solicit, collect, or engage in any similar ac- tivity. 2. Restrictions on solicitation After notices of the election were posted, employee Willie Davis started to wear a union button at work. Plant Manager Bruce Weber approached him, told him that he was not allowed to wear the button, and said that he would appreciate it if Davis would take it off. About 30 to 45 minutes later, Weber informed Davis that he had made a mistake and that Davis could wear the button. Davis resumed wearing the button. David Norfleet also began to wear a button to work at the same time. Supervisor Richard Dixon approached him and. told him "I have to ask you to pull your button off." Norfleet asked why, and Dixon replied, "I can't pay you to wear this button because there is a campaign -going on and I can't pay you for what we are against." When Norfleet responded that the button was not doing anything to anybody, Dixon replied, "Well, I asked Joe [Carr] to take his off, and Joe took his off." Norfleet asked if Dixon was sure ,that Can had taken his button off, and Dixon replied affirmatively. Norfleet then re- moved his button. Two or three, hours later Dixon returned to Norfleet and told him that he had made a mistake and that Nor- fleet could put, his button back on. Norfleet did not do so at that time.. I These findings are based on the uncontradicted testimony of Erie Downing, Willie Davis, David Norfleet , and Joe Carr. Downing's name appears as Downie in the transcript. Apart from the incidents described above relating to the wearing of union buttons the only other evidence about enforcement of the rule was the testimony of Joe Carr that employees knew that union solicitation was permitted only during lunch periods and breaks. 3. Harassment of Can at work Joe Carr was employed as a purchasing agent. Carr wore a union button at work, and it was generally known that he supported the Union . Most of his work was done within an office area assigned to him in the maintenance department, but twice a day he went through production areas to carry paperwork to the front office. On his way to the front office he often checked the supply of items he ordered and occasionally visited production areas to inventory supplies. While Carr was walking through production areas, he occasion- ally spoke with other employees who work there.3 According to Carr, before the election campaign no one in management had ever said anything to him about talking to other employees ., However, he 'testified that after the union campaign began things changed: He was reported for going to the men's room too often , 'spending 2 Davis, Norfleet, and Carr testified to these events without contradic- tion. 2 There is testimony that the route which Carr used to going to and from the front office was not the most direct route between his office and the front office However, Carr's testimony is uncontradicted that he used that route before as well as after the union campaign began ATLANTIC FOREST PRODUCTS 867 too much time there, and for pulling people away from their jobs to talk to them, although he denied that he did so. He testified that if employees called him, he would go to their work stations and talk with them, usually to answer questions. He denied that he talked to employees about the Union while they were working. According to Carr, between Christmas 1980 and the day of the election he noticed that he was being watched by Supervisors Overton and Lipscomb as he went through the production area to the front office. On one occasion, as he walked through he noticed Overton and Lipscomb standing at an elevated office window, which overlooked the processing area, looking down at him.4 On another occasion, Lipscomb met him at the entrance to the production area and asked what was happening. Another time Supervisor Wright met him at the entrance and asked him what he wanted. When he told Wright that he wanted to get a count on the strapping in the de- partment, Wright replied that it was all right. On other occasions, he observed Supervisor Dixon watching him in the saw mill area. Carr testified that his habits with respect to talking with other employees in the plant did not change after the preelection campaign began and that he engaged in no more talk than before the campaign began. He also testified that when he spoke with employees at their work stations, the conversations were work related and the other employees continued to work. David Norfleet testified that on one occasion Supervi- sors Wright and Dixon called him aside and told him that they did not want him to think that they were "picking on" him, but that they heard he had been going to Carr's office a lot and that they wanted him to stay away from Carr unless somebody sent him there. Ac- cording to Norfleet, he replied that he did not go to Carr's office unless somebody sent him and that it seemed to him that they were picking on him because he was for the Union. To rebut Carr and Norfleet, Respondent presented the testimony of Plant Manager Weber and Supervisors Wright, Dixon, Jones, Overton, and Lipscomb. All denied that supervisors were instructed to watch Carr or any other employees more closely because of their union activities,5 and Wright and Dixon denied that the inci- dent described by Norfleet occurred. Their direct testi- mony in this regard was adduced largely by leading questions and in a number of instances their denials went to whether they recalled the events at issue rather than whether those events occurred. More important, with re- spect to a suggested cause for watching employees more closely during this period, their testimony was not con- sistent. Thus, Weber testified that during the course of the campaign he became concerned that production de- creased radically from 15 to 20 percent and that he in- structed supervisors to take a look at production prob- Carr's attention was called to them by another employee who told him he was being watched 8 Most also testified that supervisors were instructed not to engage in surveillance of employee union activities, although Dixon recalled no in- struction to that effect There is no contention that they engaged in sur- veillance in the sense in which that term is customarily used in connec- tion with the Act lems, which included spending excessive time in the rest- rooms, people talking on working time at their work sta- tions, and nonperformance of work. He testified that he told his supervisors to watch employees on the job, which was part of their normal supervisory duties, and to maintain a "tight ship." According to Weber, he did not know whether the employees doing most of the talk- ing were the proponents of the Union, and supervision was watching no one in particular but merely for prob- lems. Wright, however, testified that after the campaign started to his recollection there was no more talking among employees than previously and that Weber did not discuss with the supervisors the reasons for a de- crease in production. Dixon testified that conversation did not increase "that much" before the election and that the slowdown in production had nothing to do with talk- ing on the job or the union campaign. Jones and Overton also did not recall Weber telling the supervisors that pro- duction was down because employees were talking more than usual, but Overton testified that he had reported to Weber and to Harris, who was Carr's supervisor, that Carr was talking to employees in Overton's department on company time. He also testified that he spoke to the employees in his department, but not to Carr, about talk- ing while they worked. Unlike the other supervisors, Lipscomb initially cor- roborated Weber, at least in part, testifying that Weber told the supervisors to be alert to people stopping work and having little gatherings to talk about anything during the union campaign. Lipscomb testified that he did not remember whether he mentioned to Weber an incident involving Carr or that Carr had been involved in a lot of the gatherings at the time Weber alerted the supervisors to watch for employee gatherings. However, he also tes- tified that he knew that Carr had been spoken to for walking, through the processing area and speaking to others by someone higher up in management than Lips- comb during the union campaign and that the word was around the mill that Carr was talking to employees too much during the union campaign. The testimony of Weber and Lipscomb indicates that there was a problem with excessive talking during the preelection period, and Lipscomb's testimony indicates that it focused on Carr. Their testimony would indicate that all employees, and particularly Carr, were watched more closely for talking in order to keep a "tight ship." Their testimony would thus support Carr's testimony that he was being watched more closely, albeit for cause. Yet the testimony of Wright, Dixon, Jones, and Overton was that there was no problem with talking in the plant, and save for one incident described by Overton, no occa- sion to speak with Carr about it or to watch him more closely because of excessive talking during the preelec- tion period. In these circumstances, I credit Carr that he was watched more closely during the preelection period than previously and reject the testimony of Weber and Lips- comb that the cause for watching him was Carr's exces- sive talking during that period. I also credit Norfleet that 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was told by Wright and Dixon to stay away from Carr's office. - 4. Fulton's speech On January 5, 1981, Respondent's then president, Sandy Fulton, gave speeches to the assembled employees on the first and second shifts at the plant. Fulton spoke from notes, and his speeches were tape-recorded and transcribed.6 Fulton started by explaining that he had responsibil- ities to the shareholders of Respondent to ensure that the Company' was profitable and to the employees for-their security. He reviewed briefly the structure of the Com- pany and its parent company, MacMillan Bloedel, and stated that their objectives were to increase productivity and products extracted from raw materials, and to in- crease and expand Respondent's timber or raw,material base. Fulton continued: To support these objectives we need good prof- its. The shareholders of this company need some return for their investment. Our operations must be profitable; they must be successful. Atlantic Forest Products must be successful, and it must be profita- ble. Before I review the past performance of AFP and what I see in the future for all of us, I want to make a couple of points about MacMillan Bloedel and unions. MacMillan Bloedel is not an anti-union company. If anyone thinks that, they're wrong. We have an excellent working relationship with lots of our employees. We have an excellent working relationship with lots of our employees. We have lots of successful, very profitable operations around the world. I look at this as one of our successful operations'. We might not have been profitable this year or last year, sorry, but we are going to make it profitable. However, we've also had some bad experiences and I want to relay a couple of those things to you, 6 The transcript of Fulton's speech to first-shift employees was re- ceived in evidence, and I have based the findings which follow on it. First-shift employees Downing, Davis, Norfleet, and Carr also testified to statementsmade by Fulton Erie Downing testified that in the course of the speech Fulton said that Respondent did not like or believe in unions and if necessary would have to close the plant down if there was a union He also testified that during the speech Fulton mentioned five plants which had closed down and at the end of the speech said he wanted to remind the employees that all the plants which closed were unionized Davis testified that Fulton talked about how many places that were closed'or cut back because of unionization and said "you wouldn't want this to happen to you." Norfleet testified that Fulton said with reference to closed down plants that he wanted to remind the employees that all were unionized and that "we don't want this to happen there." Down- ing's testimony, which clearly goes beyond the speech transcript, was not corroborated by the other employees` I have not credited it The remain- ing testimony, while deviating from the transcript, seems clearly to re- flect the normal variations in perceiving and recalling words spoken some time in the past and to constitute paraphrases or impressions of what Fulton said. I find that it is sufficiently close to the words and tone reflected in the transcript to conclude that the transcript accurately sets forth what Fulton said Although there are indications that at places the transcriber was unable to understand portions of the tape from which transcript was made, none of those omissions appear at places where by context or position'the portions of the speech here at issue might have been modified or amplified just to make a couple of points about profitability and success. And these are our operations, no one else but MacMillan Bloedels'. Vancouver Plywood in Vancouver, British Co- lumbia, a very, large plywood plant. It used to employ about 1,200 people, it was unprofitable, and we couldn't make it profitable, it now employs about 350. We are not spending any more money at Vancouver Plywood. We're not keeping the equip- ment in good shape anymore. We can't be success- ful' there. Eventually that . . . I fully expect that operation to close. That plant was unionized. MacMillan-Rothesay, St. John, New Brunswick, a very large pulp mill, and its unionized. Last year, we had a seven month strike. Seven months the plant was down. The union and our employees fi- nally accepted after seven months essentially the same offer we made before they went on strike. They could have gotten that without being out of work for seven months . . . without that plant being shut down for seven months. Incidently [sic] work stoppages cost our company, MacMillan Bloe- del, something like 29 million dollars in 1979. There's a real tragedy there. The company lost the money, the employees lost the work and the pay they could have earned by working. No one gained from that. Frankly in some of those operations we're concerned about our' investments, and we should be. The employees should be concerned about their future, and they should be. That's 29 million dollars. Think of it for a minute. 29 million dollars that we now don't have to buy more trees for this operation. . . . to spend in upgrading' our facilities, buying new equipment, building new plants, employing more people . . . that's slot of money, and it's needless. In Pine Hill, Albania, [sic] we had a very large particle board plant there. It was unprofitable. We couldn't find a way to make money. We couldn't find a way to make money. We couldn't be success- ful. Its unionized. We shut that plant down. We had 12 million dollars invested there. We had something like 250 people employed . . . much the same size as Atlantic Forest Products. The plant closed, its mothballed and I don't expect we will ever run it again. Red Band, New West Minister in British Colum- bia, one of the largest shingle mills in the world. That plant was unionized. It went on strike. It was on strike for 2 years. 2 years that plant was on strike. It's gone now; we've torn it down. Where Red Band was there's nothing but a vacant lot. The plants gone, the people have gone. I don't know where they have gone, but they're gone. Why did it go on strike? The union was making demands on us that neither we, MacMillan Bloedel, nor the Forest Products Industry could afford to meet. Totally un- reasonable demands. That plant was unionized. I don't think any of you have seen a plant that's been on strike for two years or been down for two years. You watch it rusting away. In our operations ATLANTIC FOREST, PRODUCTS 869 that sell the products from Atlantic Forest Prod- ucts, some of those are not successful, not profita- ble. We closed our warehouse in Ashtabula, Ohio. We closed our warehouse in Camden, New Jersey. Couldn't make money. We have a couple other op- erations that aren't doing well. One in Baltimore, Maryland. One in Tampa, Florida. The reason we can't make money is-well a couple of things. One, we're operating with Long Shoreman [sic] Unions. Extremely high labor rates, and the productivity is very low .... the people don't want to work. It severly [sic] restricts our ability to make money We're going to close those operations or we're going to move them. But, we can't keep them. Incidently, [sic] I don't want you to be fooled about the wages and benefits you hear other people have in the country because its true. I talked about some operations and mentioned locations. Exces- sively high pay scales. You have a job, they don't. I could go on and on. There are many other op- erations that we've had not very good success with. I could go onabout other companies that haven't had good success with their operations and tell you what has utimately [sic] happened to them. The point I'm trying to make, and I hope I make it, is that our operations, all of our operations, must be successful and they, must be profitable, AFP includ- ed. Being unionized is no guarantee that we will be successful. You should know now that we will never grant any unreasonable demand made ,upon us by anybody-union or otherwise-if it makes this plant or any of our other plants uncompetitive. To do so is absolutely suicidal for that operation. Fulton then spoke about the Company's performance in 1980, pointing out that they had not done well and did not expect that they would make any money at all for the year because of bad weather, equipment problems, interest rates, and product prices. He pointed out that things had improved toward the end of the year, but that Respondent had lost $250,000 between July 1 and the end of the year, despite a substantial capital investment. Fulton said that he thought that 1981 would produce better news, pointing out that five elements were needed to be successful and profitable: good markets and cus- tomers; a supply of timber: a good manufacturing facili- ty; money for investment and inventory; and "most im- portantly of all, a very stable work force . . . particular- ly well trained, highly skilled." After reviewing the status of each element, Fulton said: I want to impress upon you what we don't want to do. MacMillan Bloedel does not want to do any- thing to encourage any of you to leave it. That's why we pay competitive wage rates and benefits. That's why we kept everybody employed when we didn't have any logs. When we couldn't sell our products because no one would buy them, that's why we built inventory. To keep you people here, who are valuable employees, we don't want to lose you. ;When you weren't making any money, I mean, look back over the last six months-we're losing money, we kept putting more money into this oper- ation. We didn't give up. MacMillan Bloedel has done this and I'm a part of it (?) and frankly, we're optimistic about Atlantic Forest Products and the future of this operation. We have faith in this oper- ation, in you, our employees. We've had our difficulties, we've made mistakes, I think we're correcting them, I think w`e're work- ing at continuing to make progress. (?) We're com- mitted to that program. If we don't correct our mis- takes or provide a good wage for you, you're gonna leave us, and, we don't want that to happen. I think it's your turn now. I think it's your turn to convince MacMillan Bloedel that you have faith in the com- pany and that MacMillan Bloedel should continue to have a very positive attitude toward Atlantic Forest Products and its employees. MacMillan Bloedel is committed, and it should be obvious to all of you now, I want you to show your commitment on Thursday by voting no to ' an un- known and the uncertainty of an unknown union. I want to 'look forward to Thursday. I want to look forward to a profitable operation. We spent alot of time and money over the last period talking to you about the union. Trying to make sure that we could tell you everything we know about this (?) to help you not make a mistake. Personally I'm tired of losing (?) Lose time, lose production, lose profit, lose lumber we could make. I'm tired of losing all of that. I think you're prob- ably tired of all the distractions. Make no mistake. I want you to vote no on Janu- ary 8th and I want all of us to get back to our job. Our job is to make Atlantic Forest Products a suc- cessful, profitable operation. That's our job (?) I would like to be here for the election on 'Thurs- day, but I can't. I have to go to Vancouver. All the senior managers in MacMillan Bloedel from all over the world are meeting there to discuss all of our op- erations and the future of those operations. ,I will be asked to give a report on Atlantic Forest Products. Nothing would please me more than to include in my report that the majority of you, our employees, voted no to keep this New York union out of our operation. I want to report that there's no question about Atlantic Forest Prod- ucts having astable, responsible work force. Thank you for your time. 5. The alleged interrogation of employees On the day before the representation election, leadman Mack Jones called Norfleet aside to speak with him pri- vately. Jones said, "Dave, I am not supposed to talk to you but just between me and you . . . . Well, how are you going to vote?" Norfleet told him that he was going to vote yes.7 ' Jones testified that he did not recall confronting Norfleet on the day before the election and asking him how he was going to vote, and that Continued 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Speeches by Bruce Weber and Tom Boag On, January 7 Bruce Weber, Respondent's general manager, and Tom Boag,B industrial relations manager for Respondent's parent company, addressed all the em- ployees at a meeting. Weber held up a sample ballot and described its layout. In the course of his explanation, he said the following:9 Over on the left side is a box marked "YES". If you are willing to pay union dues and fees; if you are ready to turn all of your affairs over to the union bosses and do whatever they say; if you want to take a chance on union troubles and strikes and lost jobs, then you make an "X" in the YES BOX on the left side. I don't believe many of our employees will be voting yes. Over on the right side is a box marked "NO". If you believe that you will be better off without union trouble here; if you do not want to pay dues; if you do not want to give up your personal freedom; if you do not want to take a chance on strikes and lost paychecks and lost jobs; you will make an "X" in the NO box. Most of our employees at one time or another have already indicated they plan to vote NO. Boag's speech followed Weber's. In the course of it, he said the following: There have been, many, many rumors and out- right lies told by the union during this campaign. Norfleet had made his prounion sentiments known publicly in the plant He testified that on the day before the election he had no encounter at all with Norfleet regarding how he might cast his ballot in the election. However, he also testified that as a supervisor he was asked to identify employees who were definitely for the Union, for Respondent, or unde- cided, and that he spoke to other employees after films were shown and speeches given by Respondent to see if they felt differently about the Union after having seen a film or heard a speech. Thus, despite his denial that he questioned Norfleet and his testimony that he knew where Nor- fleet stood from Norfleet's behavior, it appears from his testimony that he engaged in an ongoing effort to ascertain the effects of Respondent's preelection campaign on individual employees In these circumstances, the questioning of Norfleet the day before the election was not implausi- ble and indeed falls within the pattern of the conduct in which Jones ad- mittedly engaged. I have credited Norfleet 8 Boag's name is misspelled as Bohe at places in the record 9 These findings are based on a copy of a speech which Weber testified that he read verbatim Employees Downing and Carr also testified re- garding this speech Downing testified that during the speech Weber told the employees to "vote the right way, and if you vote the right way you won't have to worry about losing your jobs " He also testified that Weber said that if the Union won the election there would be negotia- tions which could last for 3 to 4 months. Downing further testified that Weber said "that we might lose our jobs the next day if the election was won" Carr testified that Weber said, "If we vote the right way, we wouldn't have to worry about our jobs" while pointing to the box on the ballot He testified that Weber also said, "If the Union should come in, everything would hinge on negotiations; everything would go back to scratch as far as the benefits were concerned." He testified further that Weber said, "We would lose our jobs `the next day"' To the extent that their testimony deviates from the written speech which Weber testified that he read, I do not credit it Downing's testimony was unclear in places and demonstrated an uncertain memory Carr rather clearly attrib- uted to Weber statements made by Boag about bargaining from scratch Neither mentioned the statement about losing their jobs the next day without some prompting I have credited Weber They are even contending that what Mr. Fulton told you was not true. This is how ridiculous their allegations can be. There is no way Mr. Fulton would ever tell you anything that could not be vali- dated. To suggest otherwise is questioning the in- tegrity of a senior official of this company. I think we have shown you that the company has told you the truth and demonstrated our sincerity. Most of our employees are too smart to fall for the union's lies. Most of our employees know that our wages and benefits are the best in the country and among the best in this area of the United States. Another theme the union has used to try to fool you is that if you vote for the union you'll auto- matically get a pay raise. This is absolutely not true and I want to make this very clear. The law says that neither the company nor the union has to agree on anything the other side proposes. We do not have to agree to anything that is not economically sound or in the best interest of this company and the employees. We hope that we have a very good year next year. This plant has to stand on its own. It has to make a profit in order to justify its continuance in Edenton. I can guarantee you this. We cannot and will not, increase our existing financial problems and production costs if that means jeopardizing the future of this plant. Don't get caught up in the union's statements that this company can pay the same wages here as elsewhere. Excessively high wage scales can mean the elimination of jobs com- pletely as has been identified by Mr. Fulton, in re- spect to the Red Band shingle mill, the particle- board plant at Pine Hill and the Camden, N.J. warehouse. I was personally involved in the Red Band closure. I can tell you it is a very sad feeling walking through a plant where the machinery is rusting away. It is even sadder to see the plant bull- dozed into the ground. When you look into the eyes of people who have worked 30 or 40 years at an operation and see the look of despair when they realize their job is no longer there. I can tell you I don't want to see it again. There is another matter' that I want to perfectly clear. I want everyone to know in advance that if the union is voted in here and we cannot agree with the union's demands there could be a strike that could hurt everyone. Where is your job security then? Job security is created by employees and man- agement working hard, not by union-called strikes. If the union called a strike you could certainly be involved. You can't expect this union to pay you any strike benefits. Atlantic Forest Productions would not pay you if you were not working. You can't collect unemployment benefits because you quit your job to join a strike. Many employees who have been on strike have waited as long as three or more years before they ever got a chance to come back to work. Don't let that happen to you. ATLANTIC FOREST PRODUCTS 871 As you know, we have unions , in some, of our other plant locations. Our past experience tells us that if this union got in here it would be most diffi- cult to continue to improve productivity and e€fi ciency in this plant. This New York union repre- sents a small number of truck drivers in the New York area. So far as we can tell, they know abso- lutely nothing about operating a lumber mill or cut- ting trees. Do you want them to interfere with your job? As expressed to you before, if this union were to get in here, we will be tough. We will never give in to a union-called strike. We will manage this plant regardless of what the union did and regardless of how many of you lost your jobs due to a strike. It is our right and duty to manage this company and to produce lumber products. The real decision you are going to make in the election is whether you are going to retain your confidence in the management of this company and yourself to build a financially strong company that can provide long-term job security with good wages and benefits, or whether you are going to risk your steady paycheck on what some New York union supporter says you might get. Remember, the success of Atlantic Forest Products and your suc- cess are one and the same. You will make, it togeth- er or you will sink together. When you vote Thursday, remember that with- out this union you have a steady job and a steady paycheck. Your job security. What you'llbe voting on is not whether you like the sound of fancy union talk but whether you are willing to risk your steady job and paycheck and the welfare of your family and this community on empty promises. Think about it-think about it long and hard. A No vote is a vote for yourself, your family, your future, your community and your job. In bargaining, all wages and benefits are negotia- ble. The union might be willing to trade a lot of other things off for check-off, especially if we were to agree that it would run for a full year and you couldn't change your mind or cancel it during that time. In bargaining, so far as we are concerned, ev- erything starts from scratch and even the benefits and wages you now have are bargaining, things might get better or worse. Wages might go up or down or stay the same. If the union were to win the election, we will bargain in good faith, but I can tell you that we are not going to be pushed around by some New York union who knows nothing about our business and cares nothing about our future or the future of this community. The real question' which should be on your mind is if you should vote for the union, will it help you or hurt you? We have tried to run a good plant. We have tried to put in good benefits for you and pay better wages. We are constantly trying to improve our plant to make your job as good as possible. We intend to keep on improving our plant, our wages and fringe benefits whenever and wherever we can. However, we will not let any ridiculous union de- rnands for more money or, anything else put us out of business. We do not intend to let any union or anyone else force us to put your job in danger and if the union calls you out on strike to try and force us to do something which we think would hurt our business and affect your jobs, then we'll simply face up to a strike and get people in here who want to do the work or close the plant down if it can't be run efficiently. I repeat this will only be done if it can't be run efficiently. B. Concluding Findings j. The withheld increase The complaint alleges that Respondent withheld the regularly scheduled wage increase because of the em- ployees' union activities. The General Counsel contends that Respondent did not merely seek to avoid the ap- pearance of interference with the election, but as shown by statements and speeches of supervisors, sought to place responsibility for postponement of the increase on the Union and failed to 'assure employees that Respond- ent would continue to follow its past wage policies with or without a union. Respondent contends' that its actions with respect to the wage increase were indistinguishable from those found lawful by the Board in Uarco, Inc., 169 NLRB 1153 (1968). The first two paragraphs of the notice printed in the December 18 employees newsletter are virtually identical to the ' similar portions of the notice to employees in Uarco. While the remainder differs, in the third para- graph Respondent assured employees that with or with- out a union it intended to follow the policy of paying above the best rates for the area. However, in the next two paragraphs Respondent contrasted its freedom with- out a union to adjust rates ' as conditions required with what is described as the normal freezing of wages and benefits during contract negotiations. Thus, the assurance that Respondent' would continue to follow the same wage policy with or without a union was weakened by the suggestion that there would be an immediate increase without a union by a delay for an indefinite period of ne- gotiations for an uncertain increase with a union. Unlike Uarco, in which unambiguous assurances that wage policy would remain the same with or without a union were given following the initial ' announcement of deferral of the increase,' here that assurance was not re- peated. To the contrary, Boag's statement on the day before the election that it was untrue that employees would automatically receive an increase coupled with the statement that bargaining would 'start from scratch conveyed that wage policy in fact `would be different with a union than without. Moreover; when employees asked supervisors about the raise , their responses put the onus for deferral on the Union. 'Briggs said that no in- crease could be given until the union "stuff' was over, Harris blamed deferral on the union campaign, Dixon, Wright, and Jones attributed deferral on the union cam- paign, and Dixon, Wright, and Jones attributed deferral to what the Union ' might do or say if the raise was given. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the evenhanded impression created by the opening paragraphs of the December 18 notice was repu- diated by the supervisors' subsequent statements and Boag's preelection speech. I find further that Respondent after December 18 sought to shift the onus for postpone- ment of the wage increase to the Union and to communi- cate that its wage policy would depend on the outcome of the election. Accordingly, I conclude Respondent's withholding of the regularly scheduled wage increase violated Section 8(a)(1) of the Act.lo 2. Restrictions on solicitation The complaint alleges that Respondent, through Weber and Dixon on January 6 or 7, 1981, violated Sec- tion 8(a)(1) by promulgating and maintaining a no-solici- tation rule which proscribed solicitation in nonworking areas during nonworking time and by instructing em- ployees,to remove union insignia. The General Counsel contends that these allegations are supported by the facts found above, that Weber and Dixon instructed Davis, Norfleet, and Carr to remove union buttons while at work and by the written rule which appears in the em- ployees' handbook. Respondent contends that the prompt rescission of the instruction to remove union buttons cured any possible violation and that the lawfulness of the no-solicitation rule was not properly raised by the complaint or litigated at the hearing. ,With respect to the written no-solicitation rule, during the hearing the General Counsel stated that he did not contend that there was an oral promulgation of a no-so- licitation rule by Weber, but that he was responsible for the rule in the employee handbook and that Dixon's statements in conjunction with his instructions to em- ployees to remove their union buttons constitute promul- gation and enforcement of the rule in the handbook. Re- spondent objected that it had no notice that the General Counsel claimed that the rule in the handbook was un- lawful, and the, General Counsel conceded that the com- plaint was not originally intended to allege that the rule in the handbook was unlawful and that he had not seen it until the morning of the hearing. At that point I 'ex- pressed the view that it was a little late to be placing the lawfulness of the rule at issue, and no further evidence was received with respect to it. In these circumstances, I find that the lawfulness of the rule in the handbook was not placed in issue by the complaint. Furthermore, under the Board's decision in T.R. W, Inc., 257 NLRB 442 (1981), if the complaint had put the rule in issue Re- spondent would have had the right to present evidence to rebut the presumptive invalidity of the rule. As it did not do so and had no notice that it would be required to do so, I fmd that the lawfulness of the rule was not fully litigated and is not properly before me for decision." With respect to the instructions to employees to remove union buttons, clearly had the instructions not been rescinded they would have violated the Act. The General Counsel contends that the rescissions were insuf- ficient to neutralize the violations because they did not 10 Otisi Hospital, 222 NLRB 402 (1970), Liberty Telephone, 204 NLRB 317, 321-322 (1973) See also Dynatronzcs, 186 NLRB 978 (1970). 11 T R. W., Inc. at 443 clearly identify the wrong doing, the employees' organi- zational rights were not affirmatively recognized, and no assurances were given against recurrence of the offenses, relying on Fashion Fair, Inc., 159 NLRB 1435, 1444 (1966). The standard urged by the General Counsel has been followed in a number of cases where threats, interroga- tion, or other forms of coercion were at issue.l a Howev- er, when unlawful restrictions on in-plant solicitation have been promptly rescinded, the Board has found such violations "effectively cured" even when these condi- tions have not been met.13 Here, there is no evidence that any employees other than Davis, Norfleet, or Carr were informed of, the restriction on wearing union but- tons. Within one-half an hour to 3 hours, all three were told that the instructions were a mistake and that they could wear union buttons. This incident occurred on the day the election notice was first posted, there is no showing that any employees was precluded from wear- ing union buttons thereafter, and Carr's testimony shows that he understood that employees could engage in union activity while on break or at lunch. I fmd that the viola- tions by Weber and Dixon in instructing Davis, Norfleet, and Carr to remove their union buttons were effectively cured by the prompt rescission of the instructions and that the allegations based on them should be dismissed. 3. Harassment of Carr The complaint alleges that Respondent watched Carr more closely because of his union activities. I have cred- ited the testimony of Carr and Norfleet that Carr was watched more closely and that Norfleet was told to stay away from Carr's office. I also credit Carr that employ- ees were generally permitted to talk while working as long as they did not neglect their work, and I have re- jected the testimony of Weber and Lipscomb that Carr was watched because of excessive talking. In the absence of a credible explanation for the increased attention paid to Carr, I find that Respondent watched Carr's in-plant activities more closely during the preelection because of his known support for the Union. I find that by watching Carr more closely for that reason, Respondent violated Section 8(a)(1) of the Act.14 4. Fulton's Speech The complaint alleges that in his January 5 speech Fulton threatened the employees with plant closure. The General Counsel contends that viewed in context Ful- ton's speech conveyed the message that if the Union was voted in, Respondent would close the plant. Respondent contends that nothing in Fulton's speech rose to the level of a threat of reprisal. 12 E.g, Lake Development Management Co., 259 NLRB 791 (1981), Passavant Memorial Area Hospita4 237 NLRB 138 (1978), Intertherm, Inc, 235 NLRB 693, 699 (1978), enfd. as modified 596 F 2d 267 (8th Cir 1979) 12 Phillips Industrial Components, 216 NLRB 885 (1975) Cf Borg- Warner Corp., 234 NLRB 1283 (1978). 14 Peavey Co, 249 NLRB 853, 857 (1980), enfd. as modified 648 F 2d 460 (7th Cir 1981). ATLANTIC FOREST PRODUCTS 873 In NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969), the Supreme Court stated: Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expres- sion of "any views, arguments, 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 8(a)(1). Section 8(a)(1), in turn, prohibits interference, re- straint or coercion of employees in the exercise of their right to self-organization. Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the em- ployees to associate freely, as those rights are em- bodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the neces- sary tendency of the former, because of that rela- tionship, to pick up intended implications of the latter that might be more clearly dismissed by a more disinterested ear. In Gissel, the employer made statements that the com- pany was in precarious financial condition, that the union in all likelihood would strike, and that the probable result would be a plant shutdown. The Court found that these statements were not predictions of demonstrable economic consequences ' of unionization, but that they were threats of reprisal. In Stride-Rite Corp., 228 NLRB 224, 230-234 (1977), the employer made a number of statements about the closing of unionized plants and in- formed employees that, its lease was terminable on 30 days' notice. It pointed out, "The truth is, any company can always close a plant for economic reasons," and "If [the union] gets in and disrupts our production or in any way makes us noncompetitive so we can't sell our prod- uct, those paychecks will stop." The Board rejected the contention that these were predictions based on econom- ic fact and found that the statements were threats of re- prisal. Here, Respondent did not state explicitly that its plant would close if the Union won the election, but its state- ments about plant closings could only create in the em- ployees' minds a firm connection between past plant closings and unionization. Thus, in describing the "bad experiences" of Respondent's parent corporation, in each instance the common operative fact stated was that the plant was unionized. The suggestion was firmly planted that the same could happen at Edenton. Thus, to grant any unreasonable union demand would be "suicidal for that operation." It was now the employees' turn "to con- vince MacMillan Bloedel that you have faith in the com- pany and that MacMillan Bloedel should continue to have a very positive attitude toward Atlantic Forest Products and its employees," (emphasis added) and Fulton wanted to report "that there's no question about Atlantic Forest Products having a stable, responsible work force" when he discussed the future of the oper- ations in Vancouver after the election. The implication was clear. If employees voted for the Union, MacMillan Bloedel would not be convinced of the, employees' faith in the Company, it would not continue to have a positive attitude toward them, and stability and responsibility of the work force would be in doubt. To the interested em- ployee listening to Fulton, the conclusion to be drawn was that if the Union won, the future of the plant would be in jeopardy and the Edenton operation was likely to become the next "bad experience" of MacMillan Bloedel. I find that Fulton's speech to the employees unlawfully threatened employees with plant closure as alleged in the complaint. 1 s 5. Interrogation The complaint alleges and the General Counsel con- tends that Supervisor Mack Jones interrogated employ- ees concerning their union activities and sentiments in violation of Section 8(a)(1). Respondent contends even if interrogation occurred, it was so isolated and trivial that it should be disregarded. Norfleet's credited testimony establishes that on the day before the election Jones called him aside to ask'him how he was going to vote. Jones' own testimony indi- cates that this was not an isolated incident but was part of Jones' ongoing effort to ascertain the effects of Re- spondent's preelection campaign on employees' support for the Union. It occurred in the context of Respondent's, vigorous campaign against the Union in' the course of which Respondent otherwise violated the Act as found herein. In these circumstances,,I find that Jones' interro- gation of Norfleet violated Section 8(a)(1) of the Act.16 6. Speeches by Weber and Boag The complaint alleges that Weber and Boag threatened employees with job and benefit loss because of their union activities. The General Counsel contends Weber and Boag in their January 7 speeches repeated the threat of plant closure made by Fulton 2 days earlier and that Boag's remarks in context threatened that if the Union won Respondent in bargaining would offer reduced wages and benefits because the employees chose to be represented. Respondent contends that in context neither Weber nor Boag made any threats. In Weber's brief- remarks explaining the sample ballot he pointed to the No box and said , among other things, "If' you do not want to take a chance on strikes and lost paychecks and lost jobs; you will make an "X" in the No box." In Boag's speech, he referred to contentions by the Union that what Fulton had said was untrue and reaf- firmed the truth of Fulton's remarks . Boag stated that it was necessary for the plant to make a profit in order to justify its continuance in Edenton and that he guaranteed that Respondent would not increase existing financial problems and production problems if that meant jeopard- izing the future of the plant. Boag continued, telling em- ployees not to be caught up in union statements that the is Stride-Rite Corp., supra; Mohawk Bedding Co, 204 NLRH; 277 (1973), 216 NLRB 126 (1975). 16 American Commercial Bank, 226 NLRB 1130 (1976). 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company would pay the same wages in Edenton as else- where and that excessively high wage scales could mean the complete elimination of jobs as identified by Fulton at three of the closed plants. Boag described his own sad feelings seeing the looks of despair of the people who lost their jobs and closed that portion of his remarks by stating, "I can tell you I don't want to see it again." Boag discussed further the possibility of strikes and their affect on job security and pay. He referred to the fact that the Company had unions at some of its other locations and stated, "Our past experiences tells us that if this union got in here it would be most difficult to con- tinue to improve productively and efficiency in this plant." Boag stated that if the Union were to get in, the Company would be "tough" and would never give into a union-called strike. He portrayed the election as a choice between job security and "whether you are willing to risk your steady job and paycheck and the welfare of your family and this community on empty promises." After discussing possible outcomes of bargaining, Boag again characterized the question before the employees as whether the Union "will help you or hurt you" and re- turned to the earlier theme that Respondent would not let the Union push it around, stating that it would not let "ridiculous" union demands "put us out of business" or allow the Union to "force us to put .your jobs in danger," Boag said that if the Union struck to attempt to force the Company to do anything which it thought would hurt its business and affect employees' jobs, then Respondent could "simply face up to a strike and get people in here who want to work or close the plant down if it can't be run efficiently. I repeat this will only be done if it can't be run efficiently." A careful reading of the speeches shows that Weber's and Boag's remarks can be construed as tying the pros- pect of lost paychecks, lost jobs, and plant - closure to possible union strikes. But there is much ambiguity in their remarks, and in the context of the specific refer- ences to Fulton's speech 2 days earlier and the dire pre- diction-based on "past experience" that the Union would make it difficult to improve production and efficiency, I find that under the teaching of the Gissel case, the re- peated references to job loss and plant closure were likely to have been and were intended to be construed as threats that the plant would close if the Union were voted in. I find that Weber's and Boag's speeches threat- ened plant closure in violation of Section 8(a)(1) of the Act. Early in Boag's speech he pointed out that it was "ab- solutely not true" that employees would "automatically" get a pay raise if they voted for a union and that neither side had to agree to any proposal made by the other side. Later Boag stated that all benefits were negotiable and that the Union might be willing to trade off a lot of other things for a checkoff provision. He continued, "In bargaining so far as we are concerned, everything starts from scratch and even the benefits and wages you have now are bargainable." Boag pointed out that things might get better or worse and "wages might go up or down or stay the same." Boag also said that Respondent had tried to provide good benefits and pay better wages and intended to keep on improving wages and fringe benefits whenever it could but would not let ridiculous union demands for "more money" or anything else put it out of business. These statements at best conveyed conflicting signals. On the one hand, employees already had been told that a wage increase due them January 1 had been withheld, that Respondent would follow the same wage policy after the, election as before, and that, there would' be an -immediate increase if the Union were rejected. Boag also told them that Respondent intended'to continue improv- ing wages when it could. On the other hand, he held out the prospect that wages could go up or down or stay the same as a result of bargaining despite the stated company policy, the union assurance of automatic wage increases, and the prospect of union demands for more money. A listener would necessarily conclude that wages could stay the same or go down only if Respondent in bargain- ing from scratch proposed freezing or, reducing wages and refused to agree to any increase. In the light of the withheld January 1 increase, I find that Boag's remarks reasonably intended to threaten employees with the loss of wages and benefits they would otherwise have re- ceived.17 IV. THE OBJECTIONS The Union's objections 3, 4, 6, 7, 15, and 16 raise es- sentially the same issues as the allegations of the com- plaint. The finding above that Respondent violated-Sec- tion 8(a)(1) of the Act during the period between the filing of the petition on November 3, 1980, and the date of the election warrant a finding that the objections have merit. Accordingly, I shall recommend, that objections 3, 4, 6, 7, 15, and 16 be sustained. v. THE REMEDY Having found that Respondent-engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate- the policies of the Act. I further recommend that the election held January 8, 1981, be set aside and that Case 11-RC-4938 be remand- ed to the Regional Director for Region 11 for the pur- pose of conducting a new election at such time as he deems that circumstances permit a free choice of bar- gaining representative. In view of the findings and con- clusions above, Respondent's Motion to Dismiss the complaint and objections is denied. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW' 1. Atlantic Forest Products, Inc., is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 20408, United Warehouse, Industrial and Af- filiated Trades Employees Union is a labor organization within the meaning of Section 2(5) of the Act. 17 Textron, Inc, 199 NLRB 131 (1972). ATLANTIC FOREST PRODUCTS 875 3. By interrogating employees concerning their union activities, by withholding a regularly scheduled wage in- crease because of employees' union activities, by harass- ing employees through following them or keeping them under observation at work because of their union activi- ties, and by threatening employees with plant closure and loss of work benefits if they chose to be represented by the Union, Respondent has engaged, in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'8 ORDER The Respondent, Atlantic Forest Products, Inc., Eden- ton, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union sympa- thies or activities. (b) Threatening employees with plant closure or loss of work or benefits in the event they choose to be repre- sented by a labor organization. (c) Withholding or postponing regularly scheduled wage increases because of employees' union activities. (d) Harassing employees by following them or keeping them under observation at work because of their union activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Edenton, North Carolina place of busi- ness copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re- spondent's authorized representative, shall be posited 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. 18 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. 19 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."