Uarco, Inc.

UARCO, INC. 55 UARCO, Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Cases 9-CA-15126, 9-CA-15218, 9-CA-15277, and 9-RC-13255 30 September 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 25 February 1982 Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed cross-exceptions and briefs in support. 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 conclusions3 only to the extent consistent with this Decision, Order, and Direction of Second Election. The judge found that the Respondent committed numerous violations of Section 8(a)(1), (2), and (3) of the Act. The judge determined that the Union enjoyed majority support at the time it demanded recognition from the Respondent. He then sus- tained a number of the Union's objections to con- duct affecting the election held on 21 March 1980, ' In her cross-exceptions to the judge's decision , counsel for the Gen- eral Counsel asserts that the judge committed prejudicial error in failing to grant her motion to strike the testimony of six of the Respondent's witnesses who prior to testifying read portions of the official transcript covering testimony which related to conduct of which they were ac- cused . Noting that he was aware of the witnesses' conduct and evaluated the testimony accordingly, the judge denied the motion Although we do not condone the conduct of the witnesses , we agree with the judge's rea- sons for denying the General Counsel's motion in the circumstances of this case. 2 The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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. The General Counsel also excepts to the j udge's failure to discredit the testimony of certain of Respondent's witnesses who reviewed typewritten statements before testifying The judge failed specifically to address this issue We conclude that his omission is not fatal because it does not affect the ultimate result reached herein As set forth below, we find that the testimony of the General Counsel's witnesses concerning statements at employee meetings, taken together with the Respondent's campaign liter- ature, does not sustain finding violations of Sec. 8(a)(1) Accordingly, we find it unnecessary to pass on the General Counsel's exception, as we would reach the same result even if all the Respondent's witnesses were discredited a We note that the judge at one point in his decision incorrectly refers to employee Cecil Buckner as Cecil Bruckner found that the severity and pervasiveness of the Respondent's unfair labor practices made it futile to order a second election, and concluded that the is- suance of a bargaining order was warranted under the principles of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). We disagree. As more fully set forth below, we now dismiss many of the judge's findings of unfair labor prac- tices. We conclude that the remaining unfair labor practices do not warrant a bargaining order. We further conclude that the remaining unfair labor practices which are also the subject of objections in the representation case warrant setting aside the election. Accordingly, we shall direct a second election. 1. THE ALLEGED 8(A)(1) INTERROGATIONS The judge analyzed the alleged unlawful interro- gations in accordance with PPG Industries, 251 NLRB 1146 (1980), and Fruehauf Corp., 237 NLRB 399 (1978). After the judge issued his decision, the Board established new standards for evaluating al- leged unlawful interrogations. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House, 269 NLRB 1176 (1984). We therefore proceed to a new analysis of these allegations within the frame- work of current Board law. A. Plant Manager Bramble's Interrogation of Employees Goodin and Allen The judge found that on the day of the elec- tion,4 Plant Manager Bramble approached employ- ees Goodin and Allen at their work station and asked them jointly what they were doing wearing "pro-Union" campaign T-shirts and buttons. Bram- ble stated, "You don't see any on me." Goodin protested that she had the right to wear anything she wanted; Allen offered Bramble a union button. We agree with the judge that Bramble's ques- tioning did not violate the Act. Goodin and Allen were known to openly support the Union and the surrounding circumstances demonstrate that Bram- ble's interrogation would not reasonably tend to interfere with the employees' Section 7 rights. Thus Bramble's question was merely a casual refer- ence to the visible emblems of two self-proclaimed union adherents, and was not followed by any other remarks concerning union activity. We there- fore dismiss this allegation. Sunnyvale Medical Clinic, supra; Rossmore House, supra. 4 The election was conducted on 21 March 1980 All subsequent dates refer to 1980 unless otherwise noted. 286 NLRB No. 7 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Supervisor Cross' Interrogation of Employee Betty Wentz The judge found that about 2 weeks prior to the election, Supervisor Cross asked employee Betty Wentz why Wentz thought the employees needed union representation. Wentz' husband was a unit employee and known union activist. In the ensuing conversation, according to the judge, Cross told Wentz that union representation did not ensure that employees would obtain everything they sought; that "in bargaining you had to negotiate for every- thing you got"; and that there was a possibility of losing benefits in the bargaining process. The judge found that Cross' interrogation of Wentz about the production employees' motivations for seeking union representation violated Section 8(a)(1) of the Act. We disagree. Cross' initial question about employees' desire for union representation was followed by speech protected by Section 8(c). We find nothing coer- cive in the circumstances surrounding Cross' ques- tion and therefore dismiss this allegation of the complaint. Sunnyvale Medical Clinic, supra; Ross- more House, supra. D. Supervisor Maynard's Interrogation of Employee Jordan The judge found that about 3 days before the election, Maynard encountered employee Jordan at the latter's work station. Jordan actively supported the Union by distributing union literature and wearing union insignia. According to the judge, Maynard asked Jordan why he thought union rep- resentation was necessary. Jordan responded by re- citing for 2 hours his reasons for representation, after which Maynard threw up his hands and de- parted. The judge found that Maynard unlawfully inter- rogated Jordan. We disagree. Jordan was an open union adherent. Maynard asked one question of him and then merely listened to Jordan's views for 2 hours. We find nothing coercive in this situation and conclude that Maynard's single inquiry to Jordan did not violate Section 8(a)(1). Rossmore House, supra. II. RESPONDENT'S ALLEGED THREATS AND INCULCATION OF FUTILE BARGAINING AT THE PREELECTION MEETINGS AND IN CAMPAIGN LITERATURE C. Supervisor Maynard's Interrogation of Employee Hanley The judge found that on 1 March Supervisor Maynard engaged in a conversation with employee Hanley at Maynard's desk following Maynard's routine review of Hanley's work report. Maynard asked Hanley if there was anything else which Hanley wished to talk about, and Hanley respond- ed negatively. Maynard then asked, "Any union business?" and Hanley replied, "No, not really." Maynard persisted, however, and asked what Hanley felt about the Union. The judge found, and we agree, that Maynard's interrogation violated Section 8(a)(1). Maynard's inquiries lacked the casual, amiable character which frequently typifies innocuous union-related conversation in the workplace. Cf. Sunnyvale Medi- cal Clinic, supra. The setting-at Maynard's desk, following his review of Hanley's work report-em- phasized the authoritative tone and coercive tend- ency of the questions. Maynard's persistence in the face of Hanley's attempt to deflect the questions further reinforced their threatening quality. Under all the circumstances, we conclude that Maynard's interrogation reasonably tended to coerce this em- ployee in the exercise of his Section 7 rights. Ross- more House, supra. The judge found that in the preelection employ- ee meetings the Respondent neither threatened in- evitable strikes, plant closure, or loss of benefits nor implied that the employees' selection of the Union as collective-bargaining representative would be futile. However, the judge found that be- tween 27 February and 19 March the Respondent distributed to its employees 10 letters and 13 fact bulletins which violated Section 8(a)(1) in the above respects. In its exceptions, the Respondent contends that these oral and written statements are virtually the same and, when evaluated as a whole, are permissible speech under Section 8(c) of the Act. We find merit in this argument and dismiss all allegations pertaining to the preelection communi- cations. The judge found that approximately 23 employee meetings were held in the plant lunchroom be- tween 3 and 19 March, which were attended by almost all the Respondent's employees. Several of the General Counsel's witnesses stated that during these meetings, the Respondent's speakers informed them that bargaining starts from scratch, and that all benefits would be "frozen" during negotiations. However, employees Carman, Don Wentz, and Atcher conceded that Respondent's attorney Treacy characterized collective-bargaining negotia- tions as "horsetrading" in which the employees could gain, lose, or break even. Don Wentz also stated that, in response to a question whether the UARCO, INC. 57 Respondent would negotiate, Treacy said that it would do so, and that all items were negotiable as bargaining started from scratch. Employee Ke- plinger testified that Treacy said that in bargaining you "give a little" and "take a little." Employee Bates testified similarly. The judge concluded that even if the General Counsel's witnesses were given the benefit of every direct credibility resolution, the Respondent's re- marks at the employee meetings were not unlawful. Thus, he found the Respondent's statements did not constitute threats of economic detriment or threats to engage in regressive bargaining . Rather, the Re- spondent merely informed its employees that bene- fits could be gained as well as lost in negotiations. In the context of all the Respondent's oral state- ments, the judge interpreted the Respondent's use of the word "frozen" to mean only that the Re- spondent would maintain the status quo pending negotiations. The judge found specifically that the Respondent did not repeatedly allude to a record of union-forced strikes, stress the inevitability of a de- structive union bargaining position, or suggest the futility of union representation for the employees. With respect to the campaign literature, the judge found the Respondent threatened employees with strikes in the following statements:5 Before you vote, you are entitled to know how anxious some of your fellow-employees are to cause a strike-and put you out of work. Naturally, strikes are not inevitable . But union- forced strikes do happen. And with the UAW they happen very, very often. We don't want a UAW strike. We won't force one. I'm pretty sure you don't want a strike either. But the UAW has a habit of threaten- ing "Do it our way-or we strike." The judge noted that the Respondent failed to define the term "union-forced" strike and failed to give assurances that the Respondent would bargain in good faith. He concluded that the literature, taken as a whole, unlawfully threatened the em- ployees with strikes. The judge further found that the Respondent threatened employees with plant closure and the futility of selecting a bargaining representative in the following statements. 5 The judge set forth numerous excerpt:. concerning all aspects of Re- spondent's campaign literature in sec . III,C,1, of his decision. The state- ments reproduced here are selections from the judge's excerpts which we believe fairly characterize the general thrust of the Respondent's litera- ture Cleveland Was A Unionized Plant. In Fact, If It Hadn't Been For The Outside Union, We Probably Wouldn't Have Been Forced to Close the Plant-Permanently. The Company now is threatened by the UAW, which has a sad record of closing plants in Kentucky and forcing plants to leave Ken- tucky. We have every confidence that the ma- jority of UARCO people will vote their confi- dence in the Company and avoid the risks to their jobs that could be forced by the UAW. Until a few years ago, Uarco had a plant near San Francisco . It was a unionized plant. It was long, neverending battle. Finally, the strike began . Some of the union demands were for such things as union-type in- surance . . . . We explained, over and over, that we didn't do such things. . . . We ex- plained that in all plants, with or without unions we have the Uarco sick-pay plan. . . . But the union bosses didn't believe us. The strike kept on . . . . But we never gave in. THE PRINCIPLE WAS MORE IMPOR- TANT THAN ANY ONE PLANT. Finally, it got so bad we were forced to close the plant. We moved, as you know, to Roseburg, Oregon. And not one single union member went along. There is no union at Roseburg. What happened? A union trying to prove how "tough" it was, cost the union members their job-permanently. We have never been forced to close a non-union plant. The judge reasoned that the Respondent present- ed the Union as a threat without any explanation other than an alleged "sad record of closing plants in Kentucky," and impliedly predicted dire conse- quences due to the Union's bargaining position. The judge concluded that the Respondent's threats of plant closure were unsupported by demonstrable evidence and violated the Act. He further found that the Respondent gave no assurance in the liter- ature that it would enter the bargaining process with an open mind, rather than a determination to maintain present working conditions. He concluded that the Respondent implied it would enter bar- gaining with a predetermined, fixed position and thus threatened the employees with the futility of selecting a bargaining representative. Finally, the judge found that the Respondent threatened loss of benefits in the following state- ments. 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The outside union keeps saying we can't lose anything if the union gets in. Is this true? NO-BECAUSE IT DOES HAPPEN. LAST FRIDAY YOU READ WHERE THE LAW SAID THIS WAS LEGAL. Ok, so its legal. But has it ever really hap- pened? ABSOLUTELY, RIGHT HERE IN UARCO, FOR EXAMPLE. Has it happened to the UAW? YOU BE THE JUDGE! HERE IS A DIRECT QUOTE FROM THE UAW PRESIDENT AT TELEX-AFTER 11 LOST STRIKE PAYCHECKS: "EVERY TIME WE MET WITH THE COMPANY, THEY'D TAKE SOMETHING ELSE AWAY FROM US1" The judge noted that the statements suggested the employees' loss of benefits without reference to bargaining or any other qualification. Concerning the alleged quotation from the UAW president, the judge found that it lacked supporting context and contained no assurance that the Respondent would bargain in good faith or would not assume a re- gressive bargaining position. The judge concluded that the Respondent's campaign literature, taken as a whole, threatened the employees with loss of benefits and violated the Act. Our dissenting colleague agrees with the judge's conclusions concerning the Respondent's literature and with his finding that a remedial bargaining order is warranted. In evaluating the Respondent's preelection cam- paign, we begin from the premise that the oral and written statements must be construed together to determine their reasonable tendency to coerce the employees. Both the courts and the Board have long held that statements and written materials must be viewed in context and not in isolation. NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941); Nebraska Bulk Transport, 240 NLRB 135, 157 (1979), enfd. in pertinent part 608 F.2d 311, 314-315 (8th Cir. 1979). From this viewpoint, we conclude that the Re- spondent's campaign communications did not vio- late the Act. In this regard, we disagree with the judge's and our dissenting colleague's conclusion that the Respondent's lawful oral communications did not moderate its written statements. As noted above, the judge found nothing threatening or false on the face of the documents. He concluded that they conveyed unlawful threats as a result of the repetition of certain statements regarding strikes and bargaining positions and the absence of context for other statements. In each cdse the judge de- pended on the impact of the literature as a whole to make his finding of violations. We disagree with his judgment in this matter. We find that the litera- ture and oral statements, considered as a whole, are lawful expressions of opinion protected by Section 8(c). The Respondent held numerous employee meet- ings . Employees Carman, Don Wentz, and Atcher each conceded that Respondent's attorney Treacy characterized collective bargaining as "horsetrad- ing" in which the employees could gain, lose, or break even. According to Don Wentz' testimony, Treacy also expressly assured the employees that the Respondent would negotiate. In addition, em- ployees Keplinger and Bates each recalled Treacy's references to the two-way nature of collective bar- gaining. Treacy's repeated oral assurances provided sub- stantial context for the Respondent's campaign lit- erature. The Respondent couched that literature in partisan terms. Mere references to the possible neg- ative outcomes of unionization, however, do not deprive the Respondent's materials of the protec- tions of Section 8(c). See, e.g., Coleman Co., 203 NLRB 1056 (1970) (strikes); American Clay Form- ing Plant, 238 NLRB 1052 (1978) (plant closings); Clark Equipment Co., 278 NLRB 498 (1986) (loss of benefits). As noted, the letters and fact bulletins contain no express threats of any kind, nor do they contain any falsehoods. When considered in proper conjunction with Respondent's oral assurances that it would bargain with the Union and that bargain- ing could go up or down, the literature has no rea- sonable tendency to coerce. We conclude that rea- sonable employees equipped with such assurances would treat these documents merely as part of a vigorous election campaign. We therefore dismiss all allegations of 8(a)(1) threats and inculcations of futility of selecting a representative pertaining to the Respondent's preelection communications. III. THE UNION'S OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION The judge considered 13 objections set for hear- ing in this consolidated proceeding. He found meri- torious Objections 3, 4, 9, and 10,6 and recom- Objections 3, 4, and 9 are phrased as follows 3. The Employer threatened dire economic consequences , includ- ing plant closure , if the Petitioner won the election and predicted a loss of business to the Employer if the Union won the election 4 The Employer interrogated employees concerning protected concerted activities 9 The Employer, through literature and speeches , and otherwise, instilled in employees' minds that collective bargaining is futile and inevitably leads to strikes 10 The Employer issued false and deceptive statements and en- gaged in deceptive practices UARCO, INC. 59 mended that the election be set aside on those grounds. The judge dismissed the remainder of the objections as unsupported by sufficient evidence; the General Counsel filed no exceptions to these dismissals, and the Charging Party excepted only to the dismissal of Objection 11. Our rulings on the unfair labor practices discussed above require the overruling of portions of Objection 3 and of Objec- tion 9 in its entirety. For the reasons set forth below, we also overrule Objection 10 and affirm the judge's overruling of Objection 11. Objection 10 concerns alleged campaign misrep- resentations committed by the Respondent. Citing General Knit of California, 239 NLRB 619 (1978), the judge found that the Respondent engaged in misrepresentations which could not adequately be rebutted by the Union, and concluded that Objec- tion 10 was meritorious. After the judge issued his decision, the Board adopted a new standard for evaluating campaign propaganda. Objections based on the truth or falsity of the parties' campaign statements are no longer grounds for setting aside an election. Midland National Life Insurance Co., .263 NLRB 127 (1982). Accordingly, we dismiss Objection 10.7 With respect to Objections 3 and 4, we have adopted the judge's findings that Hobbs' threat of plant closure violated the Act, and that Maynard's interrogation of Hanley was unlawful. In the over- all circumstances of this case, we conclude that these unlawful acts constitute objectionable con- duct affecting the election8 arid, on this ground, we accept the judge's recommendation to set aside the election. IV. THE RECOMMENDED BARGAINING ORDER The judge found that the Respondent's unfair labor practices rendered the holding of a second election futile and could adequately be remedied only by the issuance of a bargaining order. This finding was based principally on the judge's con- clusions concerning the Respondent's campaign lit- erature. As we have found nothing unlawful in that literature, the major basis for the judge's recom- mended remedy has been eliminated . The only re- maining unfair labor practices are one interroga- 7 We affirm the judge 's dismissal of Objection I I concerning alleged misrepresentation of Board processes The judge found that the Respond- ent posted numerous photocopies of purported unfair labor practice charges filed against the Union with the Board The Union conceded that the documents were not forgenes The judge found no misrepresentation and dismissed this objection In R:veredge Hospital, 264 NLRB 1094 (1982), the Board decided that mischaracterizations of Board actions are to be treated in the same manner as other misrepresentations On this ground we affirm the judge's ruling 8 We note that the Respondent also unlawfully solicited grievances and unlawfully assisted a labor organization during the election campaign, but these unfair labor practices were not alleged as objectionable conduct tion, one threat of plant closure, the unlawful solic- itation of grievances, the unlawful dominance of and assistance to a labor organization, the postelec- tion remedying of employee complaints, and the postelection refusal to recall a union activist. We find that the preelection unfair labor practices are not sufficient to require the extraordinary remedy of a bargaining order. We conclude that they are not so pervasive, severe, or lingering in effect to render unlikely the holding of a fair second elec- tion. Nor do we find them and the Respondent's postelection conduct together so egregious to be properly remedied only through the issuance of a bargaining order. Although these unlawful acts suggest, as the judge found, a proclivity to violate the Act, we find that the issuance of a broad cease- and-desist order is a more appropriate remedy than a bargaining order in the circumstances of this case. Accordingly, we shall prescribe the tradition- al remedies for the Respondent's unfair labor prac- tices.9 AMENDED CONCLUSIONS OF LAW The Conclusions of Law shall be amended as fol- lows: 1. Omit Conclusions of Law 2, 3, and 4, and re- number the subsequent Conclusions of Law ac- cordingly. 2. Substitute the following for Conclusion of Law 5 and renumber it. "2. By coercively interrogating an employee concerning his union sympathies, and by threaten- ing an employee with plant closure if the Union were selected as the collective-bargaining agent, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) of the Act." ORDER The National Labor Relations Board orders that the Respondent, UARCO, Inc., Radcliff, Ken- tucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with plant closure in the event that they designate the International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW, or any other labor organization, as their collective- bargaining representative. (b) Coercively interrogating any employee about union support or union activities. 9 In light of this conclusion , we find it unnecessary to address the judge's discussion of the Union 's majority status 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Soliciting and promising to correct and cor- recting employees' complaints and grievances in order to induce employees to reject union repre- sentation. (d) Dominating and interfering with the adminis- tration of, and rendering unlawful assistance and support to, the Employee Committee or any other labor organization. (e) Discharging or refusing to recall from layoff or otherwise discriminating against any employee for supporting International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other Union. (f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise 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) Disestablish and desist from recognizing and dealing with the Employee Committee as the rep- resentative of any employees over employee griev- ances, rates of pay, wages, hours, or working con- ditions. (b) Offer Martha Langdon immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision, except that interest will be comput- ed in the manner prescribed in New Horizons for the Retarded. 10 (c) Remove from its files any reference to the unlawful discharge of Martha Langdon and notify her in writing that this has been done and that the discharge will not be used against her in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at Radcliff, Kentucky plant copies of the attached notice marked "Appendix."" Copies of 10 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 11 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 notice, on forms provided by the Regional Di- rector for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) 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 allegations of unlawful conduct not found to be violative of the Act shall be dismissed. IT IS FURTHER ORDERED that the election in Case 9-RC-13255 is set aside. [Direction of Second Election omitted from pub- lication.] MEMBER STEPHENS, dissenting in part. I dissent from my colleagues' reversal of the judge's findings and conclusions that the Respond- ent's preelection written communications with its employees constituted unlawful threats of strikes, loss of jobs and benefits, plant closure, and the fu- tility of unionization and that it thereby violated Section 8(a)(1) of the Act. Like the judge, I would find that a number of the Respondent's letters and "fact bulletins" issued to its employees during the campaign violated Section 8(a)(1) in the foregoing respects, even taking into account the Respondent's entire campaign, including its somewhat more moderate oral presentations. As the judge found, the oral presentations did not "substantially negate" the overall coercive impact of the written state- ments, which were distributed to all employees and posted on bulletin boards throughout the Respond- ent's Radcliff, Kentucky plant. The majority opinion sets out what it accurately describes as selected excerpts from the Respond- ent's literature that "fairly characterize the general thrust of its campaign." I agree with the majority's approach insofar as it examines the overall impres- sion created by the campaign literature, in contrast to considering the various pieces of the Respond- ent's literature on an isolated, individualized basis. From the latter perspective, no one letter or bulle- tin here contains an explicit threat, nor does any single document necessarily contain an implicit one. But on viewing the documents in toto-as the Re- spondent undoubtedly intended the employees to view them-including the excerpts quoted by the the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " UARCO, INC. 61 majority and other similar unquoted passages, I conclude that they go well beyond "[m]ere refer- ences to the possible negative outcomes of union- ization." Rather they make veiled suggestions of plant closure and job loss that are unlawful under the test set out in NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619 (1969); and they suggest that any improvements in the employees' working condi- tions once the Union is voted in will bear the price of a "union-forced strike." With respect to the threats of plant closure and job loss, the following statements-contained in lit- erature distributed between 10 March and 19 March (2 days before the 21 March election) are especially telling: CLEVELAND WAS A UNIONIZED PLANT. IN FACT, IF IT HADN'T BEEN FOR THE OUTSIDE UNION, WE PROB- ABLY WOULDN'T HAVE BEEN FORCED TO CLOSE THE PLANT-PER- MANENTLY. [Fact Bulletin #5, 10 March] James B. Brown, Vice President of UARCO, said: The Company now is threatened by the UAW, which has a sad record of closing plants in Kentucky and forcing plants to leave Kentucky. We have every confidence that the majority of UARCO people will vote their confidence in the Company and avoid the risks to their jobs that could be forced by the UAW. [12 March letter] UARCO PLANTS. Work is slowing up at the UARCO plants in Paris, Texas, in Deep River, Connecticut, in Toccoa, Georgia and in Roseburg, Oregon. They all do the same work we do. They would all be glad to get our work. They are all nonunion. [17 March letter] 1. Question: What has UARCO done at Rad- cliff? FACTS: MADE OVER 200 GOOD, SECURE JOBS. 2. Question: What can the UAW do? FACTS: DESTROY THESE JOBS- INCLUDING YOURS! [Fact Bulletin #12, 19 March; emphasis in original] At no time, in either its written communications or its oral communications, did the Respondent suggest any reason why the mere fact of the Cleve- land plant's being unionized should cause the Re- spondent to close it or why the mere existence of the Union as a bargaining agent should "threaten" the Radcliff plant. As the judge noted, the Re- spondent had no evidence of what the Union's bar- gaining position would be at the Radcliff plant and as the reference to the "sad record of closing plants in Kentucky" was made without any explanation of the bargaining positions or surrounding circum- stances in those instances, a reasonable inference was that the Respondent might close a plant simply because it did not want to operate a unionized plant. Similarly, the possibility of "job destruction" is presented in the final "fact bulletin" as something that the UAW may simply "do." The Respondent had previously suggested, in its 17 March letter, where it might send the work of the employees whose jobs were thus destroyed-to its nonunion plants in four other States, who would be "glad to get our work." These assertions are not the kinds of "carefully phrased" predictions based on "objec- tive fact to convey an employer's belief as to de- monstrably probable consequences beyond his con- trol" which the Court in Gissel regarded as mere truthful communication under Section 8(c). NLRB v. Gissel Packing Co., supra, 395 U.S. at 618. Rather these statements carry the "implication" that were the employees to select the Union as their bargain- ing representative, the Respondent might close the plant and transfer out jobs "solely on [its] own ini- tiative for reasons unrelated to economic necessi- ties"-statements of the kind that the Gissel Court regarded as implicit threats of retaliation, in viola- tion of Section 8(a)(1) of the Act. Ibid. Accord: National Micronetics, 277 NLRB 993 (1985) (no ob- jective facts showing that unionization would cause plant to become unprofitable); Continental Radiator Corp., 283 NLRB 234 (1987) (plant would move south for "cheaper labor" if union were elected).' An equally coercive message is discernible in the Respondent's repeated references to strikes, which it presented almost exclusively as strikes that the Union would "force" on the employees. The Re- spondent's message regarding strikes included the following statements excerpted from letters and "fact bulletins" distributed between 5 March and 18 March. 3. Some people seem to think that if this particular union threatens us with a strike, we will cave in and surrender. Please, don't let this outside union force you and your Company into a knock-down and drag-out fight! Because if you let them do this, you can lose, your Company can lose-the only one that doesn't lose is this outside union! [5 March letter; emphasis in original] [In answer to a question whether an employer had ' Compare Kawasaki Motors Mfg Co, 280 NLRB 491 ( 1986) (predic- tions found lawful where employer presented to employees detailed fi- nancial data to substantiate its prediction of the impact of unionization) 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever taken benefits away from employees who chose to be represented by the Union]: FACTS-YOU BE THE JUDGE! HERE IS A DIRECT QUOTE FROM THE UAW PRESIDENT AT TELEX-AFTER 11 LOST STRIKE PAYCHECKS: "EVERY TIME WE MET WITH THE COMPANY THEY'D TAKE SOMETHING ELSE AWAY FROM US!" [12 March letter: emphasis in original] [De- scribing strike in the Respondent's unionized California plant]: Finally the strike began. Some of the union demands were for such things as union-type in- surance, union-type pension plans, union-type sick-pay plans, union-type cost-of-living plans, etc. etc. We explained, over and over, that we didn't do such things. We explained that the unions that were in a part of the Chicago plant and a part of the Watseka plant didn't have such things. We explained that in all plants, with or without unions, we have the UARCO sick-pay plan, the UARCO pension, that we don't have a cost-of-living plan-anywhere. But the union bosses didn't believe us. The strike kept on. The strike cost a lot of money-and lost a lot of business. But we never gave in. THE PRINCIPLE WAS MORE IMPORTANT THAN ANY ONE PLANT! Finally, it got so bad we were forced to close the plant. We moved, as you know, to Roseburg, Oregon. And not one single union member went along. There is no union at Ro- seburg. [14 March letter; emphasis in original] Naturally, strikes are not inevitable. But union-forced strikes do happen. And with the UAW they happen very, very often. We don't want a UAW strike. We won't force one. I'm pretty sure you don't want a strike either. But the UAW has a habit of threatening "Do it our way-or we strike!" [17 March letter; emphasis in original] Suppose UARCO refused to agree to certain UAW demands- 2. Are you willing to be forced on strike to try to get a union-type cost-of-living pro- gram-which UARCO doesn't have anywhere, union or no union? 3. Are you willing to be forced on strike to try to get sick days? UARCO doesn't have them anywhere-union or no union! With a recession-or depression-coming, please think twice before you let someone else decide whether you'll have a paycheck or not! [18 March letter; emphasis in original] The picture presented in the foregoing state- ments is not one that suggests the employees have any possibility of improving their working condi- tions in any way without a strike; and the strike is presented as something that the Union would prob- ably force on them against their will. Although the Respondent concedes in one communication that strikes are not "inevitable" and that it will not "force" one, it nowhere in its written communica- tions expresses its willingness to bargain in good faith.2 The employees are implicitly asked to see the election choice as one between no union and being forced into striking as the price for any im- provement in their lot. The Board spoke cogently to this very point in Boaz Spinning Co., 177 NLRB 788, 789 (1969): In arguing against unionism , an employer is free to discuss rationally the potency of strikes as a weapon . . . . It is, however, a different matter when the employer leads the employees to believe that they must strike in order to get concessions. . . . When an employer frames the issue of whether or not the employees should vote for a union purely in terms of what a strike might accomplish, [it] demon- strates an attitude of predetermination that bar- gaining itself will accomplish nothing. . . . Policy considerations dictate that employees should not be led to believe, before voting, that their choice is simply between no union or striking. In addition, it is noteworthy that in the excerpts from the 14 March letter concerning the shutdown of the California plant and the move to Roseburg, Oregon, the Respondent combined the themes of job loss and its intransigence in the face of a strike, even though, as the judge found, the testimony of the plant's manager revealed that the shutdown of the California plant was at least in part the result of factors unrelated to strikes or a unionized work force (high state taxes, maintenance costs of the building, and an unsafe location). Thus, the Re- spondent's own evidence refuted the impression it sought to give its employees-that the mere pres- ence of a striking union alone caused the shut- down. Taken together with the other statements quoted above, this letter implicitly warned employ- ees that a vote for the Union would be a vote for a bargaining stalemate during which employees 2 Compare Agri-International Inc, 271 NLRB 925, 926 ( 1984) (when employer's speech describing union 's strike history not unlawful when employer's expressed willingness to bargain in good faith was "integral part" of the speech) UARCO, INC. would be forced out of their jobs either during lengthy strikes or permanently. Finally, I take issue with niy colleagues' view that various oral assurances to the employees by the Respondent's attorney William Tracy created a "context" that eliminated from the literature any reasonable tendency to coerce. As already noted, the written communications were distributed to ev- eryone in the 200-employee unit and posted on em- ployee bulletin boards throughout the plant, so they were continuously on view from 27 February up to the time of the election. Treacy's oral state- ments were made at a series of meetings attended by no more than 35 employees at a time. Although almost all the employees attended at least one meeting, some did not remain for the entire meet- ing. Thus, it is not clear that all employees were exposed to oral assurances that collective bargain- ing was a two-way process and that the Respond- ent for its part would negotiate in good faith. Fur- thermore, this is not a case in which the Respond- ent initially issued coercive communications and then retracted them by subsequent statements. Rather, as the judge aptly noted, the Respondent continued throughout the preelection period to issue its written depictions of what amounted to "inevitable bargaining collapse and strike and re- sulting economic loss." When, as here, the evi- dence does not show that all those exposed to the coercive statements were also exposed to the al- leged oral retractions and when the evidence does show that the unlawful statements continued una- bated even after alleged retractions, I cannot con- clude that coercive communications were "effec- tively retracted in a manner which would cure [their] coercive effect." Atlas Microfilming, 267 NLRB 682 fn. 2 (1983), enfd. 783 F.2d 313, 316 (3d Cir. 1985) (company president's letter and his oral statements that the plant would not close as a con- sequence of unionization found not to cure unlaw- ful plant closure statements by supervisor when president's remarks were made to only a few em- ployees and the supervisor continued to make the plant closure threats after the letter was sent).3 Essentially for the reasons stated in the judge's opinion, I would grant the bargaining order. As he pointed out, the Respondent not only engaged in preelection unfair labor practices of a type likely to leave a lasting impression on the employees, but it continued even after the election to engage in con- duct calculated to thwart any future union cam- 8 Furthermore, as the judge in this case noted in the course of justify- ing his recommendation of a bargaining order, "the fine points of bar- gaining" included in the attorney's oral presentations were "more likely to be blurred in memory" than the "written references to strikes and plant closures " And, as he also noted, the employee witnesses' testimony regarding the message that they heard confirmed this likelihood 63 paign, namely its discriminatory termination of an active union supporter, Martha Langdon, and its assistance to, and domination of, an "Employee Committee," in violation of Section 8(a)(2) and (1) of the Act. Finally, the most serious conduct was not the action of low-level supervisors but emanat- ed from the plant manager himself and others fairly high in the hierarchy. See NLRB v. Atlas Micro- filming, supra, 753 F.2d at 318-319. 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 you with plant closure if you select as your collective-bargaining representa- tive the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other union. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT solicit and promise to correct or correct your complaints and grievances in order to induce you to reject union representation. WE WILL NOT dominate and interfere with the administration of, nor render unlawful assistance and support to, the Employee Committee or any other union. WE WILL NOT discharge or refuse to recall from layoff or otherwise discriminate against any of you for supporting the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL disestablish and cease recognizing and dealing with the Employee Committee as your rep- 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resentative concerning your grievances, rates of pay, wages, hours, and working conditions. WE WILL offer Martha Langdon immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify Martha Langdon that we have removed from our files any reference to her dis- charge and that the discharge will not be used against her in any way. UARCO INCORPORATED Jane E. Ballenger, Esq. and Donald L. Crain, Esq., for the General Counsel. William P. Treacy, Esq., of Lake Forest, Illinois, and James B. Brown, Esq., of Barrington, Illinois, for the Respondent. Irwin H. Cutler Jr., Esq., of Louisville, Kentucky, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. A hearing in this consolidated proceeding was held on Jan- uary 14-16 and 26-29, February 10-12, March 23-27, and April 7-9, 1981, in Elizabethtown, Kentucky. The unfair labor practice charges in Cases 9-CA-15126, 9- CA-15218, and 9-CA-15277 were filed against Uarco, Inc. (Respondent) by International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW (the Union) on March 27, April 18, and May 12 (amended on June 12, 1980), respectively.' Complaints were issued on May 16 and 27 and June 17, respectively, in those cases. With respect to the representation case, the Union filed a petition with the Regional Director on January 23. On February 8, a Stipulation for Certification upon Consent Election entered into by the parties was ap- proved by the Regional Director. An election was con- ducted on March 21. The tally of ballots revealed that of 206 valid ballots cast, 101 were cast for the Union and 105 against it. On March 27, the Union filed objections to the conduct of the election and to conduct affecting the results of the election. About May 19, the Acting Re- gional Director issued an order that consolidated certain objections for hearing with Case 9-CA-15126. Subse- quently, all cases were consolidated for hearing by order of the Regional Director. At the hearing the General Counsel's motions to amend the complaint in Case 9- CA-15126 were granted. At issue herein is whether the Respondent interfered with employees' Section 7 rights by engaging in a pree- ' All dates hereinafter are 1980 unless otherwise stated lection campaign of coercive conduct in order to inter- fere with the election and to discourage employee activi- ties on behalf of, support for, or sympathy for represen- tation by the Union and thereby violated Section 8(a)(1) and (3) of the Act. Also at issue is whether the Union had attained a majority status prior to the election as evi- denced by authorization cards and whether a bargaining order is an appropriate remedy. The issues also involve certain alleged coercive and discriminatory conduct after the election that constituted violations of Section 8(a)(1) and (3) of the Act. Finally at issue is the status of the Employee Committee, and whether it was a labor orga- nization that was dominated by and unlawfully assisted by the Respondent in violation of Section 8(a)(2) and (1) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to argue orally. Briefs were filed by all parties about June 22. During the trial I denied the General Counsel 's motion to strike the entire testimony of certain Respondent wit- nesses, i.e., supervisors and managers who had, during a hiatus in the proceeding, read segments of the transcript covering portions of the testimony of the General Coun- sel's witnesses that related to conduct of which they were accused, as a breach of my ruling excluding wit- nesses. The General Counsel renews the motion in her brief citing Gossen Co., 254 NLRB 339 (1981). The Board in that case, although not approving of transcript reading as a means of trial preparation, upheld the ad- ministrative law judge's denial of a similar motion. One factor the Board noted was that "the parameters of the sequestration arrangement had not been properly de- fined." The exclusionary order herein did not explicitly refer to nonpersonal interaction or exchange of informa- tion between witnesses. Thus it was silent as to whether potential witnesses were permitted to read newspaper summaries of preceding testimony, of which there was an abundance, and it did not address itself to the extent and manner counsel for Respondent could inform his witnesses of what they were accused in preparation for trial. Moreover, the Board also upheld the administrative law judge in Gossen because he was aware of the alleged breach and evaluated the credibility of the witnesses ac- cordingly. I have considered the fact that Respondent's witnesses Harmon, Hobbs, Maynard, Diania Gail Cle- mons, Richard Franklin, and Kirchman had read the transcripts where in those few instances credibility con- flicts arose in areas of materiality. I reaffirm my ruling. On the entire record, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all times material, Respondent, a Delaware corpo- ration, with an office and place of business in Radcliff, Kentucky (Respondent's facility), has been engaged in the manufacture and sale of business forms. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations, pur- UARCO, INC 65 chased and received at its Radcliff, Kentucky facility goods, products, and materials valued in excess of $50,000 directly from points outside the State of Ken- tucky. Respondent is now and has been at all times mate- rial an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. Background Respondent maintains in the United States 10 business form manufacturing plants and 1 forms handling equip- ment plant, at which plants about 4000 persons are em- ployed. Among the products of these plants are included "unit sets," control punches, continuous forms, and pres- sure-sensitive label products. The Radcliff, Kentucky plant became operative in 1972, and its purpose was to consolidate the manufactur- ing of unit set production from various midwestern plants. Previously, most unit set work was produced at the Chicago, Illinois plant. In February 1980, 310 per- sons were employed at the plant. Among employee clas- sifications are pressmen, collator operators, preparatory department employees, maintenance, material handling, and office clerical employees . In early 1980, the manag- ers were Malcom Bramble, plant manager; David Kirch- man, industrial relations manager (sometimes referred to as personnel manager); Robert Voight, general foreman; and Troy Harmon, material control supervisor as well as a plant accountant and a production planning supervisor. There were also line foremen and group leaders, the latter of whom were not included in the voter eligibility list. Bramble testified that he employed about 28 supervi- sors throughout the plant during the preelection period. In January 1980, organizational efforts were made on behalf of the Union among the Radcliff plant's produc- tion and maintenance employees . On January 9, employ- ees Mike Keplinger, Cleo Letterman, Don Wentz, Maria Mays, and Bonnie Prochaska met with Union Agent Tom Puckett to discuss union representation . They ob- tained authorization cards from Puckett. Thereafter, these and other employees commenced the solicitation of signed authorization cards from the Radcliff plant pro- duction and maintenance employees . On January 23, a representation petition was filed. On February 8, a Stipu- lation for Certification upon Consent Election was ap- proved and, thereafter on March 21, an election was held. The General Counsel alleges and argues that Re- spondent embarked on a course of conduct during the election campaign and thereafter that was violative of the Act. The thrust of Respondent's alleged coercive conduct centers in the literature that it published (luring the elec- tion campaign, and 23 employee meetings it conducted in March. However, the complaints allege a multitude of other unfair labor practices. In order to properly evalu- ate the context of the publication of Respondent's litera- ture and its statements at employee meetings , it will be necessary herein to evaluate first the various individual confrontations between supervisors and managers and in- dividual employees alleged to be violative of the Act. It will also be necessary to evaluate and understand the po- sition of the Employee Committee prior to an evaluation of the Respondent's campaign literature and its state- ments at the employee meetings. B. Employee-Supervisor Confrontations 1. Interrogations-Case 9-CA-15126 a. Paragraph 5(c)-March 1980 interrogations by Supervisors Jerry Corbett, Gail Clemons, and Pat Downs A few weeks prior to the election Foreman Jerry Cor- bett distributed key chains bearing the slogan, "You're No. 1 with Uarco" by folding them with each employ- ee's paycheck that he delivered to each employee. There is no evidence that Corbett made any observation as to what the employee did with the key chain after opening the paycheck. Other campaign materials, such as "Vote No" buttons, were placed by Respondent at foremen's desks and other central locations. There is no allegation that the Respondent engaged in subtle interrogation by the placement of buttons, etc., in the plant. With respect to Corbett's activity, I conclude that it does not amount to subtle interrogation of employees' union sentiments as he did not place any employee in a position of choosing to accept or reject the key chains, nor did he observe what the employees did with them. Farah Mfg. Co., 204 NLRB 173 (1973); McDonalds, 214 NLRB 879 (1974). In Black Dot, Inc., 239 NLRB 929 (1978), the Board held that the mere placement of campaign buttons at central locations in the plant without direct supervisory partici- pation did not constitute election interference. In Tappon Co., 254 NLRB 656 (1981), election interference was found when employees were placed in a position of having to accept or reject a foreman's offer of antiunion T-shirts. Within 2 weeks of the election, Supervisor Diania Gail Clemons distributed Respondent's campaign literature, "Fact Bulletin" to all employees whom she supervised. She asked each whether they had questions about the bulletin . She did not pursue the matter when an employ- ee expressed disinterest in any discussion. She did not question any employee about the employee's union ac- tivities or sympathies. I find her conduct not violative of the Act. There is no evidence that Supervisor Pat Downs inter- rogated employees as alleged in paragraph 15(c). b. Paragraph 5(t)-March 21, 1980 interrogation by plant manager I credit the two General Counsel witnesses who testi- fied as to this incident inasmuch as Respondent's witness, Plant Manager Bramble, did not effectively contradict their certain and convincing testimony. On the day of the election, shortly after 8 a.m., Bramble approached the first-shift "comp" department employees Rita Goodin and Ulla Allen at their work station and ad- 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dressed them jointly wherein he asked them what they were doing wearing "pro union" campaign "T" shirts and buttons and stated, "You don't see any on me." Goodin, who had worn union insignia in the plant for about 3 weeks, protested that she had the right to wear anything she wanted to wear. Bramble then merely broke off the encounter by saying, "OK." There is no other evidence of any interference with employees' wearing of union insignia in the plant by any other man- ager or by any of the 28 supervisors during the entire campaign where throughout such insignia was freely and openly worn in the plant by numerous employees. I cannot conclude that this incident constituted an interro- gation of employees' motivations for wearing union but- tons. I find that it amounted to nothing more than a face- tious, casual observation that was recognized as such by both employees who reacted accordingly, i.e., Goodin with a sharp retort and Allen with an offer of a union button to Bramble. that union representation did not assure that employees would obtain everything they sought but that "in bar- gaining you had to negotiate for everything you got," and that there was a possibility of losing benefits in the bargaining process. Cross, however, had no recollection of how this conversation commenced . She did not effec- tively and explicitly deny the interrogation of Wentz. Al- though I find Cross to have been the more consistent and certain witness as to the balance of the conversation, I credit Wentz as to how the conversation commenced, i.e., by Cross' interrogation of Wentz as to the produc- tion employees' motivations for seeking union representa- tion. In view of Cross' position of authority over Wentz, the fact that Wentz' husband was a known union activist in the production unit, and the lack of any assurances of nonreprisal to Betty Wentz, I conclude that such interro- gation tended to coerce Wentz and was violative of Sec- tion 8(a)(1) of the Act. c. Paragraph 5(h)-March 5, 1980 interrogation by Clerical Supervisor Nancy Cross Betty Wentz is a clerical, nonbargaining unit employ- ee. Her husband Don, an employee in the bargaining unit, was a union activist and is named in the complaint as a discriminatee. During the election campaign Betty Wentz was supervised by Clerical Supervisor Nancy Cross. Betty Wentz testified that about 2 weeks prior to the election she engaged in a conversation with Cross in her work area that was occasioned by Cross' distribution of Respondent campaign literature. Wentz testified that the conversation commenced as Cross asked why she thought the bargaining unit employees needed union rep- resentation . According to Wentz, she responded that to understand the need for union representation, you had to be employed within the plant production unit. Thereafter a discussion ensued wherein, according to Wentz, Cross stated that if the Union were voted in the employees would lose all their benefits and would have to bargain from scratch. On cross-examination, she expanded on this testimony and testified that she told Cross that the unit employees were ill-treated and desired better job securi- ty, pay, and benefits, in answer to Cross' statement that Cross did not understand because she did not work in the production unit. Wentz testified that Cross then told her that even if the Union were designated to represent production employees that the employees would not re- ceive such improvements, and also stated "right out" that "they would start from scratch on bargaining for their benefits." On specific inquiry by Respondent's counsel, Wentz stated that Cross said something further about bargaining. On further probing Wentz testified that she protested to Cross that it was possible for employees to obtain better benefits through bargaining to which Cross responded that indeed it was possible to obtain better benefits from bargaining . Thus, on cross-examina- tion, Wentz did not allude to a flat assertion by Cross that employees would lose all benefits upon the election of the Union. Cross, who was not employed by the Respondent at the time of the trial, testified that she did indeed have a conversation with Betty Wentz wherein she told Wentz d. Paragraph 5(1)-March I and 19, 1980 interrogation by Supervisor Herman Maynard The testimony of press operator Walter Hanley with respect to the March 1 incident is credible and uncontra- dicted. Sometime on or shortly after March 1, Hanley was engaged in a conversation with Supervisor Maynard that was occasioned by regular review of Hanley's work progress report. It took place at Maynard's desk. After Hanley's work was evaluated and the report finished, Maynard asked Hanley whether there was anything else that he would like to talk about. On a negative response, Maynard asked, "Any union business?" Hanley respond- ed, "No, not really." Maynard persisted, asking what Hanley "felt" about the Union. Hanley then set forth what he thought were certain advantages to union repre- sentation. At that point someone else approached and the conversation ended. The questioning of Hanley was effectuated immediate- ly after a review of his work progress and at his fore- man's desk, without apparent justification and without assurances against reprisals. Within such a context the in- terrogation and probing of Hanley's union sympathies by Maynard constituted interference with an employee's Section 7 rights and is a violation of Section 8(a)(1) of the Act. William Jordan, a third-shift strip presser, who active- ly supported the Union, by inter alia, distribution of union literature and the wearing of union insignia on his person, testified that about 3 days before the election his foreman, Supervisor Maynard encountered him at his press and while alone questioned him as to why he thought union representation was necessary, and there- upon elicited a 2-hour recital from Jordan of reasons for union representations that included citations of alleged unfair treatment of employees. According to Jordan, Maynard responded by gesturing upward with his hands and departed. Maynard testified that he indeed did engage in a con- versation with Jordan on about that date during the course of his regular and routine visits through the de- partment. He admitted that during the course of the con- versation they did talk about the Union but he could not UARCO, INC. 67 recall what started the conversation. He testified that he was aware that Jordan had been an active union support- er and that it was his impression that a personal "con- flict" existed between them because of it and that he asked Jordan if there were anything that Maynard did or that the Respondent had done to make him feel mistreat- ed "or something of this nature." Thereupon Jordan re- cited examples of perceived employee mistreatment Maynard testified that the conversation lasted only a quarter of an hour. In testimony, generally Maynard was a quiet, fluent witness. However, when attempting to recount the Jordan conversation he appeared uncertain and discon- certed despite his admission of having read the prior transcript testimony of Jordan. With respect to Jordan, his testimony covered a wide range of topics, and re- garding this incident he exhibited far more certitude and detailed recollection. I do not construe Maynard's testi- mony to constitute effective contradiction of what I con- clude is the convincing testimony of Jordan whom I credit. Respondent argues that Maynard's motivations were based on a desire to maintain a good work relation with Jordan and therefore not "sinister„" and that in any event Jordan was openly prounion. However, Maynard offered no explanation to Jordan as to his reasons for the interro- gation and gave no assurances of nonreprisal. Despite Jordan's open espousal of the union cause, Maynard was not justified in probing Jordan's motivations for such es- pousal . Edgcomb Metals, 254 NLRB 1085 (1981); PPG Industries, 251 NLRB 1146 (1980); Anaconda Co., 241 NLRB 1091 (1979); Paceco, 237 NLRB 399 (1978); ITT Automotive Electrical Products Division, 231 NLRB 878 (1977). 1 find that this conduct violated Section 8(a)(1) of the Act. 2. Threats-Case 9-CA-15126 plant would not close if it were profitable. Hobbs stated that he felt "that they damn sure would move the plant to another location if the Union came in, because the one thing Uarco did not want and hated was the Union." At one point Newton during a persistent cross-examination that attempted to elicit an affirmance to suggestions that Hobbs conditioned his statement on economic demands, answered "yes" to the question Q. All right. Did Frank say to you if the Compa- ny could not meet the union demands, there is a possibility that the plant might close? She immediately attempted to modify that answer but was cut off with another question. When questioned fur- ther and permitted to expand, she reiterated forthrightly and with full assurance her prior testimony and vigorous- ly denied that Hobbs made any reference to bargaining demands or union demands, or greater costs due to union representation. I credit the testimony that Hobbs threat- ened plant closure in the event of the Union' s designa- tion as bargaining agent because Respondent could not "stand" and "hated" the Union. Standing alone, or taken within the context of other discussions of plant closure during Respondent-conducted meetings and within con- text of Respondent literature discussed elsewhere in this decision, such a statement was clearly coercive, and con- stitutes a violation of Section 8(a)(1) of the Act. c. Paragraphs 5(1)(i) and (m)-March 8 and 19 threat of Supervisor Maynard and Foreman Robert Voight of loss of benefits and poorer working conditions These allegations were added by oral amendment at the hearing on January 26, 1981. There is no reference to these incidents in the briefs, and I find no probative record evidence in support of these allegations. a. Paragraph 5(i)-threats of discipline by Supervisor Pat Downs on March 11, 18, and 19 This allegation will be discussed within the context of other allegations in the complaint, e.g., the issue involv- ing distribution of union literature in the plant. b. Paragraph 5(j)-March 19 threat to employee of plant closure by Supervisor Frank Hobbs It is press inspector Joyce Newton's credible testimony that on March 19 she engaged in a conversation with her supervisor, Foreman Frank Hobbs, wherein they dis- cussed at his desk mutual economic problems, e.g., house mortgages, etc., and wherein Hobbs stated that he was worried about his job and that the plant was not earning as much as employees thought.2 Newton had asserted that she was not worried about her job because she felt the plant was profitable and that the employees had been told that there had been an improvement in earnings. Hobbs laughed and Newton reasserted that she felt the 2 Hobbs testified only that he could not "recall" any conversation with Newton despite having read Newton's testimony herein I reject his un- certain testimony as not constituting an effective contradiction of the more certain and convincing Newton 3. Surveillance-Case 9-CA-15126 a. Paragraphs 5(e) and (g), surveillance of employees' union activities on and after February 12, 1980, by Supervisors Morrie Adams and Gail Clemons Bonnie Prochaska was employed in the preparatory department on the first shift with 25 other employees. Her supervisors were Moorie Adams and Diania Gail Clemons during the time material. Maria Mays was em- ployed as a vault clerk in the comp department and was supervised by Clemons who was on the first shift during the same time period. Both employees were active on behalf of the Union and wore union insignia. They, with other employees, handbilled fellow employees with prounion leaflets. Prochaska was involved in the Febru- ary 12 employee handbilling inside the plant door that is discussed more fully with respect to another complaint allegation. Both employees testified that they have need during the course of their duties to travel to various parts of the plant. Both testified that after their engage- ment in union activities and before the election they were followed throughout their travels by their supervi- sors who stared at them wordlessly and without explana- 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion. There was no evidence that they were engaged in any union activities when they were followed . Both wit- nesses' demeanor revealed a lack of certitude and confi- dence with respect to these incidents . Mays testified that at one point she and Prochaska discussed their mutual impressions and wondered whether their imaginations may have been overactive . I conclude that their testimo- ny is too generalized and impressionistic to support these allegations of the complaint. b. Paragraph 5(k)(i)-creation of impression of surveillance by recording the names of employees in attendance at voluntary antiunion meetings conducted by Respondent About March 3-5, 11-13, and 17-19, the Respondent held a series of voluntary employee meetings at the plant during work hours presided over by a panel consisting of the plant manager, personnel manager, and industrial re- lations manager and Respondent's attorney. These meet- ings are more fully discussed elsewhere herein. Both prounion and antiunion employees attended the meetings. For each meeting a seating chart was composed by Per- sonnel Manager David Kirchman pursuant to Industrial Relations Manager Brown's instruction. On the chart, each attending employee's name was inserted on the ap- propriate corresponding location on the seating chart by Kirchman . The purpose , as testified to by Kirchman, was that the Respondent's panelist might more easily address or respond to an individual employee by utilizing his name as ascertained by looking at the chart . However, these charts were not destroyed after each meeting. They were retained by Kirchman along with his notes that reflected the remarks, in part, of the participating employees. These notes are cryptic and generally allude to employee work problems and complaints raised at the meetings attributed to employees by first name. These notes do not reflect a systematic recordation of anti- and prounion employees . The Respondent has held employee meetings in the past and has similarly utilized seating charts and taken notes of employee complaints . I cannot conclude that the evidence supports a finding that the maintenance of a seating chart by Kirchman accompa- nied by cryptic notes tended to give employees the im- pression that they were under surveillance as to their union activities and sympathies. The evidence reveals that the Respondent did, howev- er, under Plant Manager Bramble 's direction, maintain lists of pro- and antiunion employees in that it instructed its foremen to make weekly reports as to those employ- ees whom they perceived maintained union sympathies, those who were prorespondent, and those who were un- decided . From those reports that commenced 4 weeks before the election Bramble calculated the Respondent's likelihood of election success. This conduct was not al- leged as violative of the Act and I conclude not fully liti- gated. There is no reference to it in the General Coun- sel's brief. Moreover, there is no evidence employees were made aware of these lists as was the distinguishing factor in Electri-Flex Co., 228 NLRB 847, 864 (1977). 4. Restrictions on union activity-Case 9-CA-15126 a. Paragraphs 5(1)(U) and (K)(d)-no-distribution rule; and enforcement Paragraphs 5(K)(iii), 6(i), and 5(d) The complaint alleges that about February 12, Person- nel Manager David Kirchman orally promulgated and since maintained an overly broad no-distribution rule that prohibits employees, during nonwork time, from distrib- uting handbills in the area of the employee entrance, an alleged nonworking area. During the preelection period employee union activists distributed literature outside the plant and inside the plant in the lunchroom and in the restrooms. The Re- spondent did not interfere with this activity. However, on February 12 at 7:30 a.m. before the commencement of the first shift at 8 a.m., first-shift employees Bonnie Pro- chaska, Micahel Keplinger, and Donald Wentz posi- tioned themselves inside the employee plant entrance in an aisleway that is adjacent to the shipping and receiving area and also near the paper roll storage area. They dis- tributed union literature to employees entering the door- way and walking through the aisle. During this time the midnight shift was still in operation and was scheduled to stop at 8 a.m. At 7:45 a.m. several employees were seen standing and reading the leaflets in the aisleway by Troy Harmon, shipping and receiving supervisor, who in turn instructed one of the hyster drivers (who operated the pickup vehicles that transport the raw paper supplies in the area) to be cautious of those employees and to shut down his vehicle 15 minutes before the hour. On February 12, there were two hysters in operation. At other times there were three or four. Shortly afterwards Kirchman instructed the employees to leave inasmuch as he considered the point of distribution to constitute a work area and the employees protested that they did not consider the area to be a work area but they left. On March 17, Keplinger, Wentz, and first-shift employee Ken Parisean again attempted distribution in the same area about the same time. They were ordered to stop by Kirchman and Supervisor Pat Downs under threat of discipline. They protested and departed. No discipline issued. About 3 or 4 weeks before the election, third-shift em- ployee Billy Vessels attempted to distribute literature in the same area near the door during his nonwork time shortly before his shift started and was ordered to cease by Supervisors Maynard and Downs. He attempted to do so again on March 18 or 19 at 4:05 a.m. during his unpaid lunchbreak at the same place. The lunchbreak for the shift was 4 to 4:30 a.m. Downs and Maynard again ordered him to stop because it was a work area. Vessels refused. He was called insubordinate and told that he would be disciplined. Subsequently, Vessels inspected his personnel file and found two notations therein reflecting what had transpired at the backdoor. No other discipline issued. The Respondent operates several hyster vehicles that retrieve paper from the storage area near the entrance aisleway and deliver paper to the production areas and that retrieve supplies from shipping and receiving. These UARCO, INC. 69 vehicles do not operate during the 15 minutes at the end of each shift and in the 10 minutes at the beginning of each shift as a safety precaution in order to avoid the sharing of the aisle with pedestrian traffic. They also do not operate during each 30-minute lunch period on each shift. The General Counsel offers no argument in support of this complaint allegation but from the nature of the cross-examination it would appear that the General Counsel is in accord with the argument advanced by the Charging Party that the point of distribution, inside the entrance door, is not a work area despite evidence that hyster vehicles sometimes enter the aisleway near the point of distribution, but that in any event there was no evidence of hyster activity in the area at the time of dis- tribution. I conclude that there is sufficient evidence on which to conclude that hyster vehicles entered the aisleway sufficiently close to the point of distribution with enough regularity during the course of the day so that the point of distribution was in fact a work area during those occasions. Thus the hyster drivers were for- bidden from operating at those times, shift breaks and lunch periods, when pedestrian traffic was likely to occur. Moreover, leaflet recipients were apt to stop and read the leaflets at points of travel extending into the hyster path and thus be distracted from these oncoming vehicles. The employees attempted to distribute leaflets at a time that did not coincide with the cessation of op- eration of hyster vehicles. But in any event I conclude that the area itself was a work area, as would be the pro- duction area during any hiatus of work activity. The Board has held that "an employer may forbid distribu- tion of literature in work areas at all times so that the employer can keep work area of the plant orderly and clear of litter." Contract Knitter, 220 NLRB 558, 560 (1975). 1 therefore conclude that the Respondent did not violate the Act by Kirchman's prohibition against distri- bution in the aisleway near the employee entrance as that area constituted a work area by virtue of its proximity to the travel path of hyster vehicles. Vapor Corp., 242 NLRB 776, 790 (1979). Accordingly, I conclude that the Respondent's enforcement of Kirchman's order by threats of discipline and by disciplinary action were not violative of the Act. b. Other restraints on employee conduct paragraph 6(c)-February 12 and March 20 discriminatory restriction on prounion employees ' movement in the plant and restriction on prounion employees' communication with other employees during non work time and non work area The General Counsel did not submit argument in sup- port of this allegation. At the hearing when ordered to identify the agents of Respondent who ordered such re- striction, counsel for the General Counsel stated that it involved primarily Gail Clemons and Moorie Adams, but also named were Robert Voight, Charles Lewis, Herman Maynard, Jesse Corbett, Charles Lewis, David Kirch- man, and James Keplinger. Assuming that the alleged surveillance and proscrip- tion of distribution discussed above was intended to form part of the basis of this allegation, I need comment no further as I have found no merit with respect to those allegations. The record reveals other areas of possible bases for this allegation. The Charging Party argues that employee William Jordan was restricted from speaking to fellow employees during work hours. Jordan, at the material time, was a third-shift presser who raised several complaints at the employee meeting conducted by Respondent. According to Jordan, he en- tered the plant while off duty on a Thursday, a week before the election to pick up his paycheck. He wore a union button at the time. He stopped to speak to employ- ee Joyce Newton, an inspector who was on duty at a certain assigned press, and he engaged her in a conversa- tion after which he was approached by General Foreman Robert Voight and told not to speak to anyone in the plant with no further comment. However, when con- fronted with his affidavit, Jordan admitted that what he was in fact told by Voight was that he could not talk to anybody when he came into the plant because he was stopping them from doing their job. Off-duty employees are normally prohibited from traveling about the plant, and are not permitted in the plant except to pick up pay- checks, or to proceed to the lunchroom if they arrive early in advance of their shift. There is insufficient evi- dence to find that Jordan was treated disparately because of his union activity, or that he was prohibited absolutely from any in-plant conversations that did not interrupt employees at work. Maria Mays, the comp department employee involved in the surveillance allegation, also testified confusedly and hesitantly about a purported attempt to restrict her conversations with other employees within her own de- partment. She testified that at no time during her travels outside of her department was there any attempt to inter- fere with conversations with other persons, nor was she ever warned during the union campaign against talking with anybody. However, she testified when asked, how her supervisors, Clemons and Adams, attempted to inter- fere with her conversations with other comp department employees, as follows: Every time I went into the Comp Department to take work, they would just stand there and if I stood in one place too long, they would come and ask me if I had a problem. She explained that this occurred whenever she stood with another employee, i.e., the employee to whom she was delivering work. She testified that only "sometimes" was she required to converse with the other employee about work. She thereafter testified that Clemons did not "always" come up and ask if she had a problem, but that "sometimes she did and sometimes she'd just stand there and watched," I find the testimony of Mays too general- ized and ambiguous to support a finding that Respondent precluded her from conversing with fellow employees. Moreover, her extraordinary display of lack of certitude in demeanor causes me to reject her testimony on its face. Employee Vessels testified that sometime during the week of the election he and nine other employees were 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the lunchroom reading campaign materials posted by the Respondent from 12:30 a.m. until 2: 15 a.m. despite the fact that his shift commenced at midnight. Vessels' Foreman Downs came in and ordered all of them back to work. Vessels testified that he later saw a notation in his personnel file that reflected that Vessels and the other employees spent 2 hours reading the campaign ma- terial. There is no evidence that Vessels, a prounion ac- tivist, was treated disparately by Downs. There is no evi- dence as to whether the other employees were or were not subjected to discipline. There is no evidence that all the other employees were predominantly union activists. I cannot conclude that Down's attempt to get 10 em- ployees back to work constituted interference with pro- tected activities, nor that he treated Vessels discriminate- ly because of his union activities in this regard.3 Vessels testified that about 1 week before the election he was engaged in a conversation with employee Tim Atcher, who worked on the neighboring press. Vessels testified that he left his own press running while he walked over several feet to talk to Atcher who was ad- justing his own press in order to get it to run. Vessels acknowledged that it is important for a pressman not to leave his press unattended. While Atcher worked on his press, Foreman Dan Russo came up and told Vessels to quit talking and to do his job. Vessels was not engaged in conversation concerning the Union. It was apparently a social conversation. Vessels testified in general terms that there is no rule against talking to fellow employees. There is insufficient evidence on which I can conclude that similar type conversations have been knowingly tol- erated prior to the union campaign. I do not consider Russo's conduct unreasonable, particularly in view of Vessels' history of past warnings for poor work perform- ance. Accordingly, I do not find that the Respondent re- stricted Vessels' communications within the plant be- cause of his union activities. The only other arguable incident involving restrictions of employee movement and speech, except for the assist- ant personnel manager's innocent cautionary parking lot warning to Martha Langdon that is discussed elsewhere herein, involves the events of March 20. On that day the election was originally scheduled to have been held, but the Board agent did not appear at the scheduled time. Third-shift press operators who had waited to vote after their shift ended were purportedly restricted in their movements and communications during the period when Respondent was attempting to ascertain why the Board agent had not appeared. The General Counsel and Re- spondent witnesses testified that confusion reigned that morning. The election, of course, was conducted the next day. Third-shift press operator Jesse Bates testified that he was among some third-shift employees who were told to leave the plant and return later, and who, in fact, re- turned at 9:30 a.m. and went into the lunchroom where they waited for about 1 hour. Bates testified that some 3 The complaint, par 5(a), alleges that on February 20 Respondent placed a disciplinary writing in the personnel file of employee William Vessels However, Vessels' testimony reveals that he received only the notations for the cafeteria incident and the lunchroom incident in the preelection period and that they occurred in March auxiliary third-shift employees, however, were permitted to work, but that he did not ask for permission to work. He testified that no one told him that he could not leave the lunchroom, but that whenever he left to go out for something, e.g., a soft drink at another vending machine, Supervisor Corbett told him to return to the cafeteria be- cause he did not want the third-shift employees wander- ing in the plant when not working. William Jordan testified that he also was in the group of third-shift pressmen waiting in the lunchroom. He tes- tified that they were "not allowed" to leave the lunch- room. He explained that he tried to leave the room on one occasion for the purpose of talking to working first- shift pressmen when he encountered Supervisor Voight who told him to stay in the cafeteria until it was decided whether the election would be held. In general terms, without explication of context, he testified that on other occasions when not "on the clock" he entered the plant and talked to pressmen. I cannot conclude, based on the foregoing evidence, that the Respondent treated prounion activists in a dis- parate manner by restricting their movements or ability to speak to other plant employees. There is insufficient evidence on which to conclude that past practice permit- ted nonworking employees to freely travel about the plant and to converse with working employees. The credible evidence is otherwise. Assuming that the Re- spondent believed that most third-shift pressmen were of a prounion attitude, I cannot conclude that it imposed the foregoing restrictions because of an attempt to inter- fere with protected concerted activities. Obviously, the Respondent had justification to restrict their movements on that morning for the purpose of maintaining a sem- blance of order amidst the confusion arising from the nonappearance of the Board agent. There is no evidence that the same third-shift employees, unlike the press op- erators, who had work available on the first shift and who were assigned work, were known as antiunion ac- tivists. Accordingly, I find this allegation to be without merit. 5. February 25, 1980 verbal warning to employee Donald Wentz-Case 9-CA-15126 Donald Wentz was a first-shift press operator during the time material. He was supervised variously by Fore- man Frank Hobbs, Pat Downs, and Keith Ruel. Wentz was among five employees who originally contacted Union Organizer Thomas Puckett on January 9, and he was among that group of prounion activists who solicit- ed employees to sign union authorization cards and who distributed union literature, including the attempted in- plant distribution of February 12. His union sympathies at least as early as February 12 were well known to the Respondent. The Respondent's work rules provide for bereavement leave for family members but does not extend to neph- ews and nieces. The Respondent's progressive discipli- nary system provides for verbal notification as the first step in a four-step procedure that can result in termina- tion. Employees with excessive absenteeism, i.e., a cer- tain number of days within a prescribed period, are sub- UARCO, INC. 71 ject to discipline. Donald Wentz' supervisor at the time material herein, Charles Downs, had been a supervisor for several years and had enforced Respondent' s absen- tee policy by having issued verbal notifications to 50 em- ployees for breach of Respondent's absentee policy over that period of time. He enforced the policy without ex- ception. On February 20, Donald Wentz took a day of vacation leave. On that day, Todd Clemons, son of Supervisor Diania Gail Clemons, sister to Betty Wentz, died unex- pectedly and tragically. Subsequently that night Clemons was telephoned by Personnel Manager Kirchman. Cle- mons testified that during that conversation she asked Kirchman to tell the supervisors of Betty and Donald Wentz that they would not be in to work the next 2 days, but that nothing was stated as to how their absence would be recorded. Kirchman testified that Clemons in- formed him that the Wentzes would not be in to work because of the funeral and wake and that he told her to tell them not to worry about how to take their time, i.e., whether they wanted to take a vacation or take it as an absence, but that it would be resolved when they re- turned to work at which time they could discuss it with their supervisors. Despite her prior reading of Wentz' testimony, Clemons testified with hesitancy and lack of certitude that she telephoned the Wentzes and spoke with Don Wentz and told him that she had talked to Kirchman and had asked him to contact their supervisors so that they would not be required to make a telephone call. She testified to nothing further in that conversation but did not deny that more was said. Don Wentz testified: My wife said I received a phone call from Gail Cle- mons . . . and that she had been in touch with Dave Kirchman . . . [and] that-we could-if we felt we needed the time off for bereavement, do so and that Mr. Kirchman would take care of it. In view of Wentz' greater certitude in recalling the con- versation, I credit him and find his recollection as to this aspect more reliable than that of Clemens who was in emotional distress at the time of the events and who ex- hibited, understandably, some distress at the time of the trial. I also credit the testimony of Kirchman that was certain, responsive, and convincing as to this incident. I conclude that Kirchman did not authorize Clemons to grant an exception to the bereavement leave policy but that due probably to Clemons' distress, Don Wentz re- ceived a somewhat different message. There is no evi- dence of past exceptions to the bereavement policy. The next morning, according to Kirchman's testimony, he informed the supervisors of the Wentzes that they would be absent that day, Thursday, and would not report until Monday and that the supervisor should dis- cuss with the Wentzes how they wanted to take the time, i.e., an absence or vacation. Kirchman did not recall the name of Don Wentz' foreman at the time, be- cause of a rotation system it is not the same person, but he testified it was the unit press foreman for that shift and Don Wentz' immediate supervisor. Clearly Downs was Don Wentz' foreman. Don Wentz' prior absences for the year had brought him to the point where the additional absences made him liable for disciplinary action. Wentz conceded that he was aware of Respondent's bereavement policy. Subse- quent to his return to work, he received a first discipli- nary warning for these absences from Foreman Downs. Wentz testified that on notification from Downs that he would be receiving a first-step warning he protested that he had been granted permission from Kirchman. Downs, who was not employed by Respondent at the time of the hearing, testified credibly without contradiction on this point that he responded to Wentz that he was unaware of any exception to the bereavement policy granted to Wentz from Kirchman, and that Wentz' absence for be- reavement purposes did not fall within the bereavement policy. Wentz did not attempt to claim his absence as va- cation leave. Thereafter, Donald Wentz received a first- step warning for excessive absence. I conclude that Kirchman did not grant Wentz an excuse from Respondent's bereavement leave policy. There is no evidence that refusal to grant an exception constitutes disparate treatment. Assuming that the Gener- al Counsel is correct in the argument that the Respond- ent maintained a hostility to Wentz because of his union activity, it is unlikely that such exception would have been granted. Despite Wentz' impression of Clemons' telephone message, he was not in fact granted an excep- tion. The first-step disciplinary warning he received thereafter was in accord with past practice and was not disparate treatment. Accordingly, I cannot conclude that he was discriminated against because of union activities. 6. April 9, 1-day suspension of employee William Vessels with pay-Case 9-CA-15218, paragraph 5(b) Employee William Vessels, as noted elsewhere in this decision, was a union supporter whose prounion activi- ties were known to the Respondent. Over several years and prior to his union activities, Vessels had developed a work record that manifested numerous disciplinary warn- ings, including warnings for poor work performance that put his job in jeopardy in late 1979. In early 1980, he continued to receive such warnings. His poor work record is conceded. Early on April 7, Vessels was suspended for the bal- ance of the day with pay, a step-four discipline, by Man- ager Voight who reviewed with Vessels his preceding 13-week work average that was rated at 70 percent and far below his press objective of 86 percent. The only substantive evidence of inconsistent treatment appears to be the treatment accorded press operator Jimmy White who during the campaign wore a "UARCO" button. On return from suspension Vessels testified that Voight told him that during the 4-week period before his suspension he had dropped to a production average of 60 percent (admitted as accurate by Vessels) and that he had better bring it up to 80 percent. Vessels testified that prior to April 7 he had inspected the production records and also the recorded 13-week averages. He testified that Jimmy White was running 37 percent the week before the elec- tion compared to Vessels' 66 percent, and that for other 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD weeks White was in the 40s and 50s. However, Vessels was unaware of White's 13-week average that is the standard period of evaluation. He conceded that when White achieved a 37-percent average White was assigned to a newer, bigger press while Vessels had been judged on his work on his routine, normally assigned press, i.e., his "home press." White did not receive any discipline. However, al- though Vessels had a production rate of 70 percent for the 13-week period ending March 30, the last week of which was 62 percent, White's average was 84 percent. The General Counsel relies on the fact that during the last 5 weeks of the 13-week period White's average was lower than Vessels' average. For the week ending March 23, White's weekly average was 32 and 87 percent for the prior 13-week average. Vessels' averages were 59 and 71 percent. For the week ending March 17, White's averages were 50 percent for the week and 91 percent for 13 weeks, wherein Vessels had 65 percent for the week and 72 percent for the 13 weeks. For the week ending March 9, White had a week's average of 50 per- cent and a 13-week average of 95 percent, where Ves- sels' averages were 61 and 73 percent. For the week ending March 2, White's week average was 78 and 96 percent for the 13 weeks, whereas Vessels' averages were 79 and 73 percent. Vessels worked on his home press, i.e., the press he was most familiar with, more often than did White work on his home press. The General Counsel argues that White's performance was poorer for the same period during which Vessels was evaluated. However, Vessels' own testimony indi- cates he was evaluated and was given discipline based on his 13-week average and because he did not demonstrate progress. Bramble's testimony that the 13-week period is the only evaluation period used for employees is uncon- tradicted and credible. There is no evidence of past work problems of White comparable to Vessels' poor perform- ance. Based on the record, I cannot conclude that Ves- sels was treated disparately and therefore discriminated against because of union activities. I find this allegation to be without merit. 7. April 7 refusal to recall from layoff employee Langdon-Case 9-CA-15218, paragraph 5(a) Martha Langdon began her employment with Re- spondent on April 23, 1979, as a temporary part-time em- ployee, a group of about 10 who were periodically called by Respondent to assist regular full-time employees during peak periods of production. Langdon was utilized on the third shift under Foreman Gary Sharp, Jim Ke- plinger, or Dick Franklin, but she worked directly under section leader Lou Hendley. She was laid off from about January 21, 1980, but was recalled with other laid-off temporary employees on February 19, 1980, and was again laid off with other temporary workers on March 6. It is her credible and uncontradicted testimony that be- tween February 19 and March 6, she had received no complaints of her work and had not missed any work. In 1979, she had missed about 41 hours of work. In October 1979, she was told by Foreman Sharp that her work was excellent. At Christmastime 1979, section leader Hendley told her and her coworker Lowery that they were per- forming work of good quality. She and coworker Lowery were told by Foreman Franklin in 1979 that their work quality was excellent but that their emphasis on quality caused them to be too slow in production. Langdon was not recalled to work in April 1980, ac- cording to Plant Manager Bramble, because of poor work performance. Bramble, however, relied on the judgment of General Foreman Kenneth Gardner as to whether part-timers were to be recalled. According to Gardner, he made the decision to terminate Langdon on April 10, shortly after other temporary employees of lesser seniority were recalled. In the past Langdon had been recalled to work prior to coworker Lowery who had less seniority. Lowery and eight others had been re- called by April 10, Altherton, who was more senior than Langdon, was notified of a recall but she had quit. General Foreman Gardner testified that it is he who decides whether a temporary employee will be recalled, and that he relies on reports from the foremen and sec- tion leaders regarding the employees' work performance, attendance, and general work attitude. These reports take the form of written evaluations in the form of a ranking in preference of temporary employees by the section leaders. He also receives oral reports. On No- vember 29, 1979, Langdon was rated 6 of 12 by Foreman Sharp and 7 of 12 by Foreman Franklin. On January 8, 1980, Langdon was rated 15 of 16 on the second shift by section leader Ratliff and 7 of 11 by section leader L. Hendley for whom Langdon regularly worked on the third shift. Section leader Odell Payton, for whom Lang- don did not regularly work because Payton was on the first shift, rated Langdon on January 8, 1980, as 9 of 11. The only subsequent written rating for Langdon is dated April 11, 1980, and was composed by first-shift group leader Payton, again not Langdon's regular third-shift section leader. The third-shift group leader was Hendley Payton rated Langdon as 10 of 10. There is no explana- tion for the absence of a rating of Langdon in April by any other foreman or group leader, particularly Hendley. As noted, despite or because of Langdon's ratings and work performance and despite her attendance record, she had been recalled in February 1980. In 1979 and again in 1980, Langdon had worked in the finishing de- partment after an earlier transfer from another depart- ment. This transfer was admitted by Gardner to have been in recognition of her superior talent. Coworker Lowery was not similarly transferred. The Respondent contends that Langdon's work dete- riorated so badly thereafter that she was terminated. Gardner testified in a confused, evasive manner with some degree of vacillation concerning the basis for his decision to terminate Langdon. First he testified that he did not need her, but then he testified he did not need her because of his low opinion of her work. The basis for Gardner's opinion in part rests, according to him, on ratings preceding the April 11, 1980 rating; her attend- ance record; and work performance I find this explana- tion not credible in light of Langdon's earlier recall in February 1980, prior to the outset of any union activity, and in light of the generally good earlier ratings by sec- UARCO, INC 73 tion leaders most likely to be familiar with her work, e.g., the third-shift section leader. Gardner testified that his decision was based on three factors: attendance, work performance as revealed by the ratings, and attitude. However, her attendance after her recall in 1980 cannot be faulted and the only rating, i.e., the Payton rating, was admittedly not seen by Gardner until after he had decided to terminate Langdon on April 10, a date he testified on which no precipitating event occurred. Gardner testified that he last discussed Lang- don's work performance with section leader Payton prior to the discharge but that the conversation occurred in late December or early January 1980, before her Feb- ruary recall. He further testified that it was reported to him that since her last pre-March rating Langdon had developed a bad attitude. After some probing and vacil- lation, on cross-examination he testified that this was re- ported by more than one group leader. However, there- after he testified that between the December 1979 and January 1980 conversation with Payton and April 11, 1980, he recalled no complaints about Langdon's work, although he did receive some complaint of Lowery's work during that time. Gardner admitted that there never had been a return from the customer of work per- formed by Langdon despite returns caused by poor workmanship of other temporary employees in 1979 and early 1980. There is no delineation by Gardner, nor any other wit- ness about what manifestation Langdon's bad attitude took and just how he became aware of it. No foreman or group leader testified concerning her work performance or attitude. On the contrary, Langdon worked a high amount of overtime, which Gardner admitted was a sign of positive work attitude. It is clear from the foregoing analysis that Langdon was discharged, not because of any deficiency in attendance or in work performance, but because of some attitude of which the Respondent did not approve. The General Counsel argues correctly that the only evidence of any unusual manifestations of attitude by Langdon during the critical period of time was that of a prounion attitude as reflected by her active participation in union activities despite her noneligibility to vote in the election. Among other activities, Langdon signed an open letter that espoused the union cause and that was addressed and distributed by her and others to fellow employees as they entered the Respondent's plant. No other temporary employees were seen to engage in similar activities. Two days prior to the March 4 layoff Langdon assist- ed Union Organizer Puckett and others in distributing leaflets in the Respondent's plant parking lot. Langdon drifted away from the main road area where the other employees were leafleting to a place near the employees' plant entrance. Assistant Personnel Manager Lewis ob- served her from within, and came out and invited her to return to a place nearer the road where he observed there was less auto traffic and thus less danger of being injured by parking lot auto traffic that was heavy at that shift change time. Puckett observed the conversation from afar and thereafter requested, via employee Wentz, that Lewis come out again whereupon they engaged in a conversation wherein Puckett asserted Langdon's right to distribute literature. According to Langdon, Lewis agreed that she had the right to distribute union litera- ture but he did not want her to be injured by the auto traffic. He did not instruct her to cease distribution of lit- erature. Thus the Respondent became aware of Lang- don's prounion attitude and union activities, and such awareness appears to constitute the only palpable basis for a change in Respondent's preception of employee Langdon's attitude. I conclude that the Respondent's termination of Lang- don is so contrary to its past practice and the reasons of- fered so patently frivolous and insubstantial that I am constrained to conclude that it acted pursuant to another illegal motivation, i.e., her manifestation of a prounion sympathy and activity during an election campaign in which the Union was vigorously resisted. Accordingly, I find that by terminating Martha Lang- don on April 10, 1980, because of her union attitude and activities, the Respondent violated Section 8(a)(1) and (3) of the Act. C. Employee Committee-Case 9-CA-15277 The essential facts concerning the Employee Commit- tee is undisputed and rests on the credible and uncontra- dicted testimony of employee and past committee member Aurelia Bates. The committee consists of em- ployee representatives of each department and shift in the plant and office for a total of about 15 or 16 employ- ee members . The committee has no written constitution or bylaws except for a brief general description typed on Respondent's letterhead . How the committee was cre- ated is unknown . Elections to membership in the com- mittee is noticed by postings on the plant bulletin board that solicit interested candidates to inform the Respond- ent's personnel manager of their interest . Elections are normally conducted in June . Elections are conducted by the personnel manager during worktime . A recent elec- tion was conducted in the finishing department at the foreman's desk by secret ballot, in the presence of a per- sonnel department manager . Similarly conducted elec- tions have been held in a conference room in the finish- ing department. Employees were told by the foremen that they may vote if they wish . Ballots and ballot boxes are maintained in the custody of the personnel director. Monthly committee meetings are noticed on the plant bulletin board and are held in the plant lunchroom. No meeting was held in March 1980 inasmuch as no notice was posted on the plant bulletin board . These meetings, which usually last about 2 hours, are held during work hours and those members who attend outside of their shift times are paid. The committee never meets without the presence of the plant manager and personnel direc- tor. Attempts by committee members to meet and discuss among themselves without the presence of Respondent managers have been discouraged by Respondent. The committee has not met outside the plant independently from Respondent's supervision. During committee meetings, its deliberations and open voting on issues take place in the presence of Respond- ent's managers. The committee chairperson is designated by voting supervised by Respondent's managers. On at 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD least one occasion a personnel manager served as chair- person on failure of the committee to designate a chair- person. All minutes are prepared by the plant manager's secretary who also attends the meetings. Employee mem- bers are given an opportunity to correct the instant draft of the minutes. The first typed minutes are then made available at the foreman's desk. The committeeperson attempts to resolve the employ- ee grievance directly with the foremen. Failing resolu- tion at that level, the committeeperson will present the employee grievance to management at the monthly meet- ings. Individual questions and grievances concerning in- dividual wages, pay raises, step increases, cost-of-living increases, and working conditions have been raised at these meetings and directed to the plant manager for res- olution. Some were resolved and some were not, e.g., Respondent agreed to floormats for employees, Christ- mas favors, and/or an icemaker in the lunchroom. Bates, on behalf of employees in her department, and other members, complained of the lack of a parking lot, and requested construction of a fence or the hiring of a secu- rity guard at meetings in 1979 and early 1980, but was told by the plant manager that it was too expensive. About 1 month after the election, construction com- menced on a parking lot fence and at a committee meet- ing it was announced how and when the gates would be operated. At the preelection series of employee meetings con- ducted by the Respondent in early March, several com- plaints were raised by employees regarding the lack of a parking lot fence. Bramble testified that such persistent complaints have been raised by employees at general plant meetings since 1976, to which Respondent periodi- cally promised to "look into it." In 1977 or 1978, Re- spondent for a time utilized, without apparent success, an outside security service patrol. Bramble testified that within the "last couple of years" Respondent solicited prices on fences, i.e., prior to 1980. However, the prices were considered to be too high and Respondent conclud- ed that a fence would not necessarily solve all the securi- ty problems. During the preelection employee meetings, according to Bramble, employees asked why the Re- spondent did not do anything to correct the lack of park- ing lot security, to which he responded: "We would cer- tainly take a look at it." Bramble testified that "right after the meetings" he solicited bids and arranged for the construction of the parking lot fence. He did not explain why the past decision not to erect a fence was suddenly reversed during the election campaign. During the winter of 1979-1980, Saturday overtime was mandatory. Complaints about mandatory overtime were raised by committee members at the meetings, but Bramble rejected the complaints, stating that the work- load made it necessary. About 1 month after the election at an Employee Committee meeting the Respondent an- nounced that the policy of mandatory Saturday overtime would cease. Thereafter, Saturday overtime became vol- untary. At the April meeting the Employee Committee was in- formed by the chairperson that "it had been decided to form a subcommittee to review the seniority policy." Questions concerning employee security had been raised at the preelection meetings, where one employee asserted that seniority did not count for much. Five employees were voted to serve on the subcommittee, and were given permission by Bramble to hold separate meetings for the purpose of coming up with a new policy. It met twice a week for 3 or 4 weeks in the lunchroom, and lastly with Bramble and Kirchman in an office next to Bramble's office. The subcommittee proposal was reject- ed by Respondent at that last meeting, after earlier pro- posals had also been rejected. On May 14, 1980, Re- spondent posted the following notice in its plant: SENIORITY POLICY TO ALL EMPLOYEES During the employee meetings there were several comments made regarding our seniority policies particularly regarding layoffs or cut backs. A sub committee of the Employee Committee was formed to review the policies for possible revision. To date the Committee and the Company have not reached agreement on a proposed policy revi- sion to present to all employees for a vote. Nationwide business conditions have reached a point where it will probably require a reduction in our work force. Until we are able to bring a proposal to vote, we will use our current policy with the following revi- sions: 1. Work performance will not be a reason for layoff or bumping to a lesser job. 2. People bumped back will take back their accu- mulated seniority on their present job to their new job. This cumulative seniority would count for any future bumping or layoffs, but only previous time in that job would count for shift preference. This change will be retroactive so that anyone previous- ly moved to another job by the Company will not be penalized. Bates resigned her committee position in July 1980 after her reelection by the first-shift employees. At the time of resignation she was working on the second shift and her resignation was precipitated by Personnel Man- ager Lewis' statement to her that first-shift employees had complained that she now worked on the second shift. The Respondent contends that inasmuch as the Em- ployee Committee was an unstructured entity that func- tioned in an unstructured manner that it was not a labor organization within the meaning of the Act. Section 2(2) of the Act defines as a labor organization: [A]ny organization of any kind, or any agency or employee representation committee or plan, in which employees participate and, which exists for that purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, pay, hours of employment, or conditions of work. UARCO, INC. 75 In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the Supreme Court held that the term "dealing with" is not coextensive with the less comprehensive phrase "bar- gaining with." Therefore, the absence of any "bargain- ing" in the usual sense of that word is immaterial. It is well settled that the phrasing of the statutory definition is in the disjunctive. Accordingly, "dealing, with" an em- ployer concerning one (or more) of the matters enumer- ated in Section 2(5) is a function sufficient in itself to constitute an entity as a labor organization within the meaning of the Act. I conclude that the Employee Com- mittee, by meeting with the Respondent in a representa- tive capacity, to present and discuss complaints of condi- tions of employment, in fact did function as a labor orga- nization Bristol Products, 238 NLRB 1695 (1978). Based on the foregoing facts, I conclude that the Em- ployee Committee was and is unlawfully assisted and dominated by the Respondent inasmuch as the Respond- ent totally controls and participates in the mechanics of its election of members, and its meetings. The committee has no operative existence save for the sufferance of Re- spondent. By unlawfully dominating and assisting the Employee Committee since November 1979, the Respondent has violated Section 8(a)(2) and (1) of the Act. St Vincent's Hospital, 244 NLRB 84 (1979); Kux Mfg. Corp., 233 NLRB 317 (1977); Rideout Memorial Hospital, 227 NLRB 1338 (1977). I further conclude that the Respondent violated Sec- tion 8(a)(1) of the Act by promising the Employee Com- mittee members that it would improve working condi- tions by agreeing to establish a seniority subcommittee at a time when a question concerning representation was still pending. I further find that the Respondent violated Section 8(a)(1) of the Act by the elimination of mandato- ry Saturday overtime and the erection of a fence, at a time when a question concerning representation was pending. Clearly the promise to change the seniority system, the elimination of Saturday overtime, and the de- cision to construct a fence were the result not of any predetermined action, but came about in response to longstanding employee complaints reiterated during the election campaign. The utilization of the committee in assuaging these complaints constituted art effort to erode further any support for the Union and to enhance the po- sition of the unlawfully dominated Employee Committee. The Respondent cannot justify its conduct by asserting, as it does, that it was merely doing what it had done in the past, i.e., adjusting complaints by dealing with the committee because the committee itself was unlawfully assisted and dominated. Further, the Respondent cannot argue that because it has a past history of remedying complaints raised outside of the Employee Committee that it merely continued its past practice. The timing of the decision to remedy those complaints of longstanding history and the involvement of the committee can only lead me to believe that they were done for the purpose of destroying any support for outside union representa- tion Particularly significant is Bramble's sudden rush to get a fence erected after a preelection campaign decision that such a fence was too costly. D. Coercive Literature and Statements at Employee Meetings-Case 9-CA-15126, Paragraphs 5(a) and (b) 1. Literature The complaint alleges that during the preelection cam- paign the Respondent distributed literature that threat- ened employees with loss of jobs, benefits, and plant clo- sure and that implied the futility of selecting the Union as bargaining agent. On February 27, the Respondent commenced preelec- tion communication with its employees by means of a series of 10 letters and 13 fact bulletins, which were dis- tributed by foremen and which were posted on bulletin boards throughout the plant and posted at employee en- trances to the plant. The Respondent argues that its literature simply stated (1) a correct statement of the law as to replacement of strikers, (2) that a union at its Cleveland, Ohio plant had played a part in the closing, (3) that the Union herein has struck in seven plants that later closed, (4) that this Union could have a harmful effect at Radcliff plant be- cause of a proclivity to engage in strikes, (5) that unions had played a part in the closing of its Oakland, Califor- nia plant, (6) that the law does not guarantee that with a union benefits cannot be lost in bargaining, (7) that with or without a union a plant may close for economic rea- sons, (8) that the law does not force an employer to sign a contract, and (9) that strikes can and do happen, but are not inevitable. The Respondent cites various Board decisions in sup- port of the propositions that it is not unlawful for an em- ployer to state that strikes happen, that with a strike and loss of customers, a plant may have to close, the steps an employer would have to take as a matter of economic necessity if forced into an uneconomic position by a union, and that work can be subcontracted, particularly in view of Respondent's past history of subcontracting, and that if costs become excessive at one location one so- lution is to move to a less costly area. The Respondent contends that "(1) every assertion that was made as a fact was true, and (2) the Company never said it would take any action of any kind for vindictive reasons, but only that certain actions were possible for solely eco- nomic reasons." The February 27 letter announced the scheduled March 30 election and stated, inter alia: Just about every UARCO person knows how the Company feels about outside unions, we believe most sincerely, that by working together, without an outside union , we can accomplish the best wages, the highest benefits and the most genuine job security-for everyone! From past experience with outside unions , we truly believe that outside unions do not help-but instead they do harm. The letter ended by announcing a series of voluntary plant employee meetings for "free and open discussions" at which employees were urged to make comments and to ask questions. The March 4 fact bulletin stated, inter alia, that "a company is obligated to bargain-nothing more," and 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that an outside union could win an election and "yet not really gain anything at all," and that could happen and "In Fact, It Has Happened Right In Uarco." The March 5 letter stated, inter alia: 2. Some people seem to think that this particular outside union can force UARCO to do things that we have never done-that no other union has been able to force us to do-anywhere! The letter then urged employees not to let "this outside union force you and your Company into a knock-down and drag out fight," wherein only the employees and Company can lose. The letter ended: This is so important-so vital-to the existence of the Radcliff plant-that we'll follow up with more Facts that have to do with the very existence of your job! Yes-But too Many to include In a Fact Bulletin. We'll Put the Facts In a letter. The March 12 letter listed seven plants , their locations, the fact of moving, and loss of jobs in answer to the posed question "-has this same outside union, the UAW, forced companies to close plants?" No context was given for the bare facts noted about the closings subsequent to a strike. During the March preelection period the Respondent posted 14 2 -1/2-by-3-feet-sized posters on the plant lunchroom walls. Each poster con- tained the names of 10 employers and the corresponding number of weeks each employer was subjected to a strike conducted by the UAW. No other facts were de- lineated. The March 12 fact bulletin posed the question: The outside union keeps saying we can't lose any- thing if the union gets in. Is this true? The March 5 fact bulletin stated that "with an outside union" there was a risk of union-forced strikes that the Respondent had experienced. The March 6 fact bulletin purporting to contain a short Supreme Court statement without context stated that "The United States Government And The National Labor Relations Board Do Not Guarantee-That [Employ- ees] Will Lose No Benefits," in answer to the posed ques- tion "If an outside union gets into a plant , doesn't the government guarantee that employees can't lose what they already have?" The bulletin then asserts that em- ployees "can lose with an outside union." There is no reference to bargaining, nor any other qualification to these remarks. However, the March 7 fact bulletin con- tains the following purported cryptic quotation from an NLRB decision: There Is No Requirement In the [Law] That An Em- ployee-after Bargaining Retain All Present Benefits. Nor Does The Presence of A Union Prohibit An Em- ployer From Moving Its Plant Should Economic Con- ditions So Dictate [also], An Employer may Perma- nently Replace Economic Strikers. [John E. Cain Co., 190 NLRB 109 (1971).] The March 10 letter proposed a series of questions that employees ought to ask about the Union, including whether it has had "over a thousand strikers in, say, the last five years," and other questions whether the Union or company "forced" the strikes, and other questions re- garding loss of jobs due to strikers. The March 10 fact bulletin referred to Respondent's Cleveland plant and stated: Cleveland Was A Unionized Plant. In Fact, If It Hadn't Been For The Outside Union, We Probably Wouldn't Have Been Forced to Close the Plant- Permanently. The March 11 fact bulletin alluded to the Cleveland plant and in answer to a posed question whether there were any plants, "this UAW has caused to shutdown," stated The answer given was: No-Because It Does Happen. Last Friday You Read Where The Law Said This Was Legal. In answer to a posed question the bulletin asserted that it "really happened" and "at UARCO." As to whether it happened "to the UAW" the bulletin asserted You Be the Judge! Here Is a Direct Quote From the UAW President at Telex-after 11 Lost Strike Paycheck: Every time We Met With The Company They'd Take Something Else Away From Us! No context was given for that quotation. No assurance was given that the Respondent would bargain in good faith, no assurance was given that the Respondent would not take a regressive bargaining posture. A March 12 letter contained a quotation of a statement by Respondent Vice President James Brown wherein he extolled the virtues of Respondent's benefits at the Rad- cliff plant and then stated: The Company now is threatened by the UAW, which has a sad record of closing plants in Ken- tucky and forcing plants to leave Kentucky. We have every confidence that the majority of UARCO people will vote their confidence in the Company and avoid the risks to their jobs that could be forced by the UAW. There is no explanation in that quotation as to why Brown perceived the Union's future, and as yet undis- closed bargaining position, to have constituted a threat to Respondent's Radcliff operation, other than the reference to an alleged "sad record of closing plants in Kentucky." That reference was made without a context of the rela- tive bargaining positions of the parties in those other plants. The March 13 fact bulletin contained two purported quotations of employee statements at the ongoing series of plant meetings that reflect the desire of one employee to have the option to engage in a strike and the other employee's observation that the Union's power is pre- UARCO, INC. 77 mised on the ability to threaten a strike. The bulletin concludes that Before you vote, you are entitled to know how anx- ious some of your fellow-employees are to cause a strike-and put you out of work. The bulletin contained no quotation from the more than 200 other employees at the Radcliff plant. The March 14 letter stated: Dear Fellow Employee, Until a few years ago, UARCO had a plant near San Francisco. It was a unionized plant. It was a long, never-ending battle. Finally, the strike began. Some of the union de- mands were for such things as union-type insurance, union-type pension plans, union-type sick pay plans, union-type vacations, union-type cost-of-living plans, etc., etc. We explained, over and over, that we didn't do such things. We explained that the unions that were in a part of the Chicago plant and a part of the Watseka plant didn't have such things. We ex- plained that in all plants, with or without unions, we have the UARCO sick-pay plan, the UARCO pension, that we don't have a cost-of-living plan- anywhere. But the union bosses didn't believe us. The strike kept on. The strike cost a lot of money-and lost a lot of business. But we never gave in. THE PRIN- CIPLE WAS MORE IMPORTANT THAN ANY ONE PLANT! Finally, it got so bad we were forced to close the plant. We moved, as you know, to Roseburg, Oregon. And not one single union member went along. There is no union at Roseburg. What happened? A union trying to prove how "tough" it was, cost the union members their job- permanently. We have never been forced to close a non-union plant. The letter did not assure that the Respondent would enter the bargaining process with an open mind, and not with a fixed determination that certain employment bene- fits were nonnegotiable. The letter did not, as of course it could not, set forth what the specific bargaining pro- posals of the Union would be in the event that it became the designated bargaining agent. Moreover, the March 14 letter did not give the reader the advantage of a fuller explanation of circumstances and conditions unrelated to collective bargaining that led to the Oakland plant clo- sure. Robert Trillet, Respondent Watseka plant manager and in 1970 manager of the Oakland plant, testified that the Oakland plant in 1970 was involved in negotiating new contracts with five labor unions in a context of mul- tiemployer bargaining, against a 30-year history of bar- gaining with those unions, and that in 1970 a 5-day strike ensued after purported illegal strikes, work stoppages, and threats to employees occurred. He testified that in view of those circumstances "plus the economics of the plant, the high cost of the plant; also, the area in which the plant was located, which was a safety factor, we felt, to our employees due to the deterioration of the area, these events led us to the determination to stop the oper- ation of the plant." The March 15 letter alluded to the purported state- ment made at a plant meeting that Respondent had moved a certain product line, the E-Z Out product, from its Chicago plant to Radcliff because its Chicago oper- ation was losing money. The letter then observed that it is still running at a loss and that if the Radcliff plant could not make a profit with that product "there are hundreds of towns that would love to have the Radcliff plant. For example, towns in Arkansas, Oklahoma, Mis- sissippi, etc., are constantly trying to get new plants." To the posed question as to what those observations "have to do with this outside union?" the letter responded: Everything. Because if this Union did get in here, and the union caused us to lose even more money, the Company would probably be better off to go somewhere else. The choice is up to you. In light of the entire series of letters and literature that refer to the purported bargaining position of the Union at other plants, this letter clearly puts the reader in the position of not merely deciding on union representation, but on designating a bargaining representative that will take a bargaining stance adverse to the economic viabili- ty of the Radcliff plant. The use of the word "if ' does not place this letter within the realm of mere speculation of what might happen should certain bargaining positions evolve. Rather, the letter contains an implied prediction that dire consequences will occur as a result of the bar- gaining position of the Union that is implied throughout Respondent's propaganda as economically disastrous. Having implied in its foregoing literature that the Union is a strike-prone union, the Respondent again took up the subject of "union forced" strikes in its March 17 letter where it began Naturally, strikes are not inevitable. But union- forced strikes do happen. And with the UAW they happen very, very often. The letter went on to set forth an employer's rights during a "union-forced strike," i.e., the right to hire re- placements for economic strikers, to maintain production, to subcontract unit work to non-Respondent plants where work has slowed and which also "would be glad to get our work." Up to this point there had been no definition by Re- spondent of its term "union-forced" strike, i.e., is it a strike forced by the union hierarchy on its constituency, or a strike forced on the employer by the union hierar- chy in compliance with the desires of its members, or is it a strike forced because of the adamant bargaining posi- tion of a union or a strike forced by a union because of the adamant bargaining position of the employer, or does it encompass strikes in protest of unfair labor practices, etc. The March 17 letter ends by stating: 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We don't want a UAW strike. We won't force one. I'm pretty sure you don't want a strike either. But the UAW has a habit of threatening "Do it our way-or we strike." This letter thus contains a clear implication that if em- ployees designated the Union as bargaining agent, they will end up in a strike forced on the membership. In light of the entire context of Respondent's written propa- ganda, the opening disclaimer does not detract from the basic thrust of Respondent's predictions as to the certain- ty of a strike by the Union herein on its designation as bargaining agent. Furthermore, the letter, like the other letters, does not assure the reader that the Respondent would bargain in good faith, but rather stresses, instead, a readiness to resort to available weapons to withstand a strike, including the power to withdraw unit work from Radcliff. Thus, as the reader was progressively exposed to Respondent's literature, the most reasonable conclu- sion that such person could reach was that the employee would not be voting on the issue of union representation, per se, but rather he would be voting on the issues of necessarily resulting strikes and economic adversity. The March 18 letter contains a purported quotation of a single employee at an employee meeting to the effect that "some people want to bring this outside union in to punish the Company." The letter then sets up several queries on the supposition that the Respondent refused to agree to "certain" UAW demands. The reader is asked whether that person wishes to "be forced" on a strike to obtain a "union type cost-of-living program," or sick days that it stated the Respondent "doesn't have any- where, union or no union." It asks whether employees are willing "to be forced" on a strike to obtain "super-se- niority," or a "union shop," or for compulsory dues de- duction. The letter ended: 40 If You Vote for This Outside Union YOU MAY BE LETTING SOMEBODY ELSE VOTE YOU OUT OF A JOB! With a recession-or depression-coming, please think twice before you let someone else decide you'll have a paycheck or not. Again the letter does not assure employees that the Respondent will negotiate with an open mind regarding the above-referred-to lawful subjects of bargaining. The prediction clearly implied therein is that the Union would make certain immutable demands concerning these subjects that the Respondent had predetermined that it would reject and that would result in a strike forced on the individual and that would therefore result in a loss of jobs. The March 15 fact bulletin stated in answer to the posed question, "Besides a strike, what other force does a union have?" THE FORCE OF A STRIKE IS THE UNION'S MAIN WEAPON. Again, missing is any reference to a willingness to bar- gain in good faith. There is no reference to the ability of either party to persuade through reasoned argument. Rather, in light of prior literature references to a prede- termined adamancy in Respondent's bargaining position and a presumed adamant union bargaining stance detri- mental to Respondent's viability or adverse to Respond- ent's "principle," the fact bulletin, in effect, constitutes a prediction of strikes as the inevitable result of the Union's designation as bargaining agent. In the March 19 letter, Plant Manager Bramble com- menced on a personal note and reflected on certain af- firmative aspects of his labor management policy. He ob- served that in union shops there exists an unfriendly em- ployer-employee relationship "completely lacking in trust." He urged: I don't think you want this to happen here. I know I don't. I feel sure that what you want is a friendly, secure job. I feel sure you want your pay to in- crease on a regular, secure basis. I know you want a feeling of mutual respect. On that same date the fact bulletin stated: More questions-good! And more Facts! 1. Question: What has UARCO done at Rad- cliff? Facts: Made over 200 Good, Secure Jobs. 2. Question: What can the UAW do? Facts: DESTROY THESE JOBS-IN- CLUDING YOURS! Within the context of the totality of Respondent's litera- ture, I conclude that Bramble was not advising employ- ees what might happen in the eventuality of circum- stances beyond Respondent's control but rather he con- veyed the message that what would occur if they chose to be represented by the Union would be a stained, hos- tile work environment for those lucky to survive and a loss of jobs for the less fortunate. Accordingly, Respond- ent's bulletin board poster bluntly proclaimed in large black and red letters. VOTE "NO" FOR "NO" UNION-FORCED STRIKES! FOR "NO" UNION-FORCED DUES! FOR "NO" UNION-FORCED BITTERNESS VOTE "NO" "NO" [X] The foregoing literature was supplemented by the Re- spondent with bulletin board postings that enumerated the benefits the Respondent afforded to its employees through the years 1976 through 1979, and the difficulties the Union encountered in negotiating benefits for em- ployees in other plants during the same time period as re- flected in posters containing about 25 newsclippings re- lating to UAW strikes, bargaining stalemates, and edito- rials reflecting the adverse impact of strikes. On March 18, Respondent placed the following full page advertisement in the local newspaper, The News- Enterprise: UARCO, INC. Open Letter From UARCOINCORPORATED Radcliff, Kentucky Next Thursday, March 20th, there will be a union election in UARCO's Radcliff plant. UARCO employees will decide whether to or not to bring the United Automobile Workers Union (UAW) into their plant. UARCO is deeply concerned-and deeply op- posed to having this outside union in the Radcliff plant. Why? 1. We are not in any way connected with the automobile business-We print business forms. 2. If the UAW tried to force us to accept an automobile-type contract, there is no way we could afford to stay in business here. 3. The UAW has a long and tragic record-right here in Kentucky-of forcing lengthy, vicious and destructive strikes. 4. UAW strikes have driven plants-and jobs- out of Kentucky! UARCO came here eight years ago -intending to stay! The only thought that could drive us away would be economic losses-the kind of losses that the UAW strikes bring with them. If you have friends or relatives at UARCO, please urge them, to vote "NO" this Thursday!-for their own sake. Thank You, Mal Bramble, Manager One of the four cases that the Supreme Court consid- ered in NLRB v. Gissel Packing Co., 395 U.S. 575, 616 (1969), was NLRB v. Sinclair Co., 397 F.2d 157 (1st Cir. 1968), in which the Court of Appeals for the First Cir- cuit enforced a Board order of bargaining within a con- text of coercive preelection employer propaganda. The Court discoursed on the free speech rights of an employ- er and the rights to associate freely of the employees and stated at 618-620: Within this framework, we must reject the Com- pany's challenge to the decision below and the fmd- ings of the Board on which it was based. The stand- ards used below for evaluating the impact of an em- ployer's statements are not seriously questioned by petitioner and we see no need to tamper with them here. Thus, an employer is free to communicate to his employees any of his general views about union- ism or any of his specific views about a particular union, so long as the communications do not con- tain a "threat of reprisal or force or promise of ben- efit." He may even make a prediction as to the pre- cise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstra- bly probable consequences beyond his control or to convey a management decision already arrived at to 79 close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an em- ployer may or may not take action solely on his own initiative for reasons unrelated to economic ne- cessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepre- sentation and coercion, and as such without the pro- tection of the First Amendment. We therefore agree with the court below that "[c]onveyance of the em- ployer's belief, even though sincere, that unioniza- tion will or may result in the closing of the plant is not a statement of fact unless, which is most im- probable, the eventuality of closing is capable of proof." 397 F.2d 157, 160. As stated elsewhere an employer is free only to tell "what he reasonably believes will be the likely economic consequences of unionization that are outside his control," and not "threats of economic reprisal to be taken solely on his own volition." NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2d Cir. 1967). Equally valid was the finding by the court and the Board that petitioner's statements and communi- cations were not cast as a prediction of "demonstra- ble `economic consequences,"' 397 F.2d, at 160, but rather as a threat of retaliatory action. The Board found that petitioner's speeches, pamphlets, leaflets, and letters conveyed the following message: that the company was in a precarious financial condi- tion; that the "strike-happy" union would in all like- lihood have to obtain its potentially unreasonable demands by striking, the probable result of which would be a plant shutdown, as the past history of labor relations in the area indicated; and that the employees in such a case would have great difficul- ty finding employment elsewhere. In carrying out its duty to focus on the question: "[W]hat did the speaker intend and the listener understand?" (A. Cox, Law and the National Labor Policy 44 (1960)), the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevita- bly cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. In this connection, we need go no further than to point out (1) that the petitioner had no sup- port for its basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard, and that it admitted at the hearing that it had no basis for attributing other plant closings in the area to unionism; and (2) that the Board has often found that employees, who are particularly sensitive to rumors of plant closings .. . take such hints as coercive threats rather than honest forecasts. Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amend- ment analysis and that the Board's discretion to cur- tail free speech rights is correspondingly too uncon- 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trolled. It is true that a reviewing court must recog- nize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479 (1941). But an employer, who has control over that relationship and therefore knows it best , cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in "`brinkmanship' when it becomes all to easy to "overstep and tumble [over] the brink," Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (C.A. 7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees. The Board has found that an employer violated the Act by telling employees that if they selected a labor or- ganization to represent them and thereafter that labor or- ganization made unreasonable demands that the employ- er could not afford he would close his plant . The finding adopted by the Board in that case was that the employer could neither predict adverse conditions of his own voli- tion nor could he predict adverse conditions arising from factors beyond his control if there were no factual basis demonstrated to support such a prediction . Jimmy-Rich- ard Co., 210 NLRB 802, 804 (1974), enfd. sub nom. Clothing & Textile Workers v. NLRB, 527 F.2d 803 (D.C. Cir. 1975). In that case it was noted that there was no support for the employer 's assumption that unreasonable demands would be presented , or that demands would be presented that the employer could not accommodate. Furthermore, the employer did not indicate what wage demands or other proposals that it would consider rea- sonable or what economic concessions it would make. There was no evidence of the employer's economic dis- tress. It was noted that the employer's statement did not convey management's decision already reached to close the plant but contained threats to make that decision after employees voted in the election , but before collec- tive bargaining got started. Finally, it was noted that the statements were not "careful and honest predictions based on known facts ." It was found that the statements were actually inconsistent with other statements of the Respondent during the campaign to the effect that Re- spondent was supplying its employees with benefits "equal or superior to the plants in the area." Thus, the employer therein was found to be inconsistent in telling employees "at one time and place that they were as well off, or better off, than employees in union plants and at other times and places that the union would make unrea- sonable demands on Respondent which it could not afford." In another case the Board adopted a finding that looked beyond the employer's conditioning of a plant closure on demands that the employer could not afford and that would render him noncompetitive to find a veiled threat in view of the absence of a factual basis for the prediction . Marathon Letourneau Co., 208 NLRB 213, 222-223 (1974). In Hertzka & Knowles, 206 NLRB 191 , 194-195 (1973), the Board adopted a finding that it was a violation of Section 8(a)(1) of the Act for an employer to express ap- prehension that unionization would result in a loss of customers and layoffs inasmuch as such apprehension or prediction was not based on any objective fact. Therein the employer produced no evidence to show that its cli- ents would withdraw or had withdrawn business because of unionization. Although an employer in campaign propaganda may legitimately argue the risks inherent in collective bar- gaining, i.e., strikes, loss of wages, etc., and may indicate that collective bargaining may result in diminishment of benefits, such propaganda becomes coercive if it, by im- plication, rejects the collective-bargaining principles set forth in the Act and threatens a loss of benefits by per- sistent and repetitive reference to the possibility of loss of benefits . Hasbro Industries, 254 NLRB 587 (1981). With respect to the truthfulness of Respondent 's asser- tions regarding strikes and plant closures, aside from the reference to the Oakland plant , the General Counsel and the Union conceded that they were unable to offer evi- dence of any direct falsehoods therein . The Respondent, however, recognizing the Supreme Court 's strictures in the Gissel case adduced certain evidence as to the basis for its campaign assertions . Thus, its managers obtained newspaper articles and clippings concerning plant clo- sures and strikes and generalized information from a local trade association. Respondent has no direct, pri- mary information regarding the relative bargaining posi- tions of those other employers and unions. It did not pos- sess information, or at least did not demonstrate informa- tion as to how many employers had negotiated with the Union without the trauma of a strike . Evidence was ad- duced that the Radcliff plant was not operating at a profit, but it was also conceded that the Respondent had operated the plant as an investment with expectation of future profit and no evidence was adduced that any deci- sion was even contemplated with respect to a possible closure of the plant . With respect to the possible impact of the additional cost that might be attributed to a con- tract with the Union, Kirchman testified that he had ob- tained from a trade association located in Louisville, Kentucky, a list of employers that had negotiated collec- tive-bargaining agreements with the Union. He then ob- tained about 10 labor agreements from those employers by late February . He reviewed those documents as to wages and benefits, and made a comparison with the Radcliff plant, and orally reported the results to his su- pervisors. He testified that: It was very difficult to make a valid or reliable comparison without knowing what some of the un- derlying costs and so forth of these programs were. He did find that all had a union-security clause , a majori- ty had a cost-of-living clause, and that rates of pay for comparable "benchmark jobs" were "in most cases" higher than that paid at Radcliff. As to the pensions and insurance provisions he could not make a valid compari- son with those at the Radcliff plant . From such skeletal data, Respondent was therefore unable to make any de- UARCO, INC. finitive comparisons as to what additional costs it might encounter assuming that it agreed to a contract similar to that of 10 other local employers. Moreover, it could only speculate as to what specific contract demands the Union might actually make and strenuously pursue in collective bargaining. The Respondent was well aware of employee fears of plant closures, strikes, and loss of benefits as questions to these topics were persistent and continunng throughout the in-plant, employer-sponsored meetings.4 Yet, as I have found above, the Respondent in its literature accel- erated its references to economic detriment to the point where such references became not a mere speculation but rather a prediction of inevitaoility. In its reference to the closure of the Oakland plant the Respondent did engage in direct misrepresentation, i.e., the literature im- plies closure was due solely to union bargaining de- mands. Moreover, its prediction that the Union would adamantly, to the point of forcing a strike on its mem- bers, pursue a bargaining position adverse to its econom- ic viability, and its prediction that it would be forced to close because of the union strike demands, were predic- tions unsupportable by demonstrable evidence.5 Howev- er, its statements that it would pursue a predetermined, fixed bargaining stance with respect to specified, manda- tory subjects of collective bargaining constituted events of its control, and was conduct that was calculated to ensure that futility of designating the Union as bargain- ing agent and that would exacerbate its relations with the Union in collective bargaining to the point where a strike was inevitable. Wex-Tex of Headland, 236 NLRB 1001, 1007 (1978). I therefore conclude that the Respondent's entire pree- lection literature, on its face and in context of all written propaganda, did threaten employees with strikes, loss of jobs, benefits, and plant closure and did imply that it would be futile to designate the Union as the collective- bargaining agent. As to whether such threats were rendered nugatory within the context of the concurrent statements made by Respondent's managers, an evaluation must be made of the employee meetings. 2. Employee meetings Approximately 23 meetings were held in the plant lunchroom for each shift and department between March 3 and 19, at which almost all employees were present, al- though attendance was voluntary. The Respondent's panel that presided over the meeting consisted of Plant Manager Bramble, Vice President Brown, Personnel Di- rector Kirchman, and Attorney William Treacy. The meetings lasted for about 1-1/2 hours. No more than 35 employees attended each meeting. Some employees did not remain for the entire meeting. 4 At a preelection Employee Committee meeting in answer to an em- ployee question whether the plant would be mo%ed in the event the Union became a bargaining agent, Bramble answered "no comment " 5 I reject Manager Koelling's testimony as to his opinion of the impact on the Radcliff plant viability of possible union demands as conclusionary and generalized and therefore of little probative value In any event, no objection of comparative cost data was presented to the employees 81 After Treacy made remarks concerning the mechanics of the election process, the meetings were opened to dis- cussion by Bramble who, according to his testimony, so- licited "questions and comments." There is a disagree- ment in testimony of various witnesses, including the General Counsel's own witnesses, whether he specifical- ly asked for employees' "complaints." However, the em- ployees throughout the meetings responded by raising a multitude of questions and complaints about Respond- ent's policies and working conditions. Discussed else- where is Bramble's reaction to the complaint concerning the lack of a parking lot fence, mandatory overtime, and seniority. Although several employee witnesses testified on behalf of the Respondent that Bramble solicited no "complaints" and refused to respond to complaints, Kirchman openly took notes as to complaints as they were raised, and he freely admitted in his testimony that the complaining employees were advised that their com- plaints would be investigated and that he would report back to them. Thus, regardless of Bramble's phraseology, both employer and employee representatives understood that complaints about working conditions would be en- tertained, and both acted accordingly. In addition to these complaints and questions regard- ing working conditions, of which more will be discussed below, the employees raised numerous questions and comments concerning the subject matters of loss of bene- fits, plant closure, strikes, and collective bargaining. The testimony of 10 employees was adduced by the General Counsel. Their testimony was cryptic, conclu- sionary, without context, and accompanied with an un- certain and hesitant demeanor, perhaps in part because of the inability of the witnesses to recall events that preced- ed the trial by so long a lapse of time. Rita Goodin testified concerning what she could recall of the three first-shift preparatory department meetings. She testified that during the 1-1/2 hour meetings, after the meetings were opened for "questions," there was some reference to the closure of the Cleveland plant, but that it was explained that the Cleveland plant experi- enced an economic downturn and that Respondent un- successfully sought to expand its product line there but was frustrated by the refusal of the union there to agree to a reduction of machine operators on the new product line machine in order to make a new operation feasible. She testified, without corroboration, that Treacy or Brown also told the employees that the Union, if certi- fied at Radcliff, would "require" a "closed shop" that the Respondent would never accept and that the em- ployees would end up on strike. She also recalled a re- sponse to an employee question whether all benefits would be retained if the Union were certified to the effect that they would not as bargaining representative start "from scratch." Howard Carman, Don Wentz, and Mike Keplinger testified as to the first-shift press and maintenance depart- ment meetings. Carman testified that Brown asked for employee "complaints or gripes" and that he and others raised several complaints. He did not testify as to what response he received, if any. Carman testified that he asked whether there could be a "trade off" in bargaining, 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to which Treacy responded "no" and that Treacy then held up a paper and said that bargaining "starts from scratch." In cross-examination he admitted that Treacy did refer to "horsetrading" and did tell the employees that they could gain, lose, or break even in bargaining. Don Wentz' recollection of these meetings was that they were opened for "discussion" by a management repre- sentative; that an employee inquired as to the definition of a "union forced strike," but that in his opinion Treacy did not give a definite answer but merely said that the Union has a "lot of strikes." Carman, in his testimony as to these same meetings, had no recollection as to the strike reference. Wentz testified that he asked which em- ployees would retain benefits if the Union were certified as bargaining agent and that Treacy responded that bar- gaining "started from scratch" during the negotiation process. Wentz testified that at the second meeting in answer to a question as to whether the Respondent would negotiate, Treacy said that it would do so and that all items were negotiable as bargaining started from scratch and that benefits might be lost through negotia- tions. In cross-examination he testified that Treacy char- acterized bargaining as "horsetrading" where a little can be gained, a little can be lost, and no one could predict where it would end. He further conceded that in a refer- ence to a question concerning Respondent's Chicago plant, which was unionized, Brown discussed the subject of profit margin and pointed out that high union wages was but one of several factors, including high mainte- nance costs and high worker compensation costs, that determine the profitability of a plant, and that the Chica- go plant had other higher costs and was therefore being phased out. Mike Keplinger gave yet another view of the first-shift press and maintenance department meetings. According to him, Bramble opened the meetings by soliciting "com- ments and questions." With respect to the first meeting Keplinger had no recollection as to the subject of strikes. As to the second meeting, in reference to the Respond- ent's strike posters, an employee commented that a two- thirds vote was required for a strike, to which Treacy made reference to the Union's constitution and stated that the union president had discretionary authority with regard to some strike situations. At this meeting Ke- plinger challenged the accuracy of Respondent's cam- paign literature reference to the Lear-Siegler plant clo- sure. Although he attended all three meetings, Keplinger could not recall many other subjects, but he did recall the "bargaining from scratch" statement by Treacy and that Treacy said that employees could end up with less benefits than they possessed at the beginning of bargain- ing but that he also stated the Respondent did not desire that anyone should lose benefits that they already pos- sessed. In cross-examination he recalled that Treacy said that in bargaining you "give a little" and "take a little," but that no "smart" Company wanted employees to lose anything they already possessed. Bill Jordan, Jesse Bates, and Sharon Pike testified as to the third-shift meetings held for the press and mainte- nance departments, including the packers. Bates testified that the first meeting was opened for "questions." In ad- dition to the "bargaining from scratch" statement, and the statement that employees could lose benefits in the bargaining process, he heard Treacy say that benefits were "frozen" during negotiations. At the second meet- ing several complaints were raised , but he could not recall the responses. There was an employee remark about the extent of money spent by the Respondent for posters. Bates testified without contradiction that he protested that employees were "scared" by the Respondent's writ- ten propaganda but that Treacy responded that people are adults and that adults are not scared by the "facts." Bates testified that he recalled an employee challenge to the accuracy of a plant closure citation in the Respond- ent literature and the discussion that ensued wherein the Respondent stood by its information. In cross-examina- tion Bates testified that Treacy stated that employee ben- efits were frozen on notification that an election is to be held, and that in negotiations there is a possibility that employees could give up benefits and a possibility as well that they could gain benefits. Jordan testified that Bramble specifically solicited em- ployee complaints "or anything" they wanted to discuss. Jordan asked questions concerning the reason certain other employees had been treated in a certain manner and that Bramble gave explanations. He did not testify as to any explicit promised remedial action, except that on his complaint of Voight's restriction on his talking to other employees discussed elsewhere, Bramble said that he would look into it. According to Jordan, Treacy an- swered a question as to whether benefits could be lost in negotiations, and stated that bargaining "starts from scratch." On a repetition of the same question, Treacy said that benefits could be negotiated away. Jordan, in cross-examination, testified that he asked Treacy whether benefits could be lost or were they "frozen," that Jordan first utilized the word "frozen," and thereafter Treacy stated that under the law benefits are frozen from the time an employer receives notice of the filing of an elec- tion petition. Sharon Pike's testimony also repeated the "bargaining from scratch statement," and that employees could lose or gain as a result of collective bargaining. In cross-ex- amination she recalled that Treacy told the employees that under the law their benefits would not change until negotiations were completed. I discredit her testimony that Bramble explicitly asked employees why they needed the Union and union representation, as it is stark- ly inconsistent with the testimony of all witnesses. I con- clude that had it been made, Keplinger or Wentz surely would have recalled it. Second-shift pressman Tim Atcher testified that he at- tended only one full meeting and part of a second meet- ing and that the subjects of job security and bargaining were discussed but that he could recall only one specific statement, i.e., Treacy's response that bargaining would start "from scratch" and there was a "chance" of em- ployees losing benefits. He recalled that there was a "lot" of discussion of strikes and in response to a ques- tion why Respondent was resisting the Union's organiza- tion effort Brown stated that he was afraid of strikes. In cross-examination he conceded that Treacy may have UARCO, INC 83 likened bargaining to "horsetrading" wherein sometimes you gain, and sometimes you lose, or break even. Meetings were also held for employees excluded from the bargaining unit, i.e., the office clerical employees. Mail clerk Betty Wentz testified that an employee asked whether their benefits would be affected if the Union were certified, and that Treacy responded that the office employees would remain the same but that the plant em- ployees' benefits would be "frozen" during negotiations. Regarding a question concerning the yearly raise em- ployees received in June, Treacy responded that the cler- ical employees would receive the same raises as in the past but that the plant employees would have to bargain for it. In answer to a question concerning prevalent plant rumors to the effect that the plant would close if the Union were voted in , Treacy responded that if the em- ployees ask for "too much" money in negotiations the plant "possibly" would be shut down . Treacy also stated that other plants can perform the Radcliff' plant work at less cost than can be done at the Radcliff plant. Betty Wentz' credible testimony was uncontradicted. Several employees testified on behalf of the Respond- ent concerning these meetings . Employee D'hart testified that when asked about plant closure, Brown testified that the plant would not close solely because of the Union's designation as bargaining agent ; and that in response to a query as to the chance to strike , Treacy stated that no one really knew the answer . Former employee, now foreman, David Monroe testified that Biown explained the Radcliff plant would only be closed for economic reasons, and that as to strikes, Treacy stated that a two- thirds vote was required by the membership before the Union would strike . Betty Dillard testified that in answer to a plant closure question Brown stated that the plant would not close merely because the employees voted for a union, and that such conduct would be unlawful, and further that any closure would be determined by eco- nomics. As to strikes, Treacy stated that no one can "guarantee" whether a strike would or would not occur. Third-shift press operator Gary Harper testified that Brown stated that the plant was operating at a loss and that if an economic loss continued , the plant would be closed, but Brown did not relate closure to union repre- sentation. Harper, whose credible testimony was not con- tradicted, asked the question that if a union is out to ben- efit employees and the Company , why was there all the "head knocking [campaigning]," and that Brown an- swered "because of the possibility of strikes." As to ques- tions about the plant's profitability, Brown stated that it was "just about to turn the corner " but had not yet shown a profit. Harper testified that numerous questions were asked about the plant's profitability and that at some meetings the entire time was consumed with a dis- cussion of the Radcliff plant's profit and loss situation, and that it was reiterated many times by the Respondent that it was not making a profit at Radcliff First-shift maintenance employee Norman Copp testi- fied that when asked if employees would lose benefits in bargaining, Brown answered, "No one knows," and that when asked why the Respondent feared strikes, Brown explained that Respondent was in business to make prof- its and if no one is working there are no profits . He testi- fied that, when asked , Brown stated the plant would not move simply to avoid the Union. First-shift finishing department employee Mark Coff- man testified that a Respondent representative in answer to employee questions stated that the plant would not close because of the union election as bargaining agent but that the determining factor was whether it would make a profit, and that the Respondent would bargain because the law required it. Further, Brown stated that no one knew how long bargaining would continue, and that, in response to an employee observation, he agreed that it was true that 90 percent of negotiations were set- tled without strikes. First-shift finishing department em- ployee Barry Gerlach testified that Treacy said that Re- spondent was bound by law to negotiate regarding em- ployee benefits with the designated bargaining agent. Second-shift press operator Daniel Lancaster testified that employees asked questions about plant closure if the Union were elected, but that Brown responded that the issue was not the Union's election but whether the plant could make money . Lancaster testified that an employee stated that he had heard that 90 percent of all collective- bargaining agreements were settled without strikes, to which the response was that the statement was correct. Lancaster testified that it was stated by a management representative that a strike was "inevitable." This was not only in conflict with other Respondent witnesses, but also nowhere corroborated by any witnesses, and so star- tling at variance with all Respondent explicit statements and the witnesses' own testimony that I discredit it. Treacy and Brown did not testify . Bramble testified that many questions were raised about collective bargain- ing, i.e., would the Respondent bargain if the Union won the election, and that Treacy and Brown simply an- swered : "Yes." As to questions concerning the results of bargaining, Brown responded that there was no way to predict the results of bargaining. At an early meeting, ac- cording to Bramble , Treacy stated that, legally, bargain- ing could start from a "statutory base," such as the mini- mum wage, and that this in turn prompted the "bargain from scratch" question from an employee, and that Treacy stated that benefits would be frozen until bar- gaining was completed . Treacy further explained that the time needed to bargain was unpredictable and that al- though an employer could bargain from the minimum wage level that any employer would be silly to do this. Thereupon Treacy made reference to the "horsetrading" characterization and to the comments, "gain a little, lose a little," etc. Treacy further assured that no benefit would be eliminated solely because the Union was elect- ed. Bramble testified that many questions were asked whether the plant would be moved if a strike occurred, to which Treacy responded that economics would be the determining factor in a decision to close or relocate. As to questions regarding whether the Respondent knew whether a strike would occur, Treacy replied that there was no way of predicting that eventuality . Bramble testi- fied that employees commented that representation of- fered job security to which Brown responded that unions 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cannot provide job security, that unions cannot create jobs, and that only customer demands create jobs. To the foregoing testimony of Respondent's witnesses that Kirchman largely corroborated, he added, inter alia, the following. When employees asked how long it took to arrive at a collective-bargaining agreement in collec- tive bargaining, Treacy responded that some are agreed to quickly, others longer, and some negotiations reach impasse, and any question of bad-faith bargaining can be resolved by resort to NLRB procedures . As to the refer- ence to "bargaining from scratch ," Kirchman recalled that it arose when an employee referred to one of Re- spondent's written distributions and asked "because of this [bulletin] are you telling us we bargain from scratch?" This question, he testified, came up several times and Treacy responded by holding up a blank paper and saying that there is nothing on this paper and all blanks are to be filled in as you negotiate , that all bene- fits are negotiable , and that from the point of notification of an election all benefits are frozen , that an employer could start negotiations from the minimum wage but that no fair or good employer would do that because it was not smart. Elsewhere he testified that Treacy affirmative- ly answered the question whether wages and benefits were frozen at the time bargaining began. Kirchman tes- tified that some employees asked questions concerning the Oakland plant and that Brown gave a lengthy re- sponse that indicated that the plant was located in a high cost area, that there were several unions in the plant, and that was a safety factor, high taxes, that there had been several strikes and threats of strikes that all these factors led to plant closure that the "bottom line" factor was "economics." An employee then asked why employees were being told "these things," whereupon Brown an- swered because it was asked and because union represen- tation of itself did not determine plant closure, but rather economics. Kirchman testified that an employee asked whether there could be a strike if the Union won the election, to which Brown answered that a strike was not inevitable but that it was one legal means for unions to enforce their bargaining demands and that no one could predict what would happen . In answer to another question Brown stated that every effort would be made to keep the Radcliff plant open during a strike , and that protec- tion for nonstrikers would be afforded . Several employ- ees commented with respect to Respondent 's present corporatewide profitability and Bramble answered that each of Respondent's plants was expected to stand on its own "two feet," and that a profitable plant is not expect- ed to subsidize an unprofitable plant. When queried as to why the Radcliff plant continued to operate despite a loss of profits, Bramble responded that any new oper- ation was not expected to make money but that if losses continued, a decision about closure would be made by his corporate supervisors. According to Kirchman, an employee asked whether union representation will obtain a cost-of-living allow- ance and that Brown responded that if the subject arose in negotiations the Respondent could bargain but that it had a "philosophical objection" to that benefit, and that it had its own formula to determine wages such as com- petitor rates, area costs, and comparable area pay and that this subject has been the subject of negotiations in other unionized Respondent plants but that no Respond- ent plant has agreed to such benefit. Brown stated that if it arose in negotiations at Radcliff that Respondent would bargain over it, but that no one could predict the outcome. That testimony that expands and adds to the meeting statements, as partially recollected by the General Coun- sel's witnesses and that stands uncontradicted is, unless otherwise noted, credited. Even if the General Counsel' s witnesses were to be given the benefit of any direct credibility resolution, I cannot conclude that Respondent's statements at these meetings amounted to a threat of economic detriment as punishment for the employees' voting for the Union. Whether Respondent's statements amounted to a threat to engage in regressive bargaining, I find that they did not. The Board has stated in Coach & Equipment Sales Corp., 228 NLRB at 440-441 (1977): "Bargaining from scratch" is a dangerous phrase which carries within it the seed of a threat that the employer will become punitively intransigent in the event the union wins the election. The Board has held that such "hard bargaining" statements may or may not be coercive, depending on the context in which they are uttered. Thus, where a bargaining- from-scratch statement can reasonably be read in context as a threat by the employer either to unilat- erally discontinue benefits prior to negotiations, or to adopt a regressive bargaining posture designed to force a reduction of existing benefits for the purpose of penalizing the employees for choosing collective representation, the Board will find a violation. Where, on the other hand, the clearly articulated thrust of the bargaining-from-scratch statement is that mere designation of a union will not automati- cally secure increases in wages and benefits, and that all such items are subject to bargaining, no vio- lation will be found. I conclude that Respondent's statements at the meet- ings merely informed the employees that benefits could be gained as well as lost in collective bargaining but that its statements did not imply that existing benefits would be punitively eliminated or that it would take a regres- sive bargaining stance. Wex-Tex of Headland, supra; Blue Cross of Kansas City, 259 NLRB 483 (1981) (where simi- lar conduct was found not to constitute election interfer- ence). Within the context of all Respondent 's statements, I conclude that employees were not told that they would not receive benefits and wages already scheduled or due them, but that the use of the word "frozen" was merely calculated to mean that nothing could be lost pending negotiations and resolution of the question concerning representation, i.e., the status quo would continue. I further conclude that the statements made by Re- spondent's managers at these meetings did not , in con- trast to its written propaganda , repeatedly and forcefully allude to the Union's reputed history of causing strikes, UARCO, INC. 85 nor did it stress the inevitability of an economically life- threatening bargaining posture by the Union . Finally, unlike the literature, the Respondent did not suggest the futility of union representation by asserting that it would maintain an intransigent bargaining posture.6 Although vastly more moderate in temper than its campaign literature , I do not conclude that Respondent's statements at these meetings were of such an extent and nature as to substantially negate the coercive impact of its literature. Throughout these meetings employees ex- pressed concerns whether the Respondent would retali- ate against them for selecting the Union, whether bene- fits would be lost, whether the Respondent would close its plant, whether the Respondent would bargain, and whether there would be a strike . Yet, is seen from a review of the literature, despite the moderation in its oral statements, the essence of a prediction of inevitable bar- gaining collapse and strike and resulting economic loss continued unabated in the literature. Although temperate in comparison to the literature , the Respondent many times in its statements referred to the delicate financial status of the Radcliff plant and only stated that results of bargaining with this Union were unpredictable . In view of the coercive nature of its literature, the statement that it would bargain as obliged by law hardly constituted re- assurance to employees whose fears were aroused by the campaign literature. Cf. Ludwig Motor Corp., 222 NLRB 635 (1976). No suggestion was advanced that collective bargaining with this particular union might follow the national norm of a statistically probable nonstrike settle- ment, or that accommodation of both employee and em- ployer interest could be reached at Radcliff. No assur- ance was given that in bargaining the Respondent would have an open mind and engage in sincere and meaningful discussion of subjects of bargaining that might entail modifications of its predetermined concepts of wage and benefit formulation or philosophy . Thus, when an em- ployee questioner was told that the Respondent would bargain concerning a cost-of-living allowance, as it had at other unionized plants, the employee was reminded that Respondent has not agreed to such benefit at any plant. Finally, although Respondent's remarks that arguably might soften the impact of its literature may have been made on several occasions , the evidence is far from suffi- cient to indicate that the reach of such remarks was of such extent as to have been heard by all employees at all meetings, and thus likely to have been as coextensive in propagation as its literature. With respect to the solicitation of employee com- plaints, as I have noted earlier , regardless of whether Bramble explicitly solicited "comments and questions," or "complaints," it was understood by all that the Re- spondent was inviting employees to raise complaints as to working conditions. Respondent's conduct herein is similar to that in Uarco, Inc., 216 NLRB 1 (1974), in which it impliedly solicited employee grievances . In that 9 I find the testimony concerning intransigence with respect to a "closed shop" proposal too isolated to be of probative value, even if "closed shop" could be interpreted as a reference to a lawful "union shop." case the Board , citing, inter alia, Reliance Electric Co., 191 NLRB 44 (1971), noted that the solicitation of em- ployees' grievances during an organizational campaign constitutes interference with employees' rights even though the employer merely states that it would look into or review the problems raised without committing itself to specific corrective action. The Board stated, however, that it is not the solicitation of grievances per se that is coercive but the promise of corrective action that can be inferred therein. In that case the Board found that the respondent sufficiently rebutted such inference by repeatedly and explicitly telling employees that it was making no such promises. Such was not the evidence in this case. For example, with respect to the question from an employee whether the Respondent would be "willing to listen to some new seniority systems," Kirchman testi- fied that Bramble answered that "anything .. . that made sense from an employee's standpoint and produc- tion-the Company's standpoint, of course, we would be willing to listen to." Similarly when an employee com- plained of improper maintenance of a machine, Respond- ent immediately thereafter sent out its maintenance fore- man to consult with the employees about the problem. When several complaints were raised about inconsistent treatment of employees by the foreman, Bramble re- sponded, "If you have a specific incident, bring it to my attention, or your supervisor's attention, or to his super- visor's attention, as soon as possible while it's fresh in everybody's mind . . ." Bramble promised to look into a complaint about the lack of a parking lot fence and he immediately thereafter took affirmative steps that led to the erection of such fence. Therefore I conclude that the Respondent's solicitation of grievances and complaints raised therein an inference that corrective action would be taken, and that such in- ference was not rebutted by any action or statements by the Respondent. Moreover, as discussed elsewhere, af- firmative action was taken shortly after the election with respect to complaints concerning the fence, the seniority system, and mandatory overtime policy. The Respondent contends that its conduct was in accord with past practice and thus did not constitute a strategem to undermine the organizational efforts of its employees. Bramble, and to some extent Kirchman, testi- fied that in prior years employee meetings were held under the same format wherein employee complaints were raised and promises were made to look into the problems and that some were resolved and some were not. However, these meetings were conducted yearly in the fall of the year. In 1979 the meeting was held in No- vember just 4 months earlier. In earlier years they were held in September or October. The duration of these annual meetings did not encompass a span of time com- parable to the 1980 meetings. However, in 1977 and 1978, similar meetings were held during unsuccessful or- ganizational campaigns of another labor organization. Also, although it was testified that in past meetings the Respondent listened to employee complaints, there is no evidence that it solicited those employee complaints. I conclude that the March 1980 meetings were precipitat- ed by the Union's organizational efforts and constituted 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an integral part of Respondent's campaign against the Union. Furthermore, the meetings were held against a propaganda effort calculated to convince the employees that collective bargaining by an "outside union" was futile and harmful . The employee complaints were en- twined with questions about a plant closure, strikes, and collective bargaining. Clearly the calculated intent of the solicitation of such complaints was to frustrate the em- ployees' desire for representation by an "outside union." This conclusion becomes manifest on the Respondent's enhancement of the position of the Employee Committee by its conduct relative to the parking lot, seniority system, and mandatory overtime complaints . According- ly, I conclude that , within the context of this case, the Respondent was not merely pursuing its past practice and policy. The fact that Respondent may have engaged in similar conduct during the frustrated organizational ef- forts of another union does not lead me to conclude oth- erwise. I therefore find that the Respondent violated Section 8(a)(1) of the Act by soliciting employee com- plaints of working conditions at the preelection employ- ee meetings in March 1980. E. Majority Status The complaint in Case 9-CA-15126 alleges that the Union obtained its majority status between January 1 and February 3, 1980, that since February 12, 1980, the Union has been the exclusive bargaining agent of the em- ployees in the appropriate unit, and that since February 12, the commencement of Respondent 's unfair labor practices, that the Respondent's conduct has warranted the issuance of a bargaining order requiring recognition and bargaining as of February 12. Cf. Peaker Run Coal Co., 228 NLRB 93 (1977). On February 12, there were 217 employees employed within the bargaining unit . The General Counsel ad- duced into evidence authorization cards of 124 persons purportedly executed between January 1 and February 3. The purported authorization cards of five persons, La- venia Dumpster, Tom Hall, Randy Wood, Richard Steward, and H. L. Parrisean, were offered into evi- dence, but rejected by me because of the failure to prop- erly identify the signatures on those cards . I rejected the General Counsel's request that I make a handwriting comparison of the signatures of those cards with known samples. The remaining cards were authenticated either by the card signer as in the vast preponderance of cards, or by the card solicitors as in virtually all the remaining cards, except for a few cases, where, for example, the signer was deceased, or unavailable, by a combination of testi- mony of persons familiar with the signature and the cir- cumstances of delivery. The Respondent argues that the cards purportedly signed by the following employees were not properly au- thenticated by the card solicitors, who did not witness the actual signing of the cards, i.e., each employee re- tained the card for a short time and then returned it, al- ready executed, to the solicitor either directly or to a prearranged location , e.g., the solicitor's toolbox: Mi- chael Clymer, David Combs, Mitchell Gibson, Gary Harper, Alan Seymour, Paul Robinson, Paula Caswell, Thomas Padgett, Betty Jackson, Sandra Banks, Randy Banks, Gary Brakebill, William Gary Jones, Steve Mar- shia, Daryl Miles, and Mark Porcelli . However, the act of returning a signed card for ultimate delivery to the Union is sufficient for proper authentication of signature. Stride Rite Corp., 228 NLRB 224, 234 (1977); McEwen Mfg. Co., 172 NLRB 990, 992 (1968). Accordingly, I conclude that these cards were properly authenticated. The Respondent further argues that with respect to nine cards there was insufficient evidence that the cards were delivered to the solicitor or to the Union by the signers. Employees Linda Hagen and Robert Johnson could not recall the identity of the solicitor but did testi- fy that they returned the cards after they signed them. Steve Parks testified that he signed two cards on two dif- ferent occasions . The first card he returned to employee card solicitor Cleo Letterman in the plant. The second card he signed at a union meeting and placed it on a table near the union organizer for delivery to the Union. Employee Sheila Stone testified that she signed her card at a union meeting and deposited it at the table near the union business agent, clearly for delivery to the Union. Jimmy White testified that he signed his card and depos- ited it at a place designated for receipt by solicitor Cleo Letterman . Jeff Weiss could not recall to whom he deliv- ered his signed card , but vividly recalled handing it back to the solicitor. Walt Hanley testified that he handed back his signed card to the same person who solicited his signature after the solicitor asked him if he wanted a "union." Gordon Mingus testified that after he read his card he signed it and returned it although he could not recall the identity of the solicitor. Cecil Bruckner testi- fied that he was in a group discussion of employees at the plant and during the discussion it was stated that union representation was needed . He thereupon signed the card as did other employees in the group . He failed to testify that he returned the card . There is no evidence as to how that card left his possession. When retention of a union card by the signer occurs, it can be concluded that the signer had not yet made up his mind whether he should make the card effective by de- livery to the union . Schwartzenbach-Huber Co. v. NLRB, 408 F.2d 236 fn. 1 (2d Cir. 1969). Thus the date of deliv- ery is paramount to the date of actual signature . Multi- National Food Service, 238 NLRB 1031, 1039 (1978). With the exception of Bruckner's card, the evidence sufficiently establishes that the card signers relinquished possession and delivered their cards, albeit to an uniden- tified solicitor, or to a designated depository for delivery to the Union . Accordingly, I conclude that those cards were not invalidated by nondelivery to the Union. How- ever, I cannot conclude that Bruckner's card constituted a valid authorization in the absence of testimony of its delivery to any person, despite its ultimate possession by the Union. The Respondent argues that the cards of Sheila Stone, Leon St. Clair, and Debbie Dailey ought not be counted as evidence of the Union's majority status, inasmuch as they were not employed on the date of the election. However, the critical date for majority status is the date the Respondent allegedly commenced its unfair labor UARCO, INC. 87 practices. Accordingly, the issue is whether the Union attained majority by that date. Stone quit on March 7, and Daily quit in March but before the election. As they were employed on February 13, their cards ought to be counted as evidence of majority status. However, as St. Clair was terminated on February 25, prior to the com- mencement of conduct as alleged in Case 9-CA-15126, and as found herein to be violative of the Act, his card ought not be counted. Finally, the Respondent argues that the cards of the following employees ought not be counted as they are invalidated by the misrepresentation of the card solicitor: Ron Bryson, Anna Chenault, Sonny Cole, Linda Hagan, Steve Parks, Larry Pavlicheck, Sandra Skrupskis, Jimmy White, Kamala Barb, John Bowman, Ray Clevenger, Mike Glackin, Harry Maphis, Joyce Newton, Ann Rob- inson, and Amy Woods. The Respondent relies on the testimony it elicited in cross-examination, largely through a mode of inquiry that suggested the desired response, i.e., that the solicitor stated that the purpose of signing a card was to obtain an election, or some other purpose, i.e., to invite the Union to talk to the employees concerning representation. The cards are clear and unambiguous. The face states: I, - , authorize UAW to represent me in col- lective bargaining. The reverse side states: This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions. In Cumberland Shoe Corp., 144 NLRB 1268, 1269 (1963), the Board held that where authorization cards unambiguously recited that the signer authorized the union to represent the employee for the purpose of col- lective bargaining and made no reference to an election, those cards should be counted in favor of the union, unless it was demonstrated that the solicitor told the em- ployee that the sole purpose of the card was to obtain a Board-conducted election. The Supreme Court has ap- proved the Board's policy and stated in NLRB v. Gissel Packing Co., 395 U.S. 575, 606-607 (1969): In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above his signature. The Court, however, cautioned against a reliance on "key or magic words" and a "too easy application of the Cumberland rule." The Board therefore looks at the "to- tality of circumstances" surrounding the solicitation of cards. Great Atlantic & Pacific Tea Co., 230 NLRB 766 (1977). However, if employees who read the cards were told that the purpose of the cards was to obtain an elec- tion, or that if a card were signed, a union representative would come to talk to the employees concerning the Union, the Board concluded that the totality of circum- stances indicated that the employees were not told that the sole purpose of the cards was to obtain an election, and that the additional comments of the card solicitors were not "calculated to direct the signer to disregard and forget the language above his signature." Great At- lantic & Pacific Tea Co., supra. In Keystone Pretzel Bakery, 242 NLRB 492, 493 (1979), the Board evaluated the circumstances of card signing wherein the solicitors stated that the purpose of the cards was "to bring an election in, for the purpose of negotiating a contract, to better the wages, working conditions, etc., the benefits," but where there was no affirmative evidence that the signers read the cards. The Board stated: One factor which the Board has considered in the "totality of circumstances" is whether the em- ployees read the cards. Thus, where an employee was told that his card would be only used to get an election, affirmative evidence that the employee did not read the card supported the conclusion that the card was signed in reliance on the misrepresentation as to its only purpose. On the other hand, where employees were merely told that the purpose of their cards was to get an election, affirmative evi- dence that the employees read their cards supported the conclusion that the reference to an election was not misrepresentations of the cards' purpose. In other cases, however, the Board has held authoriza- tion cards valid without reference to, _and in appar- ent absence of, affirmative evidence that the em- ployees read their cards. The Board therein found that the reference to an elec- tion as to the purpose for the card "did not negate, and were not inconsistent with, the clear and unambiguous statement on the cards that the signers authorized the Union to represent them for the purposes of collective bargaining." In Ed Chandler Ford, 254 NLRB 851 (1981), the Board considered as too remote and irrelevant, a statement that cards were only being solicited to obtain an election, when that statement preceded the card signing by 1 month, and there was no evidence of misrepresentation during the card signing. Bryson testified that he read and signed his card at a union meeting. In cross-examination he conceded that Business Agent Puckett stated that the Union needed cards for an election. Cole testified that he had no con- versation with the card solicitor, but that he took his card home and returned it signed and that he had heard other employees in the plant who said that it was a good idea to get cards signed to obtain an election. Linda Hagen testified that she read her card before she signed it. On cross-examination she answered affirmatively to the question whether she was told by the solicitor that there could be an election, and then testified affirmative- ly to the question of whether she was told by the solici- tor that the purpose in getting cards signed is to get a vote, and again that the purpose was to invite the Union to talk to employees in the plant. The witness was so un- 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD certain and confused as to her testimony regarding the purpose of the card that I place no weight on her testi- mony in this regard. The only thing she seemed certain of was that she read and signed the card. Parks read his card before signing it. As noted else- where, he signed two cards. With respect to the card he signed in the plant, he testified that the solicitor told him that the purpose of the card was to "get a union in" and to "have a certain percentage of these cards filled out in order for the Union to try to come and get in and see if they could do us any good or not." The second card was signed at the union meeting and he initially recalled no conversation about the purpose of the card. In cross-ex- amination he testified that the first solicitor additionally stated as a purpose the obtaining of an election. Thereaf- ter he added that the solicitor stated that a certain per- centage of employees was necessary to get a union repre- sentative to talk to the employees in the plant and that nothing was said about and election until the union meet- ing in which he signed the second card. Then he testified that some reference was made to an election by the first solicitor. In further cross-examination he conceded that at the union meeting when he signed his second card that Business Agent Puckett stated that cards were needed "to have a vote." The witness was admittedly confused as to what was stated to him about the pur- poses of the card, and I place no weight on this aspect of his testimony. Pavlicheck testified that Business Agent Puckett talked about a purpose of the cards for obtaining a vote at the union meeting when he signed and read his card. He also testified that Puckett said something to the effect that cards were necessary to obtain union representation. He finally admitted to confusion and uncertainty as to what was said about the purpose of the cards. Although Skrupskis testified that various employees had made earlier statements regarding an election, the actual card solicitor made no statements about the pur- pose of the card that she read and signed and gave to him. Similar testimony was given by White who had heard earlier rumors to the effect that the only purpose for signing cards was for an election, but that he had signed his card after reading it and that the card solicitor made no reference to the card's purpose. Letterman testified that Bowman approached him in the plant, asked for a card, filled it out, signed it, and re- turned it without any conversation. Letterman admitted that 2 weeks earlier he stated that he was trying to get enough employees to sign cards in order to obtain an election. Clevenger testified that he read his card and while he was filling out and executing his card, he engaged in a concurrent conversation with card solicitor Jimmy White wherein White stated that the purpose of the card "was to try and organize a union to try to clear things up around the plant, which everybody kind of thought needed to be done." Nothing was said about an election. On cross-examination which was marked by confusing and uncertain responses, he testified that White said of the card, "it could possibly get the Union down here," and "we could have a meeting if we get enough cards signed." Michael Glackin testified that when he received his card that card solicitor employee Chuck Cook told him that "the card was to show the UAW that there was enough interest for them to come down." He testified that nothing further was raised. Glackin retained the card. Later he read it, filled it out, and executed it and thereafter about a week returned it to Glackin without further conversation. On cross-examination he testified that Glackin, when he gave him the card, had told him that if enough cards were signed the Union would "let us listen to what they've got to offer," and that "it was just to show them that there was enough [employee] in- terest etc." Harry Maphis testified that the card solicitor asked him whether he was interested in a union. He said, "yes," received his card, read it, filled it out, and re- turned it. Several months later he had heard other em- ployees say, "If enough people were interested in a Union, they would come down, and I guess . . . we could have a Union vote." Joyce Newton testified that she received a card in the plant from Don Wentz, retained it, and later filled out and executed it, and returned it to Cleo Letterman, with- out any discussion. She had attended the first union meeting at which Business Agent Puckett stated that a certain percentage of cards was needed to obtain an elec- tion, but she testified that he instructed everyone to read the cards "carefully." Ann Robinson testified that she asked Maria Mays for a card, read it, filled it out, signed it, and returned it im- mediately to Mays without conversation. On cross-exam- ination she conceded that she had previously heard that other "people" in the plant were trying to get cards signed in order to get a vote. Amy Wood testified that in the plant she asked Don Wentz for a card and that she took it home, read it, filled it out, signed it, and later returned it to Wentz. On cross- examination she testified that she had difficulty recalling what conversation occurred when Wentz originally asked her to sign a union card, but responded "yes" to the question, "Did Don for example say, `Look, we want to get an election here. Let's get a card signed. We need some cards signed?"' She later testified that she could not recall Wentz' words and that she thought he said "partly" something about an election or wanting a union. Finally she testified that she did not recall what Wentz said about an election. Based on the above testimony, I do not conclude that the circumstances surrounding the card solicitation of the above employees support a conclusion that the employ- ees were either explicitly told or otherwise led to believe that a purpose of the cards was not as stated in clear lan- guage on the cards that they read before signing. However, in one other instance I conclude that invali- dating misrepresentation occurred. Anna Chennault testi- fied that she received a card at the plant from employee Allen. She glanced at the front of the card and asked about the phrase, "I wish to be represented by the UAW," but that Allen stated: "that that was just to get- ting the ball started, and that she didn't think we could get one in without an election, and not to worry aobut UARCO, INC it." Chennault then immediately signed it and returned it to Allen. The circumstances warrant a conclusion that Chennault was told to disregard the language of the card and was given assurance by the solicitor of its nullity. Based on the foregoing, I exclude only the cards of Bruckner, St. Clair, and Chennault and find that at the material time the Respondent possessed majority status as evidenced by the valid authorizations of 121 of 217 em- ployees in the bargaining unit. IV. OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION The objections set for hearing in this consolidated pro- ceeding are as follows: 2. The Employer threatened to discontinue bene- fits if the Union won the election. 3. The Employer threatened dire economic con- sequences, including plant closure, if the Petitioner won the election and predicted a loss of business to the Employer if the Union won the election. 4. The Employer interrogated employees con- cerning protected concerted activities. 5. The Employer created the impression of sur- veillance of union activities. 6. The Employer discriminated against employees in regard to terms and tenure of employment in order to discourage support for the Petitioner. Among those discriminated against were Marcella Michael and Leon St. Clair , who were terminated on or about January 23 , 1980, and February 25, 1980, respectively, because of their support for the Petitioner. In addition, the Employer discriminated in regard to the terms and conditions of employ- ment of William Vessels by disciplining him for lawful distribution of literature on behalf of the Pe- titioner. 7. The Employer threatened to discipline employ- ees for lawful distribution of literature in order to discourage support for the Petitioner. 8. The employer prohibited distribution of litera- ture and enforced a discriminatory "No Solicita- tion" rule in order to discourage support of the Pe- titioner. 9. The Employer, through literature and speech- es, and otherwise, instilled in employees' minds that collective bargaining is futile and inevitably leads to strikes. 10. The Employer issued false and deceptive statements and engaged in deceptive practices. 11. The Employer interfered with employees' free choice by misrepresentation pertaining to the National Labor Relations Board and its processes. 12. The failure of an agent of the National Labor Relations Board to appear on time or with ballots to conduct the election on its scheduled date, forcing postponement of the election until another date, and the failure of another Board agent to appear on time for the election on March 21 , 1980, resulted in an atmosphere of confusion and destroyed the labora- tory conditions necessary for a fair and free elec- tion. 89 14. Other conduct was engaged in destroying em- ployees' free choice, which is under investigation. With respect to Objections 2 through 9, the Union relies on evidence adduced in support of the complaint by the General Counsel with the exception of one inci- dent of purported surveillance to be discussed below. No evidence was submitted in support of Objection 12, as the Union now withdraws that objection. Objections 10 and 11 are premised on the posting of certain documents by the Respondent in the plant lunch- room. During the afternoon of Monday, March 17, the Respondent posted on three walls of its plant lunchroom approximately 363 photocopies of documents purporting to be unfair labor practice charges filed with various Re- gional Offices of the Board by individual members against the UAW or UAW locals. One unsigned, undat- ed document "Notice to Employees and Members" ap- pears to have been part of a settlement agreement to which UAW Local 505 was a party. Certain phrases in the charges are highlighted by underlining which pin- points the gravamen of the charges that in general relate to alleged unfair or disparate treatment of the individual by the Union, e.g., failure to process grievances. This posting was preceded by a fact bulletin distributed by Respondent on Friday, March 14, which stated: More questions-good! And more FACTS! 1. Question Does the UAW treat all its mem- bers the same-or does it discriminate against some, in favor of others? FACTS LIKE ANY OTHER GROUP, IT HAS ITS FAVORITES. SOME UNION MEM- BERS ARE TREATED FAIRLY-AND SOME AREN'T. 2. Question Can you prove this? For example, can you prove that some people get their griev- ances presented to management and some don't? FACTS WE WOULDN'T SAY IF IT [sic] WE COULDN'T PROVE IT. ON MONDAY, YOU'LL HAVE THE FACTS! LOOK ON THE WALLS OF THE LUNCHROOM! The Union concedes that the documents are not for- geries and are not other than what they purport to be. Other than the italics, no comments were added to the documents by the Respondent. The Union contends that the Respondent, by posting these unfair labor practice charges, abused Board documents and misrepresented to employees that the Board had made findings of unfair labor practices alleged therein. The Union relies on the testimony of four employees to support its contention that in addition to the postings, the Respondent misrepresented to employees that the Board found that the Union violated the Act in those 363 situations. Thus Keplinger testified credibly and without effective explicit contradiction that at one meet- ing an employee complained that the Respondent had ex- hibited favoritism in its dealings with employees and that Attorney Treacy responded, "What makes you think the 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union doesn't play favorites-look around the walls, does that look like a fair union to you?" Employee Jordan testified that at one employee meeting Treacy ex- plained, in response to an employee question, that the purpose of the postings was "to show .. . the employ- ees, the reason why we did not need representation by the UAW." Jordan admittedly was unable to recall the words Treacy used in giving the explanation. As to this testimony, his demeanor was markedly uncertain. Aurelia Bates testified that at the meeting she attended employ- ees asked questions as to what the documents were and to what they pertained and that they were characterized by Respondent's representative as "grievances" filed against the Union. Finishing Department Inspector Patty Wheaton testified that at one meeting an employee asked where the answers were to these "grievances," to which Treacy, she believed, responded that "the answers are with the grievances hanging on the walls." She could recall no other comments although she testified that there were many questions asked about literature posted on the cafeteria walls. Her demeanor indicated a high degree of uncertainty. Bramble, Kirchman, and Monroe testified that Treacy responded that he did not know the results of the grievances. Other employee witnesses on behalf of the Respondent, including Harper, whom I found to be one of the more convincing, fluent, and cer- tain witnesses in the entire proceeding testified that Re- spondent's representatives said nothing about what the results of the grievances were. I discredit Wheaton be- cause her recollection was the least certain of all wit- nesses and also not probable inasmuch as the most casual observer of these postings would have been aware that no answers were posted, as indeed her question itself re- vealed. I credit the testimony of Respondent's witnesses, which except for Wheaton's testimony is not controvert- ed by any General Counsel witnesses, i.e., the testimony that Respondent asserted that it did not know the dispo- sition of the charges. Kirchman also testified that an employee asked why the Respondent posted copies of unfair labor practice charges and that the response was that it was "an at- tempt to give you all the facts." The Union argues that Respondent's characterization of the postings as "facts" and their utilization as proof of favoritism is tantamount to an assertion that the Board had found the Union guilty of unfair labor practices. I do not agree. The doc- uments on their face are self-explanatory, i.e., over 300 individual persons in various States filed unfair labor practice charges with the Board premised on some per- ceived ill treatment by a union that was set forth therein as conduct violative of the Act. The evidence is insuffi- cient to support a finding that the Respondent misrepre- sented this unchallenged fact by suggesting that the Board ultimately agreed that the alleged conduct consti- tuted violative conduct. Respondent accused the Union of favoritism in its dealings with its members. In support of this accusation it relied on the fact that numerous per- sons perceived themselves as victims of such treatment. It made no effort to discover the ultimate disposition of those charges by the Board nor, of course, the truth of assertions therein. Indeed, the ultimate disposition by the Board of those charges is immaterial, for the issue here is not whether Respondent misrepresented the Union as vi- olator of the Act, but whether Respondent supported its campaign accusation of union favoritism with misleading and incomplete information, i.e., the fact that only 300 persons alleged that they were treated unfairly is not evi- dence that they were, in fact, treated unfairly. Dismissals or settlements of these charges, which the Union at- tempted to prove by its request to take administrative notice of the various Regional Offices' dispositions, but which I rejected, does not establish that the alleged con- duct did not constitute unfair treatment, but only indi- cates that the Regional Directors concluded that the alle- gations fell short of a violation of the Act, either on the merits or because of lack of evidence, or concluded that for a variety of reasons the issuance of a complaint was unwarranted. The only resolution of the truth or falsity of each alleged mistreatment would entail an inquiry of the facts of each case, a virtual impossibility for the Union, the Respondent, and this tribunal. Therefore the issue here must be resolved by an evaluation of the tend- ency to interfere with the election of Respondent's reli- ance on a half-truth at the close of the election campaign that half-truth could not be reasonably rebutted by the Union within the limited time remaining before the elec- tion. I conclude that the Union's reliance on a line of Board cases holding that misrepresentation of Board processes and misuse of Board findings of complaints is misplaced. The use of the charges here did not constitute misrepresentation of a Board finding or a document issued by the Board, by alteration, misquotation, or par- tial quotation. The charges, i.e., the allegations therein, were constructions of individuals and not the Board, albeit they appeared on Board charge forms. The Board stated in General Knit of California, 239 NLRB 619 (1978), in which the Board returned to the standard originally set forth in Hollywood Ceramics, 140 NLRB 221 (1962): [A]n election should be set aside only where there has been a misrepresentation or other similar cam- paign trickery, which involves a substantial depar- ture from the truth, at a time which prevents the other party or parties from making an effective reply so that the misrepresentation, whether deliber- ate or not, may reasonably be expected to have a significant impact on the election. [140 NLRB at 224.] The Respondent in its propaganda did not simply allege that many employees were dissatisfied with the Union's representation. The Respondent asserted to its employees that the Union was in fact guilty of favorit- ism, i.e., unfair or disparate representation of employees. I have concluded that it did not accuse the Union of vio- lating the Act. However, it clearly characterized its ac- cusation of favoritism as being premised on a factual basis. It announced to the employees that it had informa- tion to support its accusation. It thereupon posted copies of alleged unfair labor practices. The charges, of course, can arguably constitute evidence that many members, with or without justification, were dissatisfied with the representation of the Union, and can be recognized as UARCO, INC. 91 such by the employees. However, because Respondent characterized and stressed that the charges were evi- dence of the fact of improper representation, it clearly implied to the employees that it had some information to support the truth of the accusations therein. The Re- spondent had no such information Accordingly, I find that the Respondent engaged in a misrepresentation that could not be adequately rebutted by the Union. I further conclude that the misrepresentation was of a sufficiently serious nature as to have impacted the employees' free- dom of choice, i.e., it would have been of significant import to the voter whether its prospective bargaining agent had a nationwide factual record of unfair represen- tation of its members as reflected in the experiences of over 300 members of the Union, which was capable of proof by the Respondent. Accordingly, I conclude that Objection 10 is meritori- ous and that by such conduct the Employer interfered with the election. The only other litigated incident alleged to have con- stituted election interference, but that was not encom- passed within the allegations of the complaint, and that was explicitly disavowed by the General Counsel as vio- lative conduct, concerns the conduct of Supervisors Herman Maynard and Gary Sharp. During the election campaign, employees Jesse Bates, Billy Vessels, and Bill Jordan made short prounion speeches to coworkers during lunchtime in the lunch- room. It is not clear how often these speeches were given. Bates testified that on two or three occasions Su- pervisor Maynard came into the lunchroom and sat and listened as these speeches were made. Prior to the elec- tion campaign, the foremen did not eat lunch in the lunchroom. It is not clear whether they entered the lunchroom for other purposes, i.e., use of the vending machines. Maynard testified that on two occasions in March he did go into the lunchroom because he heard of the speeches and was curious. Therefore he went in and remained for about 20-25 minutes each time at the far end of the room. During the first visit he did hear Bates and Vessels render 5-minute speeches. On his first visit, Foreman Gary Sharp sat with him. The second day, Maynard heard Jordan deliver a short prounion speech. Neither foreman said anything to any employee on those occasions. The room was large enough to accommodate 20 tables. At those times 15 employees were taking their lunch. There is no evidence that Maynard engaged in this conduct at the instruction of his supervisors, or that he reported back his observations. Cf. Russell Stover Can- dies, 223 NLRB 592 (1976). I cannot conclude that Foreman Maynard and Sharp's brief auditing on one or two occasions of the prounion speeches given openly by union activists within the Re- spondent's plant constituted coercive spying or surveil- lance of union activity. Furthermore, the incident was too isolated to have impacted the election, or to have amounted to a violation of the Act. In light of my findings with respect to the alleged unfair labor practice allegations, I find meritorious Ob- jections 3, 4, 9, and 10. The remainder of the objections, I conclude, are not supported by sufficient evidence. With respect to Objection 6, the only alleged discrimina- tion litigated herein was pertaining to the discipline of William Vessels discussed elsewhere as an alleged unfair labor practice. Accordingly, I recommend that the elec- tion in Case 9-RC-13225 be set aside. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, it will be recommended that the Re- spondent cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. It having been found that the Respondent discrimina- torily terminated and refused to recall to employment Martha Langdon on Ap;ril 10, 1980, I shall recommend that the Respondent be ordered to reinstate her to her former or substantially equivalent position, without prej- udice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of the discrimination against her. Any backpay found due shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).' As the Respondent has dominated, interfered with the administration of, and rendered unlawful assistance to the Employee Committee, I shall recommend that the Re- spondent be ordered to disestablish and desist from rec- ognizing and dealing with the Employee Committee as the representative of any employees over employee grievances, rates of pay, wages, hours, or working condi- tions. Finally, the General Counsel and the Charging Party argue that a bargaining order is appropriate in this case. The Supreme Court in Gissel, supra, 613, 614, held that a bargaining order would be appropriate where the unfair labor practices of the employer were "outrageous" and pervasive" and the coercive effects were unable to be eliminated by traditional remedies. The Court also held that a bargaining order is appropriate "in less ex- traordinary cases marked by less pervasive practices that nonetheless still have the tendency to undermine majori- ty strength and impede the election processes." Further- more, in Gissel, the Supreme Court affirmed the enforce- ment order of the United States Court of Appeals for the First Circuit in the Sinclair case that provided for a bar- gaining order as an appropriate remedy for unfair labor practices strikingly similar to those therein, i.e., propa- ganda that conveyed the message "that the company was in a precarious financial condition"; that the "strike- happy" union would in all likelihood have to obtain its potentially unreasonable demands by striking, the proba- ble result of which would be a plant shutdown, as the past history of labor relations in that area indicated; and that the employees in such a case would have great diffi- culty finding employment elsewhere." Gissel, supra. Preelection campaign propaganda that, in effect, threatens plant closure, has been recognized by the Board as the most pervasive, lingering, and irradicable 7 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD form of coercion. Milgo Industrial, 203 NLRB 1196, 1200 (1973); Jimmy-Richard Co., supra; Stride Rite Corp., supra. Such conclusion applies with cogency in a situa- tion like that herein, where the plant's profit loss has been stressed, and employees who pointedly informed of the ease of plant relocation. In the instant case the employees had designated the Union as bargaining agent . That majority had been dissi- pated by Respondent's unlawful conduct. An argument might be made that inasmuch as the election vote was close, despite the lawful coercion, given the remedial impact of a traditional remedy, i.e., posting of notices, etc., that a second election would provide employees with an uncoerced opportunity to express their choice. Although I do not dismiss that argument lightly, I do not agree with it. Respondent 's coercive message was force- fully and repetitively propagated to the entire bargaining unit. Its impact was evidenced by comments and con- cerns raised at employee meetings . Part of that message stressed the element of futility , i.e., whatever employee concerted efforts were made was of no consequence. Thus employees were told that it was futile to organize, futile to bargain, and futile to strike. In my judgment it would truly be futile to order a second election. The ma- jority of employees had designated the Union as bargain- ing agent. After much campaigning and much litigation the employees cannot now be expected to enter the elec- toral process with a fresh and open mind as to the issue of representation . The length of time that had elapsed herein does not act as a cleansing agent , but serves only as a reminder of the futility of their original efforts. Most likely to be blurred in memory are the fine points of bar- gaining as explained by Attorney Treacy in those 23 meetings. Most likely to be indelibly retained in aware- ness are the written references to strikes and plant clo- sures and loss of jobs. As the witnesses in this proceed- ing revealed, after the passage of time only the essential thrust of campaign propaganda is recalled and details are obscured. Furthermore, the Respondent's conduct that emanated from its highest levels of authority does not appear to be that of some briefly errant adventure. Rather, the Respondent's coercive literature was deliber- ately and carefully prepared , and it persisted and acceler- ated in coerciveness up to the election date despite the concerns raised by employees at the meetings. Following the election, Respondent did not cease its unlawful con- duct. Rather, it remedied certain persistent employee complaints and did so in a manner to enhance the posi- tion of the unlawfully dominated Employee Committee. By its postelection conduct the Respondent implied to its employees that it would be more responsive to their complaints and grievances and that the "outside" Union was not necessary for such a function , i.e., a mechanism to resolve grievances. The failure to recall to employ- ment a well-known union activist served as a small re- minder of adversity that can befall employees who sup- port union representation. Such postelection conduct fur- ther tended to erode the Union's status and suggests a proclivity to engage in future unlawful conduct if an- other election were directed. I do not conclude that the posting of a notice can ade- quately exercise the fears that necessarily must have been implanted in the consciousness of the employees , nor can such notice resurrect and restore to their prior levels of intensity, the enthusiasms, energies, self-confidence, and commitments of employees who had desired something that their employer vigorously opposed but that was, they were led to believe, guaranteed them under the law if they formed a majority among their coworkers, i.e., union representation . Therefore I conclude that a second election is not appropriate , but rather that the Respond- ent ought to be ordered to bargain with the Union as of the commencement date of the unfair labor practices cal- culated to dissipate the majority status of the Union. On the foregoing findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. All full-time and regular part -time production and maintenance employees , including shipping and receiving employees employed by Respondent at its Radcliff, Ken- tucky facility, but excluding office clerical employees, technical employees, professional employees, and all guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. From about January 1 to February 3, 1980, a major- ity of the employees of Respondent , in the unit described above, designated and selected the Union as their repre- sentative for the purpose of collective bargaining. 3. At all times since February 27, 1980, the Union, by virtue of Section 9(a) of the Act , has been, and is, the exclusive representative of the employees in the unit de- scribed above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 4. From February 27 until March 19, 1980, by distrib- uting literature to employees that threatened them with loss of jobs, loss of benefits, inevitable strikes, and plant closure in the event they designated the Union as the collective-bargaining agent and that implied that it would be futile for them to select the Union as their col- lective-bargaining representative, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act and has interfered with the conduct of the election conducted in Case 9-RC-13225. 5. By coercively interrogating employees concerning their union sympathies , and by threatening an employee with plant closure if the Union were selected as to the collective-bargaining agent, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act and has interfered with the conduct of the election. 6. By soliciting and promising to correct employee complaints and grievances during its meetings with em- ployees in March 1980 in order to induce employees to reject union representation , the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act and has interfered with the conduct of the election. 7. Since November 2, 1979, and all material times thereafter, the Respondent has dominated and interfered UARCO, INC 93 with the administration of, and rendered unlawful assist- ance and support to , the Employee Committee, a labor organization within the meaning of Section 2(5) of the Act, and thereby has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(2) and (1) of the Act. 8. By its postelection remedying of employee com- plaints concerning parking lot security , mandatory Satur- day overtime, and seniority, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a)(2) and (1) of the Act. 9. By discriminatorily terminating the employment of Martha Langdon on April 10, 1980, because of her union activities and sympathies, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. 10. The Respondent has not engaged in violations of the Act other than those herein specifically found. [Recommended Order omitted from publication.]