Emerson Electric Co.

EMERSON ELECTRIC CO Emerson Electric Company and General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Cases 9-CA- 23330-1, 9-CA-23580-1, 9-CA-23669, and 9- RC-14993 18 January 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On 18 May 1987 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions as modified, to modify the remedy, and to adopt the recommended Order as modified3 and set forth below. 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by creating the impres- sion of surveillance. The record establishes that in September 19864 employee Alan Alsup met with i On I November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge stated in sec I, par 8 of his decision that the Respondent posted a correction on the company bulletin board regarding its state- ment to employees that the Jeff Boat plant had closed The document posted was not a correction, but merely reiterated the Respondent's pre- vious statement 3 The judge included a visitatorial clause in his recommended Order authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause In par l(f) of the recommended Order, the judge used the broad cease-and-desist language, "in any other manner " We have considered this case in light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that a broad remedial order is inappro- priate inasmuch at it has not been shown that the Respondent has a pro- clivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fun- damental statutory rights We shall modify the judge's recommended Order accordingly We shall also issue a new notice 4 All dates are in 1986 1065 Plant Manager Michael Gilbert in Gilbert's office to discuss a dispute between Alsup and another employee. According to the credited testimony of Alsup, after Gilbert discussed Alsup's complaint about the other employee, Gilbert told Alsup that his work was acceptable but that he had a reputa- tion of having a "bad attitude." When questioned about what he meant by "bad attitude," Gilbert stated that maybe he had used the wrong word, that perhaps "indifferent" was what he had meant to say. Gilbert then added, "Like this business about the union." Gilbert stated that he was aware of Alsup's union involvement. When Alsup ques- tioned him about what he meant by union involve- ment, Gilbert stated that maybe he had used the wrong word again. Gilbert stated, "I'm aware of the fact that you've attended some meetings and you've expressed an interest in the union." Gilbert added that he did not consider Alsup to be a "pusher" for the Union like some of the people on the floor that were wearing buttons and all that. Gilbert stated that what he meant by "indifferent" was that Alsup had not "pushed" one way or the other concerning unionization. The Respondent excepts to the judge's finding, arguing, inter alia, that because Alsup made no secret of his having attended union meetings, Gil- bert's comments could not have created the impres- sion of surveillance. We agree with the judge that under the circumstances Gilbert's statements to Alsup violated Section 8(a)(1) of the Act. Even if it was common knowledge at the plant that Alsup had attended union meetings, Gilbert's statements went beyond permissible comments. Gilbert stated not only that he knew that Alsup had attended union meetings, but also indicated that he knew the extent of this involvement. As set forth above, Gil- bert said that he knew that Alsup had "expressed an interest in the union," but that Gilbert did not consider Alsup to be a "pusher" for or against the union effort. These statements would reasonably suggest to Alsup that the Respondent was closely monitoring the degree of his union involvement. For these reasons we find that the Respondent cre- ated the impression of surveillance in violation of Section 8(a)(1) of the Act.5 5 The Respondent excepts to the judge's ruling denying it the right to cross-examine Alsup about his testimony on direct examination that he had discussed with other employees the fact that he attended union meet- ings If such cross-examination had been allowed, it would, at most, have established that it was common knowledge that Alsup attended union meetings As noted above, however, our conclusion that the Respondent created the impression of surveillance is based not on Gilbert's statement that he knew Alsup attended union meetings, but on Gilbert's -statements revealing that he knew the extent of Alsup's involvement with the Union Thus, we find that the evidence the Respondent sought to adduce would not affect the result in this case 287 NLRB No. 102 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The judge concluded that the Respondent vio- lated Section 8(a)(1) of the Act by telling employ- ees that unionization necessarily leads to strikes which put at risk the continuation of wages, hours, and working conditions presently enjoyed by em- ployees. The judge recognized that Gilbert did not tell employees that unionization would automatical- ly cause a strike, but he found that Gilbert por- trayed a picture in which unionization would likely lead to a strike based on Gilbert's statements and his use of placards to illustrate his points. The judge found that such statements violated Section 8(a)(1) of the Act. The Respondent contends that such a finding is not supported by the record be- cause employees were never told that a strike was inevitable. We agree with the Respondent that Gil- bert's statements concerning the possibility of strikes did not violate the Act. The record establishes that Gilbert conducted a series of meetings with groups of employees in late October. At these meetings, Gilbert discussed with the employees the union campaign. Employee wit- nesses who attended the 24 October meetings testi- fied that Gilbert never told employees that a strike was inevitable if the employees voted for a union. Contrary to the judge's finding, the record evi- dence establishes that Gilbert through his state- ments and the use of the placards merely told em- ployees that the possibility of a strike existed if the Union won. Such statements do not violate the Act. Therefore, we reverse the judge's finding that the Respondent violated Section 8(a)(1) of the Act by telling employees that unionization would nec- essarily lead to strikes. We will modify the judge's Conclusions of Law and the recommended Order and notice accordingly. 3. The judge found that the Respondent violated Section 8(a)(1) of the Act by telling employees that strikers can be replaced without distinguishing be- tween economic and unfair labor practice strikes. This matter was neither alleged in the complaint nor litigated before the judge. Instead, the com- plaint alleges that about 23 October 1986 the Re- spondent created the impression that a strike was inevitable if the Union was voted in and that all employees would be permanently replaced in the event of a strike. As noted above, we have re- versed the judge's findings that the Respondent told employees that unionization necessarily leads to strikes. We find, however, that Gilbert violated Section 8(a)(1) of the Act by threatening job loss in the event employees went on strike. According to the credited testimony of employee Wendell Pulley on cross-examination, employee Jane White asked Gilbert at a group meeting of 30 to 40 employees, if the Union calls a strike, did she the distinction drawn in fn 8 of Eagle Comtromcs, supra have to "go out." Gilbert replied, yes, once the Union was voted in, employees were automatically a part of it and if the Union went on strike they had to go out. Gilbert stated that the Respondent could hire permanent replacement workers. Pulley testified that someone then asked if, after the strike was settled, an employee could come back to work. Gilbert replied that the Respondent did not have to take an employee back. We find that Gil- bert's response that the Respondent did not have to take back strikers constitutes an unlawful threat of job loss. Such a statement implies that strikers have no reinstatement rights and is inconsistent with em- ployees' rights under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Laidlaw guarantees permanently replaced economic strikers who have made unconditional offers to return to work the right to full reinstatement when positions are avail- able and to be placed on a preferential hiring list if positions are not available. This finding is fully consistent with the Board's decision in Eagle Com- tronics, Inc., 263 NLRB 515 (1982), which held that an employer's statement that it is free to hire per- manent replacements for economic strikers does not violate Section 8(a)(1) of the Act. By going beyond that statement and asserting that it did not have to take any striker back, the Respondent here "threaten[ed] that, as a result of the strike, employ- ees [would] be deprived" of their Laidlaw rights. Id. at 516." Accordingly, we find that Gilbert vio- lated Section 8(a)(1) of the Act by threatening em- ployees with job loss if they went on strike and will modify the judge's Conclusions of Law and the recommended Order and notice. For the reasons set forth above, we also find that the Respondent's conduct warrants setting aside the election. In so finding, we note that during the critical period the Respondent created the impres- sion of surveillance, threatened employees with dis- charge if they selected the Union, and before a group of some 30 to 40 employees threatened em- ployees with job loss if they were to go out on strike. Accordingly , as it is likely that such conduct affected the results of the election, we will set this election aside and direct a new election. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. "3. By threatening to close the plant if the em- ployees continue to engage in union activities; by creating in the minds of employees the impression 6 Member Babson finds it unnecessary in the context here to pass on EMERSON ELECTRIC CO 1067 that their union activities are the subject of compa- ny surveillance; by threatening to discharge em- ployees if they vote to select a union as their bar- gaining agent ; and by threatening employees with job loss if they go out on strike, the Respondent violated Section 8(a)(1) of the Act." ORDER The National Labor Relations Board orders that the Respondent, Emerson Electric Company, Rus- sellville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to close the plant if employees continue to engage in union activities. (b) Creating in the minds of employees the, im- pression that their union activities are the subject of company surveillance. (c) Threatening to discharge employees if they vote for unionization. (d) Threatening employees with job loss if they go out on strike. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Russellville, Kentucky, copies of the attached notice marked "Appendix. 117 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent'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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election con- ducted in Case 9-RC-14993 is set aside. IT IS FURTHER ORDERED that Case 9-RC-14993 is remanded to the Regional Director for Region 9 for the purpose of conducting a second election at such time as the Regional Director deems appro- priate. ' If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to close the plant if em- ployees continue to engage in union activities. WE WILL NOT create in the minds of our em- ployees the impression that their union activities are subject to company surveillance. WE WILL NOT threaten to discharge employees if they vote for unionization. WE WILL NOT threaten employees with job loss if they go on strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. EMERSON ELECTRIC COMPANY Damon W Harrison Jr., Esq., for the General Counsel. D. Michael Linihan, Esq., of St Louis, Missouri, for the Respondent Ralph Logan, Esq, of Louisville, Kentucky, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR, Administrative Law Judge. This case came on for hearing before me on a consolidat- ed unfair labor practice complaint, i issued by the Re- ' The principal docket entries in the complaint cases are as follows Charge filed against the Respondent by General Drivers, Warehouse- men and Helpers Local Union No 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters), on July 16, 1986, in Case 9-CA-23330- 1, original complaint issued there against the Respondent by the Region Director, Continued 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gional Director of Region 9, which alleges that Respond- ent Emerson Electric Company2 committed violations of Section 8(a)(1) of the Act Consolidated with the com- plaint cases are objections to the conduct of an election which took place on October 31, 1986. The objections allege that most, though not all, of the unfair labor prac- tices set forth in the consolidated complaint also consti- tute conduct which would warrant the setting aside of the election 3 More particularly, the consolidated com- plaint alleges that the Respondent threatened to close the Russellville plant if employees continued to engage in union activities, created among employees the impression that their union activities were the subject of company surveillance, told employees at a group meeting that strikes would be inevitable if a union came into the plant, and threatened to discharge employees if they voted for a union. The Respondent denies these allegations On these contentions, the issues here were framed.4 FINDINGS OF FACT I THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE CONDUCT ALLEGED Respondent operates a large number of manufacturing facilities throughout the United States, including a plant at Russellville, Kentucky In all of its facilities the Re- spondent employs a total of 60,000 people. At Russell- ville it is engaged in the production of motors which are components of compressors used in heating and air con- ditioning units . The Russellville plant is the only one in- volved in this proceeding It was opened more than 25 Region 9, on August 20, 1986, Respondent's answer filed on September 18, 1986, charge filed here against the Respondent by the Teamsters on September 30, 1986, in Case 9-CA-23580-1, and in Case 9-CA-23669 on October 27, 1986, Respondent's answer filed on November 12, 1986, order consolidating all complaint cases issued by the Regional Director, Region 9, on December 10, 1986, hearing held in Bowling Green, Ken- tucky, and in Nashville, Tenessee, on January 22 and 23 and March 30, 1987 2 Respondent admits, and I find, that it is a Missouri corporation which maintains an office and manufacturing facility in Russellville, Ken- tucky, where it is engaged in the manufacture of hermetic motors and related products During the preceding 12 months, the Respondent, in the course and conduct of this operation, has sold and shipped from its Rus- sellville, Kentucky plant directly to points and places located outside the Commonwealth of Kentucky goods and materials valued in excess of $50,000 Accordingly, it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Teamsters are a labor organization within the meaning of Section 2(5) of the Act 3 A represetation petition was filed here on August 27, 1986, by the Teamsters Accordingly, any unfair labor practices committed prior to that date may not constitute objectionable conduct Goodyear Tire & Rubber Co, 138 NLRB 453 (1962) The principal docket entries in the representation case here are as follows Petition filed on August 27, 1986, by the Teamsters seeking an election in Case 9-RC-14993 in a unit of the Respondent's Russellville, Kentucky production and maintenance employees, with the usual exclusions, inter- vention filed by United Food and Commercial Workers District Union No 405, AFL-CIO-CLC (UFCW), stipulated election agreement ap- proved by the Regional Director, Region 9, on September 18, 1987, rep- resentation election conducted by the Board on October 31, 1986, in which 149 votes were cast for the Teamsters, 20 votes were cast for the UFCW, and 289 votes were cast against any union, timely objections to the conduct of the election filed by the Teamsters on November 5, 1986, Report on Objections issued by the Regional Director for Region 9, on December 10, 1986, consolidating objections with the complaint cases outstanding Transcript corrections are noted and corrected years ago and currently employs about 475 production and maintenance employees. They have never been rep- resented by any labor organization However, an unsuc- cessful effort to organize took place in Russellville in 1974. In the late spring of 1986, the Respondent gave its Russellville employees an across-the-board cut of 7 per- cent in their wage rates This action triggered an orga- nizing effort by the Teamsters and the UFCW, which began in late May or early June. On July 11, Plant Manager Michael Gilbert conducted a series of what he called "shut down" meetings among production and maintenance employees. On about 17 dif- ferent occasions, he visited portions of the plant, shut down the operation in the area temporarily, and ad- dressed the employees working in that section. The sub- ject of the July 11 "shut down" meeting was the pro- posed acquisition on September 1 by the Company of the Copeland Corporation, which operated a plant at Hum- boldt, Tennessee, and other plants throughout the United States The Copeland plant at Humboldt purchased motors from the Emerson plant at Russellville, although it also acquired such items from Emerson competitors as well. It also manufactured hermetic motors. Gilbert told employees during the course of these short, impromptu meetings that Emerson ws considering the purchase of the Copeland Corporation and that this purchase could have both good and bad effects. Emerson would acquire another plant at Humboldt that manufac- tured hermetic motors, as did Russellville He expressed the opinion that this fact could upset another Emerson customer, a company located in Tecumseh, Michigan, which was a Copeland competitor. He thought, howev- er, that Emerson would have a competitive advantage. He also expressed the opinion that the proposed acquisi- tion could signal the possibility of more business at Rus- sellville and more stability for its plant, which was then operating at a sharply reduced capacity. He told employ- ees that the sale was set for September 1 and urged them not to "do anything between now and then to mess things up " Gilbert then went on to discuss the unionization of the Russellville plant. He admits saying to employees: I have heard most employees feel a union is not in the best interests of the plant or the employees. Now is the time to stand fast. Let's direct our ef- forts toward making sure we are satisfying our cus- tomers and creating the right image for ourselves Now is a critical time If we hold firm, the unions and their handful of supportors will realize they are wasting their time The best thing that could happen for us right now would be for them to go away I credit testimony that, during at least two meetings, Gil- bert told employees, if he were sitting on the Emerson board of directors in St Louis and had to decide wheth- er to send orders to a plant that had union problems or one which did not, he would select the plant without problems He also warned employees that if they did not stop their union activities, the Russellville plant would crumble at their feet EMERSON ELECTRIC CO 1069 On September 17, the parties to this litigation executed an agreement setting October 31 as the date for the rep- resentation election Shortly thereafter, the Respondent held a series of meetings with its supervisory staff to inform them about the mechanics of the election and what should be expected of them as supervisors during the campaign that was about to take place At the con- clusion of this meeting, Joe Hildebrand, the production supervisor for the P-69 insert group, went down the as- sembly line in his area and spoke to employees in groups of three or four to inform them that the election would take place on October 31 and that there would be three unions plus the Company on the ballot 5 When Hilde- brand reached a portion of the production area where Alan Alsup, Rodney Johnson, and Mary J. Carter were working, he told them that the "spooks would be out early this year," meaning that the representation election would be conducted on Halloween day, October 31, and that there would be three unions and the Company on the ballot. I credit corroborated testimony to the effect that Hildebrand went on to say that there would be only one choice if employees wished to continue to work at Russellville Either Alsup or Carter then remarked that Hildebrand's comment sounded like a threat Sometime in September, Alsup was called to Gilbert's office to discuss a dispute that had arisen between Alsup and Larry Arnold, an engineer in the winding depart- ment. After discussing Alsup's complaint against Arnold, Gilbert went on to tell Alsup that his work was accepta- ble, but that he had a "bad attitude" and seemed to be indifferent to the welfare of the Company I credit Alsup's testimony to the effect that Gilbert told him on this occasion that he was aware of Alsup's involvement with the Union, namely, that Alsup had attended meet- ings and had expressed interest in the Union 6 He added that he did not consider Alsup to be one of the "push- ers" for unionization. By "indifferent," Gilbert explained to Alsup that he meant that Alsup had not really pushed one way or the other concerning the question of union- ization. Between September 17 and October 31 the Respond- ent conducted an aggressive drive to defeat the unioniza- tion of its plant It mailed between 6 and 8 pieces of lit- erature to its employees and posted 10 to 15 different pieces of antiunion literature on bulletin boards and in the plant cafeteria. About a week before the election Gil- bert conducted meetings in the plant conference room for groups of 20 to 30 employees About 17 of these meetings took place. Estimates of the length of these meetings ranged from 1 to 2 hours Gilbert spoke at this meeting, flanked by. other company officials as visual aids he used placards bearing legends written by magic markers and placed those placards around the wall of the conference room where employees could read them as he spoke 7 5 The United Automobile Workers were originally slated to be on the ballot but withdrew 6 Although disputing certain portions of Alsup's testimony, Gilbert ad- mited that he knew that Alsup had expressed interest in the Union be- cause such information had been relayed to him by unnamed individuals I requested the Respondent to make the placards available at the hearing and Respondent's counsel indicated that he would do so Howev- In making his appeal to employees to vote against the unions at the forthcoming election, Gilbert discussed topics similar to the ones outlined on the posted plac- ards He outlined the election procedures that would be followed on October 31, talked about increases in wages and benefits that employees had enjoyed since 1974 when the last union campaign had taken place in Russell- ville, gave employees some information concerning the background of the Company and of its Russellville plant, and discussed the inroads of foreign competition in the electric motor business He stated that foreign-made products now dominated the U S. market for hermetic motors to the point where Emerson was now the only domestic manufacturer of such motors Gilbert talked about pricing pressures in the market place and about the decline nationally in union membership, adding that the possibility of a wage cut was very real whether a union came into the plant or whether it did not He mentioned the Oscar Meyer plant as an example of a unionized plant which had suffered a wage cut He told employees that Teamsters represented Emerson employees at only four of its plants an that only 200 out of 60,000 Emerson employees were Teamsters members He talked about the record of Teamsters Local 89 at Jeff Boat in Jefferson- ville, Indiana, where a Teamsters-called strike to protest a $1 50 wage cut was unsuccessful In at least one of Gil- bert's sessions he told employees that the Jeff Boat plant was closed. He was called on that remark by employee Loyce Wells, whose relatives work at that establishment. Later, Gilbert was forced to retract the statement that the Jeff Boat plant had closed He went to Mrs. Wells' work station after the meeting and told her that he had caused the question to be checked out and had learned that the plant was still in operation doing warranty work and employed 60 to 80 employees, including salaried per- sonnel A correction to that effect was posted on a com- pany bulletin board. One of the points driven home by Gilbert is that, with- out a union, employees know what they have, while, with a union, they would not. The posted placard on this point contained two columns marked "certainty" and "uncertainty." Listed under "certainty" was the fact that the Company had no union at the present time and had an opportunity for continued progress Listed under "un- certainty" that comes with unionization were strikes, the question of how long a strike could last, when would ne- gotiations begin, when would they end, and the question whether negotiations would end with a contract or with a strike According to Gilbert, "I wanted to make the er, he did not, so we are forced to rely on the memories of various wit- nesses about what information they contained According to Gilbert, there were 50 placards that dealt essentially with 10 different subjects- election procedures, worldwide production information concerning her- metic motors, company wage increases and wage cuts compared with Company prices, the decline nationally in union membership, instances of wage concessions in bargaining units represented by the UFCW, the record of the Teamsters in Emerson Electric plants where there were Teamsters-represented units, the track record of Teamsters Local 89, the issue of certainty vs uncertainty (discussed above), mathematical compar- ison of the cost strikes vs their benefits using certain mathematical as- sumptions, Emerson's track record, 5 charts showing instances of strikes called by the UFCW, and ld charts showing instances of strikes called by various Teamsters locals 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD point that, you know, the certainty side of the chart was that we know what we have We have no union, and we all have jobs, and we have an opportunity to better our situation down the road, and on the uncertainty side of the chart, I was making the point that, with the Union we wouldn't know what we would have It would be vary uncertain." A great deal of time was spent, discussing strikes. Esti- mates in the record vary considerably as to how much of Gilbert's talks dwelt on this subject I discredit Gilbert's statement that he spent only 10 minutes on the subject during each talk. Charts outlined many of the strikes that the UFCW and the Teamsters had called elsewhere and what a hypothetical strike would cost Gilbert told em- ployees that a strike might very well be futile because Emerson had a record of not giving in to union demands and that Emerson had come to Russellville 25 years ago to get away from unions. I credit record testimony that Gilbert told one assembly of employees that, if a union came in, the first thing they would do is to call a strike. Although Gilbert did not say that unionization would "automically" cause a strike, he portrayed a picture in which unionization would likely lead to a strike He also pointed out that strikes often lead to the shutting down of a plant, the replacement of strikers, and the permanent loss of jobs Company Representative Chuck Kelly told employees during at least one meeting that a union could fine employees for crossing picket lines and for coming to work during a strike, and it could fine them for not attending union meetings at all Gilbert stated that, once a union came in, it was virtually impossible to get them out of the plant At one meeting employee Jane White asked Gilbert whether she would have to go on strike if a union was voted in, even if she did not want to strike Gilbert said she would have to do so, though he was challenged on that point by employee Wendell Pulley. Gilbert also told White that the Company could hire re- placements and did not have to take her back after a strike ended. Another employee asked Gilbert if the Company could raise or lower its production during a union campaign . Gilbert replied that it could do what- ever it wanted to run the Company efficiently during a union campaign On another occasion, Gilbert was asked during the course of one of his talks by Sue Latham whether employees could come to work during a strike He said that legally they could but that most people would not cross a picket line because they could be fined by the Union for doing so. He then added that, if em- ployees did not come to work, they could then be re- placed by the Company Gilbert made no distinction in this statement between economic strikers and unfair labor practice strikers.8 11. ANALYSIS AND CONCLUSIONS A Gilbert's July 11 Statement Credited testimony reveals that, in a speech given on July 11 to employees, Plant Manager Gilbert told them that, if they did not cease their union activities, the Rus- 8 In making these findings, I place no reliance on the General Coun- sel's witness Marvin Harrison, whom I regard as an unreliable witness sellville plant would "crumble in the dust" or "crumble at their feet " The organizing drive of two unions had been in progress about 2 weeks and Gilbert made specif- ic reference to it in his speech Whether or not Gilbert used the magic word "union"-and I find that he did- the context of his message was both clear and highly co- ercive It violated Section 8(a)(1) of the Act Because it was spoken before the Teamsters filed a representation petition on August 27, this statement may not serve as a basis for setting aside the October 31 election However, it provides a relevant and coercive backdrop for other events that did occur after the petition was filed, and those events should be read in light of the coercive char- acter of Gilbert's July 11 statement and the abiding animus it displayed. B. The Gilbert-Alsup Conversation During a private meeting in his office, called for the purpose of adjusting a minor dispute between two em- ployees, Gilbert took advantage of the occasion to criti- cize Alsup for his "bad attitude" and "indifference," which Gilbert equated to Alsup's lukewarmness in fight- ing unions Gilbert also told Alsup that he was aware that Alsup was not a "pusher" for or against the union effort. Such a statement has been held to be a violation of Section 8(a)(1) of the Act because it creates in the mind of an employee the impression that union activities, including his own, are the subject of company surveil- lance. Haynes Motor Lines, 273 NLRB 1851 (1985) Re- spondent seeks to justify or excuse this garden variety of illegal activity by contending that Gilbert already knew of Alsup's union sentiments because information to this effect had already been brought to his attention by others in the plant. It is quite immaterial to the violation found here as to how Gilbert engaged in surveillance of union activities of his employees or even whether he ac- tually had been engaged in actual surveillance The gra- vamen of the offense is that Gilbert brought to Alsup's attention that he knew what he was doing, and Gilbert's action in this regard is aggravated by the fact that he did so in a coercive setting and in a critical manner. C The Hildebrand Statement Sho tly after the election agreement in this case had been concluded, company supervisors were informed of its contents and of the basic mechanics of the vote, which was slated for October 31. Hildebrand relayed this information to employees under his supervision by speak- ing to them in groups of three or four In speaking to employees Carter, Johnson, and Alsup, Hildebrand was not satisfied merely to fill them in on the date of the election and the contents of the ballot. He added that employees had really only one choice at the election if they wanted to continue to work at Russellville. No doubt was expressed about what that choice was. His statement on this occasion constituted a threat to dis- charge employees in the event of a union victory and constitutes a violation of Section 8(a)(1) of the Act. EMERSON ELECTRIC CO. D. Gilbert's Preelection Speech An employer who presses an antiunion campaign effort to the ultimate limits the law allows takes the risk that it will go too far and, when it does, the Board and courts have expressed little sympathy with a tactic they have labeled "brinkmanship." Piezo Technology, 253 NLRB 900 (1980), Wassau Steel Corp. v. NLRB, 377 F.2d 369 (7th Cir. 1967), NLRB v. Solboro Knitting Mills, 572 F.2d 936 (2d Cir 1978), NLRB v. Rollins Telecasting, 494 F.2d 80 (2d Cir. 1974). Of particular significance to this case are Board cases to the effect that telling employees that unionization leads predictably or necessarily to strikes is a violation of the Act. Louis Gallet, Inc., 247 NLRB 63 (1980); National Micronetics, 277 NLRB 993 (1985). When an employer tells employees that they are subject to permanent replacement in the event of a strike and does not limit its remarks to economic strikes, it is guilty of misrepresenting to them their Laidlaw9 rights and thus violates Section 8(a)(1) of the Act. Redway Car- riers Inc, 274 NLRB 1359 (1985); National Micronetics, supra. Here again, the use or nonuse of magic words and niceties in grammar or syntax are quite beside the point if the thrust of the message is coercive in character. At the series of speeches that Gilbert gave a week before the election, the Respondent virtually bathed its employees in an atmosphere that equated unionization with strikes, and strikes with plant closings or replace- ment of strikers This was the message of the posters that it utilized to illustrate the text of Gilbert's remarks, and the fact that neither the posters nor Gilbert uttered the magic work "automatic" in discussing unionization and strikes is of no consequence. According to Gilbert and his posters, unions, and particularly the Teamsters and the UFCW, have had long and unsuccessful strike records that elsewhere have resulted in plant closings and the loss of jobs or lower pay for strikers. He told employees that unionization at Russellville would likely lead to a strike and, in one instance, said this was true because Emerson had a practice of not giving in to union demands. Employees were led to believe that they had to strike if a union called a strike and that they would be fined if they did not They could also be replaced, and no distinction was drawn between the Company's right to replace economic strikers and to replace unfair labor practice strikers Hence, the message was clearly con- veyed that, by voting for unionization, an employee was placing himself in a position in which he would be called on either to pay a union fine for not striking or suffer replacement if he did strike. Moreover, in discussing "certainty" vs. "uncertainty," Gilbert played a variation on the strike theme, implying that present wages, bene- fits, and "opportunity for progress" would be jeopard- ized and put at risk by unionization. Thus, employees were led to believe that a relatively secure and promising future would disappear if they selected a union as their bargaining agent . This is simply scaremongering of a most reprehensible variety and a far cry from the "pre- diction . . . carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably 9 Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir 1969) 1071 probable consequences beyond his control" which Gissel demands.'O Such remarks are highly inflammatory and coercive and constitute violations of Section 8(a)(1) of the Act Having been uttered to groups of employees during the period immediately preceding a representation election, they are grounds for setting aside that election and directing a rerun I so find and conclude. CONCLUSIONS OF LAW 1. Respondent Emerson Electric Company is now and at all times material has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to close the plant if the employees continued to engage in union activities; by creating in the minds of employees the impression that their union activities are the subject of company surveillance; by threatening to discharge employees if they voted to select a union as their bargaining agent ; by telling em- ployees that unionization necessarily leads to strikes which put at risk the continuation of wages, hours, and working conditions that they presently enjoyed, and by stating that striking employees could be replaced without distinguishing between economic and unfair labor prac- tice strikers, the Respondent violated Section 8(a)(1) of the Act. All such violations that occurred after August 27, 1986, constitute objectionable conduct warranting the setting aside of a representation election that was con- ducted on October 31, 1986 4. The aforesaid unfair labor practices and objection- able conduct have a close, intimate, and adverse affect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices and objectionable conduct af- fecting the result of an election, I will recommend that it be required to cease and desist therefrom and to take other affirmative actions that are necessary to effectuate the policies of the Act. Because the violations of the Act found are repeated and pervasive, I will recommend to the Board a so-called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act. Hickman Foods, 242 NLRB 1357 (1979). I will recom- mend that the Respondent be required to post the usual notice, advising its employees of their rights and of the results in this case. The General Counsel also seeks a vi- sitatorial clause permitting discovery under the Federal Rules of Civil Procedure in the event that the Board's io NLRB v Gissel Packing Co, 395 U S 575 at 619 (1969) Indeed, Gil- bert's speech dwelt almost exclusively on union activities in other compa- nies, not with prediction based on facts relating to the Respondent's oper- ation at Russellville 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Order must be enforced by a contempt proceeding in a court of appeals. I will recommend such an order [Recommended Order omitted from publication.]