Establishment Industries, Inc.

ESTABLISHMENT INDUSTRIES 121 Establishment Industries, Inc. and United Automo- bile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, Local 645, UAW. Cases 31-CA-15570 and 31-RC-5954 4 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 31 October 1986 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions as modified 2 and to adopt the recom- mended Order as modified. AMENDED CONCLUSIONS OF LAW Substitute the following for the second para- graph of Conclusion of Law 3: "The Company violated Section 8(a)(1) of the Act by granting pay raises to approximately one- third of its employee complement in the pay period ending 8 November 1985." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Establishment Industries, Inc., San Fer- nando, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We do not agree with the judge that the Respondent's statement that "[a]fter the election, the Company would continue to try to do the best [it] could for the employees" was unlawful or objectionable The judge concluded that while this type of statement is usually lawful, the recent unlawful wage increases converted the statement into an unlawful prom- ise of benefits. Absent statements or other conduct linking the 18 Decem- ber 1985 statement to the unlawful wage increases, we cannot agree Cf St, Francis Hospital, 263 NLRB 834, 837 (1982) (supervisor's promise re- ferred specifically to previous unlawful wage increase). The record estab- lishes no connection between the 8 November 1985 unlawful wage in- creases and the 18 December 1985 meeting See Noral Color Corp, 276 NLRB 567, 572 and fn 9 (1985) Because we agree with the judge that the wage Increases for the week of 8 November 1985 violated Sec 8(a)(1) of the Act, we fmd It unneces- sary to pass on whether the increases also violated Sec 8(a)(3). 1. Delete paragraph 1(d) and renumber the sub- sequent paragraph accordingly. 2. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election held in Case 31-RC-5954 is set aside and is remanded to the Regional Director for Region 31 to conduct a new election when he deems the circumstances permit the free choice of a bargaining representa- tive. [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten any employee that his/her job will be in peril should he/she sign a union authorization card. WE WILL NOT interrogate employees about their union sentiments and the union sentiments of other employees. WE WILL NOT grant pay raises to discourage em- ployee support of any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. ESTABLISHMENT INDUSTRIES, INC. David Tajgman, Esq., for the General Counsel. James T. Winkler, Esq. (Atkinson, Andelson, Loya, Ruud & Ramo), of Cerritos, California, for the Company. Jesus E. Quinonez, Esq. (Taylor, Roth & Bush), of Los Angeles, California, for the Union. 284 NLRB No. 16 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION AND REPORT ON POSTELECTION OBJECTIONS STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This consolidated matter was tried before me in Los Angeles, California, on 13 and 14 May 1986.1 The charge in Case 31-CA-15570 was filed on 3 Feb- ruary 1986, and amended on 14 March, by United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, Local 645, UAW (Union). The complaint issued on 14 April, was amended during the trial, and alleges that Establishment Industries, Inc. (Company) committed various violations of the National Labor Relations Act (Act) preceding an NLRB-conduct- ed election held on 20 December 1985 in Case 31-RC- 5954. The complaint alleges, more specifically, that the Company violated Section 8(a)(3) and by granting wage increases during the pendency of the election, and that it further violated Section 8(a)(1) in October and again in December 1985 by sundry verbal acts. The election, involving a unit of production and main- tenance and shipping and receiving employees, derived from a petition filed by the Union on 15 October 1985 and a Decision and Direction of Election issued by the Regional Director for NLRB Region 31 on 20 Novem- ber. The election tally was 61 votes for and 109 against union representation, with 24 challenged and 2 void bal- lots. The Union filed objections to the conduct of the election on 30 December; and, on 29 April 1986, the Re- gional Director ordered that the objections matter be consolidated with the complaint matter herein for pur- poses of hearing and decision because of the congruency of factual issues. I conclude below, after an examination of the relevant evidence and applicable legal principles, that the Compa- ny violated the Act as alleged in some respects, that it did not commit other alleged violations, and that the vio- lations interfered with free voter choice in the election, requiring that it be set aside and a new election conduct- ed. I. JURISDICTION The Company is a California corporation engaged in the manufacture of motor homes in San Fernando. Its nonretail sales to customers outside California exceed $50,000 annually. The Company is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within Section 2(5) of the Act. 1 This manner of setting forth dates comports with the wishes of the Board. III. THE ALLEGEDLY UNLAWFUL THREAT ABOUT 16 OCTOBER 1985 A. Allegation The complaint alleges that about 16 October 1985 Guillermo Salinas, a foreman, "threatened an employee with discharge if the employee joined the Union," there- by violating Section 8(a)(1). B. Evidence Salinas, an admitted supervisor, oversaw the work of Lobo Rodriguez, a cabinetmaker. Asked by counsel for the General Counsel if Salinas had "ever talk[ed] to [him] about the Union," Rodriguez answered that he had, "around October 16th, something like that." Rodri- guez enlarged that Salinas directed that he stop his ma- chine, then stated: If you haven't done it . . . don't do it . . . . [B]ecause, if you sign these papers, what could happen [is] that they could throw you out or they're not going to do anything. You're going to lose your job. Rodriguez did not identify or describe the "papers" to which Salinas referred. The record indicates, however, that the Company by then knew that the procurement of employee signatures on so-called authorization cards was central to the Union's organizing effort. Thus, Company President William Rex testified that he learned about the organizational ferment before the Union's 15 October filing of the election petition; and that he then sought "a little background information" from an official of Vogue Coach, a rival motor home manufacturer that had had an ill-fated relationship with the Union in the late seventies, who told him that "the Union came in, got cards signed, had a vote, etc." Rodriguez, whose primary language is Spanish, testi- fied through an interpreter. Salinas did not testify. C. Conclusion While Rodriguez' account of this incident was hardly pellucid, doubtless due in major part to the language bar- rier, his palpable sincerity in the telling leaves no doubt that Salinas bespoke himself substantially as described. Moreover, the timing of the incident relative to the filing of the petition, the Company's awareness by then of the role of signature solicitation in organizational activity, and the absence of any other suggested or plausible con- text for Salinas' remarks, in combination, compel the in- ference that Salinas indeed did tell Rodriguez his job would be in peril should he sign an authorization card. By doing so, Salinas violated Section 8(a)(1) as alleged. IV. THE ALLEGEDLY UNLAWFUL INTERROGATION ABOUT 21 OCTOBER 1985 A. Allegation The complaint alleges that, about 21 October 1985, President William Rex and/or Personnel Manager David Bocanegra, and/or Sales Coordinator Raul Ortiz, "inter- ESTABLISHMENT INDUSTRIES 123 rogated employees regarding their union sympathies," thereby violating Section 8(a)(1). B. Evidence The morning of 17 October, employees Jaime Ar- guelles, Ana Escanuelas, Marcos Hernandez, and Ernesto Radiilo were directed by loudspeaker to go to the pro- duction office. There, they were met by Rex, Ortiz, and Plant Manager Jack Davis. Rex presided over the ensu- ing meeting, with Ortiz translating between English and Spanish. Bocanegra was not present.2 Radiilo testified that Rex began by asking the employ- ees if they knew that "the people were organizing," what they knew "about the Union," and what benefits they would gain "if [they] had a union." Radillo an- swered, so he recounted, that he had known nothing about such matters "until that moment," to which he added that, "if the people were organizing, surely it was because of the bad treatment" they were getting— "all the injustices" and "all the bad benefits." Radillo's ac- count went on that he cited the failure of his immediate supervisor to give him a $1-an-hour raise the supervisor had promised when Raclin° was made leadman several months earlier, and that he also complained about the high cost to the employees of obtaining family coverage under the Company's health insurance plan. Arguelles testified that Rex asked him, "Jaime, do you [want] the Union to come into the Company?", after which he invited the employees to sit down and declared that he was "not trying to intimidate" them, but wanted to "know why [they] were organizing." Arguelles asser- tedly replied that he did not "know anything." Rex denied generally that he ever interrogated em- ployees concerning their union activities. Regarding the 17 October meeting, he conceded that the subject of the Union "did come up," but qualified that he did not "initi- ate it." Rather, he testified, he had called the employees in to discuss the "problems" they were having with their supervisor; and Radillo responded to his opening ques- tions by declaring that "the Union was in there" because of the "mistreatment of employees" by two different su- pervisors. Rex testified that although Radillo had complained to him in the past about supervisory abuse, he could not recall ever before calling a meeting such as this to deal with the problem. 3 Asked if the recently filed election petition had prompted the meeting, Rex stated: I don't recall that being my motive. . . [A]t any- time I would hear of any problem, I would do something about it. . . I would go out and find out what was going on. 2 Rathllo testified that Bocanegra attended Bocanegra and Arguelles both testified, more convincingly, that he did not Although the com- plaint alleges that the subject conduct occurred about 21 October, coun- sel for the General Counsel represented on the record that the allegation contemplates this 17 October meeting. 3 Rex was notably equivocal on this point, testifying variously: "I can't say that for a fact, no", "My answer is, I don't know"; and, "I don't recall doing it before that, but I may have" Pressed to say what had "specifically prompted" the meeting, Rex testified: I can't pinpoint that. . . . If I had to pick some- thing, it might be the dollar an hour [raise promised Radillo], I do recall that. . . . I think I may have heard something [about that] before . . . , and Ra- dillo brought it up again [in the meeting.] Rex testified that he "was mostly listening" during the meeting. He admittedly said he would "look into" the employees' complaints and "probably" said he would take appropriate corrective action or "something to that effect." He further stated, by his own admission, that he "wouldn't tolerate some of the things" the employees had attributed to the two supervisors, and that the em- ployees "would get" raises "if they deserved them." The record contains no evidence that either Escanue- las or Hernandez had openly espoused the Union to the time of this meeting. It is less clear concerning Radillo and Arguelles, although their renditions of the meeting, if credited, particularly their professed ignorance of union activity, indicate that they had not. Rex testified, but without fixing a time for the first instance, that he had seen Radillo and Arguelles "just outside our gate" with union representatives on occasion, and that he also had seen Radillo, and possibly Arguelles, passing out campaign literature. C. Conclusion Radillo is credited that Rex asked questions approxi- mating those set forth in his testimony. Arguelles like- wise is credited. Both displayed a convincing testimonial demeanor. Although the specific terms of their two ver- sions were not perfectly consonant, the two did match in substance. Rex's testimony about this meeting, on the other hand, including his assertion that he never interro- gated employees about union activities, was flawed by equivocation and weak demeanor. Additionally, the timing, uniqueness, and grievance-seeking purport of the meeting suggest a union-parrying objective more com- patible with the Raclin° and Arguelles renditions than with the Rex alternative. In Rossmore House, 269 NLRB 1176, 1177-1178 (1984), the Board declared: [A]n employer's questioning open and active union supporters about their union sentiments, in the ab- sence of threats or promises, [does not] necessarily [violate] Section 8(a)(1) of the Act. Elaborating, the Board stated at 1178, fn. 20: Experience convinces us that there are myriad situa- tions in which interrogations may arise. Our duty is to determine in each case whether, under the dic- tates of Sec. 8(a)(1), such interrogations violate the Act. Some factors which may be considered in ana- lyzing alleged interrogations are: (1) the back- ground; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. . . . These and other rele- vant factors are not to be mechanically applied in 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD each case. Rather, they represent some areas of in- quiry that may be considered in applying the Blue Flash test of whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act. 4 Applying the prescribed totality-of-circumstances test to the conduct in issue, I conclude that Rex violated Sec- tion 8(a)(1) as alleged by asking the summoned employ- ees, in essence, what they knew about the Union, why the employees were organizing, and what they felt they would gain by organizing; and, further, by asking Ar- guelles if he wanted the Union. The bases for this conclusion are: (1) none of the four employees involved was an openly declared union sup- porter at the time; 5 (2) the encounter did not happen by chance; rather, the four employees were called by loud- speaker, infusing the event with menacing formality; (3) the questioning was conducted in the locus of manage- ment authority, was administered by the company presi- dent, and was attended by two other ranking manage- ment officials, Davis and Ortiz, all of which added to the aura of menacing formality; (4) the questioning was jux- taposed with other conduct—grievance solicitation and the promise of redress—plainly designed to undermine the Union; and (5) the questioning was not accompanied by assurances against reprisal6 or any showing of valid purpose. See generally Baddour, Inc., 281 NLRB 546 (1986); United Artists Communications, 280 NLRB 1056 (1986); Cafe La Salle, 280 NLRB 379 (1986); Well-Bred Loaf 280 NLRB 306 (1986); Springs Motel, 280 NLRB 284 (1986); Woodcliff Lake Hilton, 279 NLRB 1064 (1986); National Micronetics, 277 NLRB 993 (1985); Mi- chael's Markets of Canterbury, 274 NLRB 755 (1985); J. & G. Wall Baking Co., 272 NLRB 1008 (1984). V. THE ALLEGEDLY UNLAWFUL WAGE INCREASES A. Allegation The complaint alleges that, on dates then unknown be- tween 15 October and 20 December 1985, the Company "granted employees wage increases . . . because its em- ployees joined, supported, or assisted the Union. . . and • . . to discourage employees from engaging in such ac- tivities," thereby violating Section 8(a)(3) and (1). In his brief, counsel for the General Counsel narrows the time of the alleged violations to the 1-week pay period ending 8 November. 4 The Blue Flash reference is to Blue Flash Express, 109 NLRB 591 (1954) 5 Crediting Radillo and Arguelles that they professed ignorance of the union ferment And, even if they had openly declared their support of the Union by then, that would not have excused the inclusion of Escan- uelas and Hernandez in the interrogation process Cafe La Salle, 280 NLRB 379 (1986) 6 Rex's comment that he was "not trying to intimidate" the employees was not a sufficient assurance. Cf, , Springs Motel, 280 NLRB 284 fn 2 (1986) B. Evidence Dunng the pay period ending 8 November 1985, the Company granted hourly raises of 25 and 50 cents to 60 out of the approximately 180 in the petitioned-for unit at the time. Otherwise in 1985, the number receiving raises in a given pay penod never exceeded 18; and, for all of 1985 an average of between 5 and 6 employees per pay period, representing slightly over 3 percent of the pay- roll, received raises. In 1984, the Company once gave raises to 45, out of a complement of about 168, in a single pay period. In 1984 otherwise, the most to get a raise in any period was 25, which happened twice. In the average 1984 pay period, about eight employees, or fractionally less than 5 percent of the payroll, received raises. Rex testified that the Company has "no set policy as far as giving [raises]." In "most cases," he went on, the employee desiring a raise must "initiate" the process by going to his/her leadman. The leadman in turn refers the matter to the plant manager; and the plant manager, if sympathetic with the request after checking such things as the employee's tenure and attendance and the date of his/her last raise, recommends to Rex that a raise be granted. Rex, by his own depiction, "function[s] largely as a rubber stamp" in the process. Rex conceded that "most of the [employee] com- plaints" in a series of 15 or so small-group meetings held during the pendency of the election, and "probably the biggest and most often asked question[s]" in those meet- ings "were about pay"—"why we didn't give them more raises and why wasn't there some kind of policy and. . . how come Johnny working next to me makes more than me and I've been here longer[?]" The weight of evidence indicates that these meetings began in October.7 Two of those receiving raises during the pay period ending 8 November, Ernesto Radillo and Salvador Men- doza, testified that they had not asked for them. Mendo- za added that he and two coworkers who received raises at that time, Ana Escanuelas and Jose Torres, learned of their pendency simultaneousIV, when told by their common supervisor. Another employee, Lobo Rodriguez, among 10 given a raise during the pay period ending 25 October, also testified that he had not asked for it; that, indeed, it "surprised" him Rex denied ever granting a raise to discourage union activity. Bocanegra, said by Rex to be "sometimes in- volved" in raise decisions, di la likewise. Rex further denied any awareness that an unusual number of raises were granted during the pendency of the election. As this might suggest, the Company advanced no explana- tion for the high number of raises granted in the 8 No- vember pay period. Plant Manager Jack Davis, for whom Rex professedly "function[s] largely as a rubber stamp" regarding raises, did not testify. 7 Rex testified that they began "sometime in October or November" As earlier described, Rex met with four employees as early as 17 Octo- ber, holding forth the possibility of raises ESTABLISHMENT INDUSTRIES 125 C. Conclusion Several factors dictate the inference that the raises granted during the pay period ending 8 November were prompted by the Company's desire to blunt employee support for the Union, thus breaching "the Board's well- established rule that during the preelection period an em- ployer must grant or withhold benefits as he would if a union were not in the picture."8 These factors are: (1) the raises were granted during the pendency of the election, following small group meetings in which "the biggest and most often asked question[s] . . . were about pay;" (2) the raises were un- precedented in scope; and (3) the weight of evidence in- dicates that contrary to the usual practice those receiving the raises were not required to "initiate" the process. Thus, the burden shifts to the Company to show that the raises were legitimately grounded, and the Company having failed to come forth with any legitimizing expla- nation, I conclude that the raises granted during the pay period ending 8 November violated Section 8(a)(1) and (3) as alleged. See generally The Gerkin Co., 279 NLRB 1022 (1986); Payne & Keller, Inc., 258 NLRB 892 (1981); Lang Feed Co., 227 NLRB 1588 (1977); Great Atlantic & Pacific Tea Co., 166 NLRB 27 (1967). VI. THE ALLEGEDLY UNLAWFUL VERBAL ACTS ABOUT 18 DECEMBER 1985 A. Allegation The complaint alleges that during an employee meet- ing about 18 December 1985 "to dissuade employee sup- port for the Union," Rex and/or Bocanegra "promised employees wage increases," and "threatened employees: (1) with terminations; (2) that a strike would result and strikers would be arrested; (3) with plant closure; (4) with more onerous working conditions; and (5) with loss of accrued seniority," thereby violating Section 8(a)(1) in each instance. B. Background Rex, with Bocanegra translating, presided over an em- ployee meeting, attended by about 175, on the afternoon of 18 December. The meeting lasted "10 to 15 minutes," according to Rex, and "was a condensed version of what went on" in the approximately 15 small group meetings, previously mentioned, that had preceded it. The earlier meetings generally were attended by from 10 to 20 em- ployees and lasted an hour or more. C. The Alleged Violations 1. The alleged promise of wage increases a. Evidence Raclin° testified that Rex/Bocanegra made remarks of the following nature during the 18 December meeting: (1) That the employees "should trust" the Company; that the Company "couldn't do anything at that moment 8 Gerkin Co., 279 NLRB 1012 (1986), quoting from Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29 fn 1 (1967). because it was illegal," but conditions "would be better" after the election. (2) That, "if the people supported the Company, after- wards there were gonna be better things," but that "they couldn't be done at that moment because it was illegal." (3) That, whereas the Union "could make promises" that were "pure lies," the Company "could not make promises because it was illegal." (4) That, "after the election, the Company would con- tinue to try to do the best [it] could for employees." In evidence is a lawyer-prepared document entitled "Outline for Meetings," which Rex followed in the small-group meetings and doubtless used to some extent in the 18 December meeting, as wel1.8 Among its entries are these: VIII. COMPANY POLICIES A. Company has always tried to treat employees fairly and will continue to do so. B. Company has always paid fair, competitive wages and employee benefits. Our past practice has been to regularly improve wages and benefits as we have been able, and we intend to continue with that practice in the future. IX. CONCLUSION A. Company honestly believes that employees are better off without Union. 1. Our employees make good wages and have good fringe benefits and working conditions and we will continue to regularly improve our wages and benefits as we have in the past. Rex and Bocanegra denied that wage increases were promised during the meeting. Radiilo's testimony on this issue is uncorroborated, although three other employees testified about the meeting." He testified through an in- terpreter. b. Conclusion Radillo testified on the one hand that Rex/Bocanegra said things "were gonna be better" after the election "if the people supported the Company," and, on the other, that Rex/Bocanegra said, "[A]fter the election, the Com- pany would continue to try to do the best [it] could for employees." That the latter was said is altogether likely, for it par- allels certain of the languge extracted from the Outline for Meetings, most notably this passage: "[W]e will con- tinue to regularly improve our wages and benefits as we have done in the past." Regarding the former, however, one felt as he gave this testimony that Radiilo was com- 9 As was tacitly admitted by Rex's testimony, "I don't think we went over everything [in the document on 18 December.]" '° One of the three, Carlos Hernandez, testified that he could recall nothing being said about a raise being promised, and the testimony of the other two, Jaime Arguelles and Salvador Mendoza, simply was silent on the subject. 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mingling that which was said with his subjective impres- sion of the intended message. The absence of corrobora- tion elevated that feeling to certitude. Therefore, Radii- lo's testimony that Rex/Bocanegra made a remark of this sort is not credited." Generally, employer statements of the kind credited, to the effect that past practices will continue after the election, are permissible campaign propaganda. See Na- tional Micronetics, 277 NLRB 993 (1985); Noral Color Corp., 276 NLRB 567 (1985); Agri-International, 271 NLRB 925 (1984); Allied/Egry Business Systems, 169 NLRB 514 (1968). Such remarks are not to be judged in a vacuum, however, and, as I concluded previously in this decision, the Company only recently had "sweet- ened" its past practice as concerns wages by unlawfully granting a number of raises. That unlawful "sweetening" necessarily tainted the statement in question, converting it into an improper promise violating Section 8(a)(1) as alleged. 2. The alleged threat of termination a. The General Counsel's theory Counsel for the General Counsel argues that Rex im- pliedly threatened the employees with termination, the "thrust" of his remarks "in conjunction" being that, "if the Union were selected, a strike would occur, strikers would be replaced, and replaced strikers would lose their jobs." b. Evidence Rex testified that he "wanted to get the point across that nothing was automatic if the Union won," and that he "pressed hard" on the "point" that if the Union did win, and we went into negotiations under good faith, which we said we would do, that if a strike were to occur, that we would feel obli- gated to hire permanent replacements and that we would not allow the plant to be closed down be- cause of a strike and that we would feel morally ob- ligated to keep it open. In the course of his presentation, as in perhaps all the small group meetings as well, Rex cited union-related de- velopments at Vogue Coach, a nearby manufacturer of motor homes. The employees at Vogue Coach had struck in the late 1970s, apparently in support of the Union's position in contract negotiations. Many were permanently replaced as a result, never regaining their jobs. That the Union "lost" this strike is "common knowledge" in the industry, according to Rex. Rex re- counted that he pointed to Radillo and Arguelles, both of whom had lost their jobs at Vogue Coach by being permanently replaced, and urged their coworkers to "please look at" them and " The mixing of subjective with objective likely was attributable at least in part to the language barrier But, absent exploitation of a lan- guage barrier to mislead, an employer's words are entitled to their ordi- nary meaning Cf., Hanover Industrial Machine Cc, 270 NLRB 841, 841 fn 1 (1984); Purolator Products, 270 NLRB 694, 712 (1984) ask them what went on [at] Vogue, and if every- thing was so great there, and all of the benefits and wage increases and everything, and the promise of job security were so good, why weren't they still there and why were they working for us? And then I once again asked all employees, please ask Mr. Radillo and Mr. Arguelles, if things were so great there, why aren't they still there? Rex also discussed the implications to the Company of an all-employee wage increase of 55 cents per hour, using calculations to "make the point," as he put it, "that even a 55-cent raise was a lot to us" and would largely offset profits. Rex testified: "The feeling was that we were made of money and we should be paying these huge wages. And I was just trying to get a point across that that wasn't the reality of it." Asked why he chose 55 cents, Rex testified that raises of 50 cents were "kind of basic" for the Company, so he "just went a little above that for 55." Radillo testified that Rex/Bocanegra "repeated about three or four times" that the employees "should ask" Ar- guelles and him "what had happened at Vogue Coach," and exhorted the employees to remember everything that had happened at Vogue Coach. Above all, the people who had been unem- ployed and without help. And the [Union] . . . didn't do anything for them. That we should think about it well. Rex also declared, according to Radillo, that the Compa- ny "already had people" to replace strikers should it come to that. Radillo's testimony just described was more or less mirrored by that of Arguelles, Carlos Hernandez, and Salvador Mendoza. Arguelles testified that Rex/- Bocanegra prompted the employees "two or three times" to ask Radillo and him "what had happened at Vogue Coach," admonishing that "the same thing could happen that had happened" there. Rex/Bocanegra further re- marked, per Arguelles, that the Company "already had people to come in to work" if the employees struck. Hernandez related that, besides telling the employees to ask Radillo and Arguelles why they no longer worked at Vogue Coach, Rex/Bocanegra said that "problems" would follow should the Union win. Rex/Bocanegra elaborated, according to Hernandez, that "there could be strikes and . . . the workers that would go on strike could be replaced immediately";" that "the same thing was going to happen . . . that would happen to the people at Vogue Coach." Hernandez corroborated Rex that Rex said the Company would bargain in good faith. Mendoza testified that upon recommending that the employees "ask Jim Arguelles and Ernesto Raclin° why they weren't working at Vogue Coach," Rex/Bocanegra announced that i2 one point, Hernandez attributed to Rex/Bocanegra the statement that strikers "could be fired automatically" He later conceded that, "technically, they used the word 'replaced " He explained that, to him, the two words "are the same." ESTABLISHMENT INDUSTRIES 127 if the people wanted to support the Union. . they could run the same luck that they [Arguelles and Radillo] had being able to lose their jobs. That. . . if we went out on strike . . . they were going to put in other people to replace us in our jobs. Rex/Bocanegra added, according to Mendoza, that the replacements would have "more rights to our work than we did." The previously mentioned Outline for Meetings used by Rex in the small-group meetings and to some extent on 18 December states in relevant part: VI. No Automatic Contracts A. If the Union wins election, Company must bargain with them; but nothing is automatic. B. State that Company will obey the law and will bargain in good faith, but. . . C. Negotiations may drag on for months or even a year. D. Under the law, Company is not required to make concessions. E. Company cannot and will not agree to any- thing that would push its costs out of line and make it uncompetitive. VII. Possibility of Strike A. If Company and Union cannot agree on con- tract, Union's only effective weapon is a strike. B. Company has customers who it must serve and contracts which it must fulfill; therefore it will operate if there is a strike. C. In order to operate, Company would feel mor- ally obligated to recruit permanent replacements. D. Strikers do not earn any wages or fringe bene- fits and are not eligible for unemployment insurance benefits. E. More importantly, replacements can take the jobs of the strikers because law says that: 1. Once striker replaced by permanent replace- ment, job can belong to replacement. 2. Replacement can keep job on a regular basis, even after strike is over. 3. Striker has no legal right to job as long as replacement is working. Note: Do not state that strikers can be fired or dis- charged. IX. Conclusion A. The Company honestly believes that employ- ees are better off without Union. . . . . 3. Our employees should not run the risk of possibly losing jobs due to strikes. c. Conclusion Addressing an issue much like the present in Allied/Egry Business Systems, 169 NLRB 514 (1968), the Board observed at 514: [I]n all cases such as this one, where one must at- tempt to fathom the meaning of another's words and assess the impress of such words on employees, reasonable men may differ. . . . So it is that I conclude, contrary to the General Counsel, that the remarks in question did not exceed the bounds of permissible campaign rhetoric. To be sure, Rex sought to impress on the employees the possibility of a strike and the attendant risk of job loss through permanent replacement, citing the ready availability of replacements and harping on developments at Vogue Coach to dramatize the point. Neither he nor Bocanegra said, however, that a strike was inevitable should the Union win the election. Rather, while doubt- less stressing that bargaining might well be protracted, difficult, and ultimately unfruitful, they said that the Company would bargain in good faith. Nor did they mis- represent the job status of strikers vis-a-vis permanent re- placements; and, as I conclude later in this decision, the meeting otherwise contained no unlawful threats. Quoting from Allied/Egry Business Systems, supra, 169 NLRB 514, "an employer's expressed views on the possi- ble economic disadvantages flowing from strikes is [not] irrelevant to a reasoned [voter] choice." Similarly, as stated in Agri-International, 271 NLRB 925, 926 (1984), an employer is "under no obligation to shield its employ- ees from the 'cold, hard facts' concerning the detrimental effects of past strikes by the Union." Finally, extracting from Eagle Comtronics, 263 NLRB 515, 515-516 (1982): [A]n employer does not violate the Act by truthful- ly informing employees that they are subject to per- manent replacement in the event of an economic strike. . . . Unless the statement may be fairly un- derstood as a threat of reprisal against employees or is explicitly coupled with such threats, it is protect- ed by Section 8(c) of the Act. . . . 13 As long as an employer's statements on job status after a strike are consistent with the law, they cannot be character- ized as restraining or coercing employees in the ex- ercise of their rights under the Act.14 The passages just related apply no less to the conduct in issue than to that in the decisions from which they came. This allegation therefore is without merit. 13 Sec 8(c) states "The expressing of any views, argument, or opin- ion, or the dissemination thereof . shall not constitute or be evidence of an unfair labor practice . if such expression contains no threat of reprisal or force or promise of benefit." 14 The Board added at 263 NLRB 516 that an employer need not "ex- plicate all the possible consequences of being an economic striker." 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. The alleged threat that a strike would result and 4. The alleged threat of plant closure strikers would be arrested a. Evidence a. Evidence As noted above, Rex emphasized during the 18 De- cember meeting that the Company would continue to operate during a strike, hiring permanent replacements as needed. Arguelles testified that Rex/Bocanegra added, in this regard, that the Company "could call the police so that the [replacement] workers . . . could come in." Sal- vador Mendoza testified that Rex/Bocanegra said police "would intervene" if strikers were "blocking people [i.e., replacements] from coming in," or were "disturbing them at the door," or were "in the door and in the way." Carlos Hernandez recalled that Rex/Bocanegra said, simply, that the Company "could even call the police so they could take out the people from inside of the plant, the people that were on strike." In the same vein, Radillo testified that Rex/Bocanegra said the Com- pany was "gonna bring police so that [replacements] could come in." Radillo would have it, however, that this occurred on 19 December and that Rex/Bocanegra spoke instead of plant closure during the meeting on the 18 December. Rex denied ever saying strikers would be arrested. He also denied, by implication, that he said anything about police on 18 December, recalling that the subject instead came up in one of the small group meetings. Rex testi- fied: One of the employees had told me that, if there was a strike, they [the strikers] wouldn't allow other workers to come in to work, that they would stop them. I said you couldn't do that, it would be against the law, and that, if forced to, we could bring in the police to allow the . . . permanent re- placements to come into the plant. Bocanegra likewise denied ever saying strikers would be arrested. b. Conclusion Synthesizing the testimony on this issue, Rex/- Bocanegra raised the possibility during an employee meeting that, were a strike to happen, the Company would call police to enable striker replacements to come to work should their access to the plant be impeded by strikers. Nothing in these remarks carried the implication that employees would be arrested for striking or engaging in other activities protected by the Act. 15 This allegation therefore is without merit. " Hernandez' testimony—that Rex/Bocanegra said the Company "could even call the police so they could take out the people from inside the plant, the people that were on strike"—arguably supports the General Counsel's contention to the contrary It also arguably corroborates the other witnesses' generally consonant recitals, albeit incompletely The weight of evidence favors the latter construction Radillo testified that Rex/Bocanegra stated, "almost at the beginning" of the 18 December meeting, that "the plant would be closed if the Union won" the election. The "exact word[s]," Radillo persisted, were that "the plant would be closed." Similarly, Salvador Mendoza at- tributed to Rex/Bocanegra the remark that, if the Union won, . . . they were going to close [the] Company because the Union was going to force them to pay more salary, and . . . they couldn't pay it. Rex denied saying anything like this. Rather, as earlier detailed, he testified that the Company would remain open despite a strike, using permanent replacements, etc. Bocanegra also denied that a closure threat was made, In evidence is a note prepared by Rex to serve as "a little guide"—his depiction—in the 18 December meet- ing. Among its entries is this: "4. Out of Bus." Rex testi- fied that, although the note contained "items [he] wanted to hit on," he could not "remember why [he] wrote that down" and was "not sure" of its meaning. He speculated at one point: I think that was in a statement I made that this company was virtually out of business before I took it over three years ago [and its] financial position was much improved. He ventured at another point: I may have said that we would not let the Compa- ny go out of business if there was a strike, and that we would hire permanent replacements. Two employees in addition to Radillo and Mendoza, Arguelles and Carlos Hernandez, testified about the 18 December meeting. Neither mentioned a threat of clo- sure. b. Conclusion Given Rex's undoubted emphasis during the meeting on the Company's resolve to stay open, strike notwith- standing, the testimony of Radillo and Mendoza that Rex also threatened closure should the Union win simply does not "compute." Thus, although Rex's testimony concerning the "Out of Bus" entry was puzzlingly inept, he and Bocanegra are credited that such a threat was not made. This allegation therefore is without merit. 5. The alleged threat of more onerous working conditions Evidence Counsel for the General Counsel acknowledges in his brief that "no evidence was adduced with regard to this [allegation]." ESTABLISHMENT INDUSTRIES 129 6. The alleged threat with loss of accrued seniority a. Evidence Carlos Hernandez testified that Rex/Bocanegra stated during the 18 December meeting that "all the employees were going to start over again, it wouldn't matter how long [they] had been there at the union start." Rex denied that he threatened employees with the loss of seniority, further denying that he said anything about seniority during the meeting. He admittedly "wanted to get the point across that nothing was automatic if the Union won," however, and concededly stated in several of the earlier small-group meetings that neither wages nor job security were "automatic" with union representa- tion. Echoing Rex, Bocanegra denied that he said, as the translator, that employees engaging in union activities would lose their seniority. Of the three employees other than Hernandez to testi- fy about the 18 December meeting, Salvador Mendoza stated that he could not recall seniority being mentioned, and both Raclin° and Arguelles were silent on the sub- ject. b. Conclusion Rex's testimony on this issue was more convincing than Hernandez' uncorroborated account, and is cred- ited. Given a fair reading, Rex's statement that "nothing was automatic if the Union won" was not "a threat to discontinue existing benefits," but rather was "merely de- scriptive of the employer's bargaining strategy, designed to let employees know that unionization does not mean automatic increases in benefits." Host International, 195 NLRB 348, 348 (1972). This allegation therefore is with- out merit. VIII. THE ALLEGEDLY UNLAWFUL VERBAL ACTS ABOUT 19 DECEMBER 1985 A. Allegation The complaint alleges that, about 19 December 1985 Rex and/or Bocanegra "stated and/or implied that em- ployees were being denied benefits because of their sup- port for the Union," and "threatened employees that if the Union won the election there would be a strike and that the Company would retaliate against employees who supported the Union by imposing more onerous working conditions," thereby violating Section 8(a)(1) in each instance. B. Evidence Salvador Mendoza testified that he was among about 15 employees attending a meeting in the engineering office on 19 December. The meeting was conducted by Rex, with Bocanegra translating, according to Mendoza, began at about noon, and lasted about 2-1/2 hours. He was told to attend by his supervisor, as he recalled. Among the comments made by Rex/Bocanegra, Men- doza testified, was this: [B]eginning on the 20th, the people were going to be divided. . . . [T]he people who voted for the Union were going to be forced to go out on strike. Asked then, to recite the "exact words" used by Rex/Bocanegra, Mendoza testified: "What I didn't un- derstand well was that the people were going to be di- vided. I don't know in what way. Well, I don't remem- ber." Mendoza continued: Well, the only thing that I remember is that I said if I was doing the same work as Ernesto Radillo, why was he earning more than I was? And so I was told that if I wasn't happy, why didn't I leave the Com- pany? And so I said I was going to stay there until they fired me. And so they went and they brought back my work file. The complaint, until amended late in the hearing, al- leged that the conduct in question occurred on 17 De- cember. Mendoza's affidavit likewise gives 17 December as the date. Attempting to explain the discrepancy be- tween that and his testimony, Mendoza testified that he told the NLRB investigators that the meeting was on 19 December, but "they confused the dates." Rex denied threatening employees with more onerous conditions for supporting the Union. Bocanegra voiced a similar denial, further denying that he told employees on about 17 December that a strike would happen should the Union win the election. Mendoza's testimony, through an interpreter, was un- corroborated. 16 He is still employed by the Company. C. Conclusion Mendoza's testimony, not only uncorroborated but tentative and disconnected, lacked the cogency needed to carry the General Counsel's burden with respect to this allegation. The allegation therefore is without merit. CONCLUSIONS OF LAW The Company violated Section 8(a)(1) of the Act: 1. About 16 October 1985, when Supervisor Gullermo Salinas told employee Lobo Rodriguez, in substance, that Rodriguez' job would be in peril should he sign a union authorization card. 2. About 17 October 1985, when President William Rex asked employees Jaime Arguelles, Ana Escanuelas, Marcos Hernandez, and Ernesto Radiilo, in substance, what they knew about the Union, why the employees were organizing, and what they felt they would gain by organizing; and, further, by asking Arguelles if he wanted the Union. 3. About 18 December 1985, when Rex promised the employees, in substance, that the Company would con- tinue its past practices, which included unlawful raises, to discourage employee support of the Union. 16 Among employees at the meeting, according to Mendoza, were five whom he identified by name. None testified. 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Company violated Section 8(a)(1) and (3) of the Act by granting pay raises to approximately one-third of its complement in the pay period ending 8 November 1985. The Company did not otherwise violate the Act as alleged. The Objections All the Company's misconduct occurred during the "critical period" after the filing of the election petition on 15 October 1985 and before the election on 20 De- cember 1985. I conclude that this misconduct is sufficient to overturn the election.' 7 On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed18 ORDER The Respondent, Establishment Industries, Inc., San Fernando, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening any employee that his/her job would be in peril should he/she sign a union authorization card. (b) Interrogating employees about their union senti- ments and the union sentiments of other employees. 17 As stated Super Thrift Markets, 233 NLRB 409, 409 (1977) Our normal policy is to direct a new election whenever an unfair labor practice occurs during the critical period since "conduct viola- tive of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election" Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786-87 (1962). The only recog- nized exception to this policy is where the violations are such that it is virtually impossible to conclude that they could have affected the results of the election The exception plainly does not obtain in the present case. 18 All outstanding motions with this recommended Order hereby are denied. If no ,exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes. (c) Granting pay raises to discourage employee sup- port of any labor organization.19 (d) Promising employees that it will continue past practices, including unlawful pay raises, to discourage employee support of any labor organization. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effectuate the purposes and policies of the Act. (a) Post at its facility in San Fernando, California, English- and Spanish-language versions of the copies of the attached notice marked "Appendix." 2° Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that to the extent I have found its allegations to lack merit, the complaint is dismissed. IT IS ALSO FURTHER RECOMMENDED that the election of 20 December 1985 be set aside and a new election conducted. 19 This recommended Order shall not be construed as requiring or li- censing rescission of the unlawful raises. 20 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"