Weather Shield Mfg , Inc

WEATHER SHIELD MFG Weather Shield Mfg , Inc, Millwork Div and Mid- western Industrial Council Local No 1035, af- filiated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO Cases 18- CA-7798, 18-CA-7952, and 18-RD-1172 December 20, 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 9, 1983, Administrative Law Judge Wil- liam A Gershuny issued the attached decision The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed a reply brief i The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent consistent with this decision 3 Contrary to the judge, we find that the Respond- ent engaged in unfair labor practices under Section 8(a)(1) and (5) and engaged in objectionable con- duct that warrants setting aside the election I FACTS The Union has represented the Respondent's production employees for almost 30 years On May 20, 1982, a petition was filed to decertify the i The Respondent has requested oral argument The request is denied as the record exceptions and brief adequately present the issues and the positions of the parties 2 The General Counsel and the Charging Party 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 Counsels motion in the alternative for a hearing de novo before a different administrative law judge is denied The General Counsel and the Union contend that the judge s conduct created the ap pearance of prejudgment and partiality The General Counsel argues that the judge interfered with her ability to elicit testimony by his practice of questioning witnesses She also contends and the records shows that the judge interrupted the General Counsel s examination of witnesses and in vited the Respondents counsel to move to stoke certain testimony The General Counsel further asserts that the judge s decision ignores the record maligns the Union and improperly resolves credibility issues be cause of prejudgment and bias Our review of the record reveals that some of the judge s remarks and behavior could well be interpreted as disparaging the General Counsel and the Union Although we do not condone the judges conduct the record as a whole is insufficient to es tablish bias With respect to the General Counsels allegation that the judge interfered with her ability to elicit testimony we note that no ex ceptions were filed concerning any of the judge s evidentiary rulings at the hearing 1 Union Prior to the decertification election 4 the Respondent, through President Edward L Schield, and Plant Superintendent Al Selk, conducted meet- ings with small groups of employees Schield and Selk informed employees at these meetings that contrary to the Union's claims about the possible loss of existing benefits if the Union were to be de- feated, the Respondent would make no changes in existing benefits In order to assuage employees' concerns about the possible loss of benefits, Schield signed and distributed a gilt-edged document enti- tled "NO CUT GUARANTEE" promising that existing pay and fringe benefits would not be cut or taken away Although guaranteeing to maintain existing benefit levels , neither Schield nor Selk promised any increase in benefit levels at these meetings During the preelection period , two of the Re- spondent's supervisors also discussed the union election with employees under their supervision According to the uncontradicted testimony of em- ployee Gary Thums, General Foreman Farrel Jourdan informed Thums in June 1982 that "we would probably have better insurance," like one of the Respondent's nonunion plants, if the Union was decertified 5 Employee Callie Tomczyk testified that in June 1982 Jourdan informed her that he felt "we would have a better pension plan if we would decertify the Union "6 Jourdan testified that he believed that the insur ance and pension plans at two of the Respondent's other divisions were better than the plans covering the employees represented by the Union and so in- formed the employees Jourdan did not deny the assertions of Thums and Tomczyk concerning his statements about the likelihood of improved insur- ance and pension benefits if the Union were to be decertified In addition to the statements attributed to Gener- al Foreman Jourdan, employee Duane Braun testi- fied that a second supervisor , Janille Zirngible, in formed him 2 weeks before the election that "if there was no Union in this plant there would prob- ably be a good chance that we would get a raise " Employee Lorraine Gengler testified also that a day or so before the election Supervisor Zirngible told her that "if there were no union that we 4 The election was conducted on July 15 1982 The tally of ballots showed 123 votes against representation and 110 for the Union There were no challenged ballots The parties bargaining agreement expired thereafter on August 1 1982 5 According to Thums one and possibly two other employees were present during Jourdan s remarks Thums also testified that he discussed Jourdan s remarks with the people I worked with outside and people at my table in the lunchroom 6 Tomczyk testified that Jourdan discussed this with her many times and that at least one other employee was present 292 NLRB No 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would more than likely get a raise " Gengler testi- fied that she did not recall whether Zirngible phrased her remarks as personal opinion but that Gengler "presumed" it was Zirngible's personal opinion Supervisor Zirngible testified to a conversation with her brother Bill Zirngible, who she super vised In this conversation, Zirngible stated that in her opinion the Respondent might give employees raises and a picnic if the Union lost the election Zirngible told her brother that "this is me talking, not the company " Supervisor Zirngible testified that it was possible that she told other unspecified employees that the Respondent might give employ ees raises and a picnic if the Union lost the elec tion Zirngible did not testify regarding the specific encounters with employees Braun or Gengler II DISCUSSION 1 We agree with the judge that the promises to maintain existing pay and fringe benefits made by the Respondent's president, Schield, and superin- tendent, Selk, at its meetings with groups of em ployees were nothing more than a promise to main tarn the status quo and, hence, were neither objec- tionable nor violative of Section 8(a)(1) Crown Chevrolet Co, 255 NLRB 826 fn 3 (1981), El Cid, Inc, 222 NLRB 1315 (1976) 7 2 The statements of General Foreman Jourdan and Supervisor Zirngible during the critical period, however, are of a different character General Foreman Jourdan expressed to employees the like- lihood of increased insurance and pension benefits and tied the conferral of these benefits directly to the Union's defeat in the election Supervisor Zirn- gible expressed to employees the likelihood of a wage increase and, like General Foreman Jourdan, tied this benefit directly to the decertification of 7 We agree with the judge that President Schield and Superintendent Selk made no impermissible statements in their meetings with employees The Respondents statement that following decertification at another fa cility employees lost nothing and currently have an employee handbook which covers wages fringe benefits and all other things like the afore mentioned NO CUT GUARANTEE is not a promise of increased benefits but is a reference to the status quo as memorialized in a written document Further the Respondents comparisons of wages and benefits between unit employees and employees of nonunion facilities amounted to assurances that the status quo would be maintained and were made in response to the Union s campaign claims that benefits might be cut if the Union lost Thus the Respondent summarized that having a union doesn t mean high wages or not having a union mean low wages In this context the comparison of wages and benefits was lawful Viacom Cable vision 267 NLRB 1141 (1983) The Respondents statement that it wanted a chance to prove for a year that we can do without the union did not constitute a promise of new benefits National Micronetics 277 NLRB 993 (1985) Finally the Respondents statements regarding the possibility of a strike were tied to the parties past bargaining history and were coupled with assurances that a strike depended on the nature of collective bar gaining and that the Respondent did not want to see a strike Thus it is clear that the Respondent did not give the impression that a strike was inevitable or that bargaining would be futile the Union 8 Thus, the Respondent, through Jour- dan and Zirngible, promised the likelihood of new and greater benefits if employees rejected the Union and exceeded the permissible bounds of merely as suring retention of the status quo 9 Accordingly, we find that the Respondent violated Section 8(a)(1)10 and engaged in objectionable conduct by these promises of benefits 11 3 The complaint alleges further that the Re- spondent violated Section 8(a)(5) and (1) by imple- menting unilateral changes and by refusing to bar- gain with the Union following the election, on the basis of the tally of ballots unfavorable to the Union The Respondent concedes that following expiration of the barga'ning agreement on August 1, 1982, it ceased processing grievances, ceased providing the Union with documents and informa tion, ceased participating in shop committee and safety committee meetings, and otherwise ceased dealing with the Union 12 The Respondent con- tends that its refusal to continue dealing with the Union was lawful because the Union lost a fair and untainted election and thus was not the majority representative of the Respondent's employees The Respondent relies on the Fifth Circuit's decision in Dow Chemical Co v NLRB, 660 F 2d 637, 657 (5th Cir 1981), in which the court rejected the view that an employer must refrain from making unilat eral changes until the results of a decertification election are certified 13 Instead, the court reasoned 8 As noted the statements attributed to Jourdan by employees Thums and Tomczyk and to Zirngible by employees Braun and Gengler are un contradicted Thus although Jourdan and Zirngible testified at the hear ing and were credited by the judge they did not deny or contradict the remarks attributed to them by these employees Further while Zirngi ble s remarks to her brother Bill Zirngible were accompanied by the statement that this is me talking not the company and were made to a family member there is no evidence that Zirngible s remarks to Braun and Gengler were accompanied by a disavowal that she was speaking on behalf of the Respondent 9 Because the Respondent promised to employees increased benefits this case is distinguishable from Weisser Optical Co 274 NLRB 961 (1985) in which the employer merely informed employees of alternative pension plans and made no reference to the level of benefits under those plans 10 We adopt the Judges finding that Jourdan did not coercively inter rogate employees by asking how they thought the election would go As the record fails to disclose the context in which the inquiry was made we find an insufficient basis to conclude that it was coercive and improp er i i In finding that the promises of benefit made by Jourdan and Zirngi ble interfered with the conduct of the election we note as described above that the promises were disseminated to other employees and that the tally of ballots was 123-110 so that a switch of only 7 votes could have altered the result 12 The Respondent filed no exceptions to the Judges finding that after the expiration of the contract it ceased recognition of the Union Indeed the Respondent asserts in its answering brief that it stopped dealing with the Union following contract expiration is Dow Chemical Co 250 NLRB 748 (1980) Dow Chemical Co 250 NLRB 756 (1980) Presbyterian Hospital 241 NLRB 996 (1979) WEATHER SHIELD MFG that unilateral changes implemented while objec- tions are pending are made at the employer's peril, i e , the unilateral changes violate the Act if the union retains its status as bargaining representative following disposition of the objections Because we have found that the Respondent en- gaged in objectionable conduct and have set aside the election, we find that under any view of the law, including the view of the Fifth Circuit relied on by the Respondent, the postelection unilateral changes implemented by the Respondent violated Section 8(a)(5) and (1) because the Union retained its status as bargaining representative 14 Accord- ingly, we find that the Respondent violated Section 8(a)(5) and (1) by discontinuing regular safety com- mittee and union shop committee meetings, by in- stituting unilaterally a voluntary short term layoff system,15 by modifying its practice of consulting with the Union regarding the establishment of new job classifications, by failing to process grievances through the established grievance procedure, and by refusing to provide information requested by the Union concerning pending or contemplated grievances, job postings, awards, layoffs, and re calls from layoff 11 4 We also find that the Respondent violated Section 8(a)(5) and (1) by refusing to deal with the Union, thereby effectively withdrawing recognition from the Union, and by refusing to meet with the Union for the purpose of negotiating a collective bargaining agreement The record shows that on August 16 and 31, 1982, the Respondent informed the Union that it declined to bargain on the basis of the results of the July 15, 1982 election Thus, with the expiration of the contract on August 1, 1982, the Respondent took the position that it no longer was obligated to recognize and deal with the Union Thereafter, on October 18, 1982, the Union again sought to bargain over wages, hours, and 14 Saints Mary & Elizabeth Hospital 282 NLRB 73 (1986) We note that the decertification petition was supported by 113 employees less than a majority of the unit employees We also note that the Respondent in refusing to bargain with the Union over these changes relied solely on the election results In these circumstances the presumption of continued majority status for the Union has not been rebutted See Alexander Linn Hospital 288 NLRB 103 108-112 (1988) is In October and November 1981 the Respondent rejected the Union s proposal that short term voluntary layoffs of approximately 4 weeks duration be implemented in lieu of layoffs of an indefinite dura tion In August 1982 the Respondent implemented unilaterally a system of short term layoffs of 4 and 6 weeks duration As there was no bar gaining concerning this change subsequent to the October 1981 rejection we have no basis for finding that the Union acquiesced to the unilateral changes of August 1982 16 The Union s requests concerned the type of information it had re ceived in the past and that had been the subject of contractual griev ances As it is clear that the information was sought for the purposes of collective bargaining we find no merit to the Respondents contention that the information was not relevant because it concerned matters that were the subject of pending unfair labor practice charges Cf WXON TV Inc 289 NLRB 615 (1988) 3 working conditions On October 20, 1982, the Re spondent again denied the Union's request to bar gain for a new contract based wholly on the elec tion results As we have found that the election was tainted by virtue of the Respondent's unlawful and objectionable conduct, it follows that the Re spondent could not rely on the results of the elec tion as a basis for declining to bargain with the Union and, therefore, violated Section 8(a)(5) and (1) by effectively withdrawing recognition and re fusing to bargain on that basis 17 CONCLUSIONS OF LAW 1 The Respondent, Weather Shield Mfg, Inc, Millwork Div, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 2 Midwestern Industrial Council, Local No 1035, affiliated with United Brotherhood of Car- penters and Joiners of America, AFL-CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act 3 The Union has been and continues to be the exclusive representative for the purposes of collec- tive bargaining of the following employees All production employees employed by Weather Shield Mfg, Inc, Millwork Division, at its Medford, Wisconsin facility, excluding office and clerical employees, temporary em ployees, and all other employees 4 By promising employees improved insurance and pension benefits and a wage increase if em- ployees voted to decertify the Union, the Respond- ent has violated Section 8(a)(1) of the Act and has engaged in objectionable conduct warranting set ting aside the election conducted on July 15, 1982 5 By discontinuing unilaterally regular safety committee and shop committee meetings, by insti- tuting unilaterally a voluntary short term layoff system, by modifying its practice of consulting the Union regarding the establishment of new job clas- 17 The Respondents initial refusal to bargain for a new contract oc curred on August 16 1982 before the issuance of Dresser Industries 264 NLRB 1088 (1982) overruling Telautograph Corp 199 NLRB 892 (1972) Its refusal on October 20 1982 occurred after the issuance of Dresser Those cases however concern a refusal to bargain on the basis of the filing of a petition Here the Respondents refusal to bargain was predi cated on the results of a tainted election not on the mere filing of a peti tion Accordingly as the Respondent did not rely on a petition neither Telautograph nor Dresser is controlling as to the Respondents obligations toward the incumbent bargaining representative But assuming the rel evance of the petition the Respondents October 20 1982 refusal to bar gain for a new contract occurred after the issuance of Dresser and would have violated the Act under the principles enunciated in that case Fur ther the Respondent effectively withdrew recognition from the Union on the expiration of the contract Again assuming the relevance of the peti tion the Respondents withdrawal of recognition was unlawful under either Telautograph or Dresser See Sanderson Farms 271 NLRB 1477 1480 (1984) and Alexander Linn Hospital supra at 109 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sifications, by failing and refusing to process griev- ances through the established grievance procedure, by refusing to provide information requested by the Union concerning grievances, job postings, awards, layoffs, and recalls from layoff, and by withdrawing recognition and refusing to bargain on a new contract with the Union, the Respondent has violated Section 8(a)(5) and (1) of the Act 6 The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action neces sary to effectuate the policies of the Act We shall order the Respondent to resume regular safety committee and shop committee meetings and to resume processing of grievances through the estab lished grievance procedure We shall also order the Respondent to furnish the Union with requested in- formation relevant to the Union's representative functions We shall also order the Respondent to bargain with the Union, on request, for a new col lective bargaining agreement and, if an agreement is reached, to incorporate it into a written contract Having found that the election conducted on July 15, 1982, should be set aside, we shall direct the Regional Director for Region 18 to conduct a second election once the unfair labor practices found have been remedied 18 ORDER The National Labor Relations Board orders that the Respondent Weather Shield Mfg Inc, Mill work Div, Medford, Wisconsin, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Promising employees improved insurance and pension benefits and a wage increase if employees vote to decertify the Union (b) Refusing to bargain with Midwestern Indus- trial Council, Local No 1035, affiliated with United Brotherhood of Carpenters and Joiners of ie We decline to dismiss the decertification petition as requested by the General Counsel and the Union Although Dresser Industries supra is not controlling with respect to finding the Respondent has unlawfully refused to bargain and withdrawn recognition it is applicable here remedially Thus the Union is entitled to bargain as the incumbent bargaining repre sentative notwithstanding the pendency of the decertification petition and as a remedy to the 8(a)(5) and ( 1) violations found the Respondent will be required to bargain with the Union In these circumstances we discern no useful purpose in ordering dismissal of the decertification peti tion when as here there is no contention that the petition was tainted or otherwise filed improperly Sanderson Farms supra at 1482 fn 14 America, AFL-CIO (the Union), by discontinuing unilaterally regular safety committee and shop committee meetings, by instituting unilaterally a voluntary short term layoff system, by modifying its practice of consulting the Union regarding the establishment of new job classifications, by failing and refusing to process grievances through the es- tablished grievance procedure, by refusing to pro vide information requested by the Union concern- ing grievances, job postings, awards, layoffs, and recalls from layoff, and by withdrawing recogni- tion and refusing to bargain on a new contract with the Union (c) 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) Resume regular safety committee and shop committee meetings with the Union and resume processing of grievances through the established grievance procedure (b) Furnish the Union, on request, with relevant information concerning grievances, job postings, awards, and layoffs and recalls from layoff (c) Rescind, on request of the Union, any changes in the unit employees' terms and condi tions of employment that were made without giving the Union notice and an opportunity to bar gain about such changes (d) Recognize and, on request, bargain collec tively with the Union as the collective-bargaining representative of all employees in the appropriate unit described below and, if an agreement is reached, incorporate such agreement into a written contract The appropriate unit is All production employees employed by Weather Shield Mfg, Inc, Millwork Division, at its Medford, Wisconsin facility, excluding office and clerical employees, temporary em ployees, and all other employees (e) Post at its facility in Medford, Wisconsin, copies of the attached notice marked 'Appen dix "19 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representa tive, shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 19 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board WEATHER SHIELD MFG 5 where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (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 election con ducted on July 15, 1982, in Case 18-RD-1172 be set aside [Direction of Second Election omitted from pub lication ] APPENDIX WE WILL recognize and, on request, bargain col lectively with the Union in the appropriate bar- gaining unit and, if an agreement is reached, incor porate that agreement into a written contract The appropriate unit is All production employees employed by Weather Shield Mfg, Inc, Millwork Division, at its Medford, Wisconsin facility, excluding office and clerical employees, temporary em- ployees, and all other employees WEATHER SHIELD MFG, INC, MILL WORK Div 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 WE WILL NOT promise you improved insurance and pension benefits and a wage increase if you vote to decertify Midwestern Industrial Council, Local No 1035, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO WE WILL NOT refuse to bargain with the Union by discontinuing unilaterally regular safety commit- tee and shop committee meetings, by instituting unilaterally a voluntary short term layoff system, by modifying our practice of consulting the Union regarding the establishment of new job classifica- tions, by failing to process grievances through the established grievance procedure, by refusing to provide information requested by the Union con cerning grievances, job posting, awards, layoffs, and recalls from layoff, and by withdrawing recog- nition and refusing to bargain on a new contract with the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the excer- cise of the rights guaranteed you by Section 7 of the Act WE WILL resume regular safety committee and shop committee meetings with the Union and WE WILL resume processing of grievances through the established grievance procedure WE WILL rescind, on request of the Union, any changes in employees' terms and conditions of em ployment that were made without giving the Union notice and an opportunity to bargain about such changes WE WILL furnish the Union, on request, with rel- evant information concerning grievances, job post- ings, awards, layoffs, and recalls from layoff Barbara Isaacman Esq for the General Counsel David R Fernstrum Esq of Grand Rapids, Michigan for the Respondent Michael P Fishman and Bruce Baler for the Charging Party Union Dennis J Weden Esq of Milwaukee, Wisconsin for Pe titioners amicus curiae DECISION STATEMENT OF THE CASE WILLIAM A GERSHUNY, Administrative Law Judge Consolidated for a hearing conducted in Medford Wis consin, on February 23 and March 1-3, are union objec tions to the conduct of a decertification election that it lost with 47 percent of the vote, allegations of preelec tion 8(a)(1) conduct that parallel and go beyond those objections and allegations of postelection 8(a)(5) con duct There are no 8(a)(3) allegations Based on the record evidence including my observa tions of witness demeanor I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The complaints allege the answers admit and I find that Respondent is an employer within the meaning of the Act II LABOR ORGANIZATION INVOLVED The complaints allege the answers admit and I find that the Union is a labor organization within the meaning of the Act III UNFAIR LABOR PRACTICES A Background The Employer is engaged in the manufacture of wood products at 12 plants throughout the United States At eight of those plants, the employees are unorganized at the other four including the Medford plant, which is the subject of these proceedings the employees are repre sented by the Union The Employer has had a continu ous 30 year bargaining relationship with the Union and there is no evidence of past union animus The latest 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD contract at the Medford plant expired on August 1, 1982 and no contract presently is in effect On May 20, 1982 a decertification petition was filed by a bargaining unit employee and supported by the sig natures of 113 other employees Prior to the hearing nei ther the Union nor the employer was aware of the number of signatories and at no time has their identity been disclosed by the General Counsel There is no alle gation, contention, or suggestion here that the Employer circulated, sponsored or supported the petition or other wise was responsible for petitioners campaign activities During May and June 1982, 64 employees revoked their dues checkoff authorizations On June 1 decertifi cation leader Scott informed the plant manager that over one half of the people had signed the petition At the time, the work force consisted of approximately 150 working employees and 100 laid off employees Finally, a June 14 union handout indicated that its Vote Yes' committee had but 23 members A consent election was conducted on July 15 Of the 233 votes case, 123 (or 53 percent), were cast against the Union Objections were filed by the Union on July 21 and, by order dated October 13, the the Regional Direc tor ordered that they be consolidated for hearing with other unfair labor practice allegations i B The Preelection 8(a)(1) Allegations Two types of conduct are alleged as unlawful The first is based on speeches made to all employees on July 2, 8 and 13 by Company President Shield and Plant Su perintendent Selk and consists essentially of alleged promises of better treatment guarantees of no wage ben efit cuts, and threats of a refusal to bargain if the Union won the election Except for the guarantees of no wage cuts (which are admitted), these allegations essentially are based on the testimony of one employee that Selk de viated materially from a prepared text and involve sera ous credibility issues The second type is based on several isolated conversa tions between two of the Employers eight supervisors and a small number of employees involving promises of no loss of wages and benefits if the Union lost the elec tion increased wages and benefits and one instance after the election of an alleged interrogation of one em ployee by one of those two supervisors as to how that employee voted 1 The Employers no cut guarantee The Employers entry into the election campaign came on July 2 2 weeks before the July 15 election and 4 weeks after the initiation of the Unions campaign that was directed by International Representative Fishman The Employers campaign consisted of three speeches delivered by President Shield and Plant Superintendent i By letter dated August 30 International Union Representative Fish man who directed the election campaign advised all employees inter alia that On August 19 1982 the National Labor Relations Board ruled that because of illegal conduct on the part of the Company the election results were being thrown out (G C Exh 7) He testified that he was so advised by an unidentified Board agent The impact of this misstate ment on the remedy sought is discussed below Selk to groups of employees on July 2, 8, and 13, and one July 14 handout, which echoed a theme of two of the speeches that, contrary to union assertions, wages and benefits would not be cut if the Union lost the elec tion In early June, each of the Employers supervisors specifically had been instructed not to promise, threaten, or interrogate employees not to encourage employees to vote, and to say as little as possible about the election Admittedly, the Employer was quiet prior to July 2 and made no statements concerning wages and benefits prior to the July 8 Selk speech The principal reasons for the Employers entry into the campaign rumors of threats of bodily harm and property damage to decertification proponents and their families, and a continuous flow of statements, oral and written, that wages and benefits would be reduced if the Union lost the election An examination of the Union s statements in this regard will serve to put the Employer s no cut promise into perspective Admittedly, the Union injected the issue of wage and benefit cuts into the campaign and its message was keep the Union and retain your benefits' The initial piece of union literature was distributed to all employees on June 10 and warned that if the Union is voted out the Em ployer would be able to discharge employees without cause, reduce wages and eliminate all benefits More specifically, the document (R Exh 4(a)) provided in rel evant part as follows 5 What if the Union is voted out) If the majority of employees vote NO, then on August 1 when the contract expires there will be no Union at the plant There will be no contract no grievance procedure NO GUARANTEED BENE FITS AND WAGES The Company will be able to change your wages hours and working conditions as they see fit without bargaining or even asking for your approval They will set all conditions of employment This means they can fire you if they want for almost any reason They can cut your wages or they can take away your insurance vacation holidays or anything else It will be up to them 2 In a June 21 newsletter (R Exh 4(c)), the Union re minded employees of the lower wage rates at the Com pany s Logan plant asking, is this what you want9 and a union supporter warned that without a union management could keep things as they are or take anything away from you if they chose so There would be no guarantee 2 Admittedly both Fishman who authorized the document and Bill Zirngible a leading union supporter knew the statement to be inaccurate in the sense that in their view the obligation to bargain does not end until the Union is finally decertified Yet neither made any effort to inform the employees of their real understanding that the Employer would be required to continue to bargain even after a union loss on July 15 and expiration of the contract on August 1 The impact of this similar assertions made by the Union on the relief sought here is discussed below WEATHER SHIELD MFG A July 13 newsletter (R Exh 4(h)) warned that if the workers lose the company will have full rein to do whatever they want with your wages Commencing at a meeting of 25-40 employees on June 15 leading union supporter Bill Zirngible admittedly told employees that all benefits would be lost if the Union lost the election If the Union is voted out, our benefits aren't guaranteed and the Company doesn t have to bar gain The Employers first response to the Unions wage cut threats was during the July 8 speech of Plant Super intendent Selk, read verbatim from a prepared text (it Exh 5) In the [two other plants] that have voted unions down Weather Shield has not cut any wages or fringe benefits Based on that history I expect Weather Shield will make no changes in wages, personal days, vacations, holidays, dental insurance seniority or employees share of hospitalization in surance here at [Medford] At [those two other plants] no employee was discharged for sup porting the Union nor will any employee here be discharged for supporting the Union There followed a speech delivered to all employees on July 13 by President Shield (Jt Exh 5) in which he re cited the rumors of wage cuts in the event of loss of a Union and stated If you vote the Union out on Thursday, Weather Shield will not cut your wages and will not take away any of your fringe benefits In our other plants that have voted down union no employee has received a pay cut or lost any fringe benefits as a result of voting down the Union The Union is only trying to use scare tactics to frighten you into voting for them So if I were you I would ignore them and vote your own conscience not on threats and rumors A written guarantee (Jt Exh 6) identical to Shield s verbal assurances of July 13, was distributed to employ ees on July 14 the day before the election The Union s threats of wage cuts in the event it was voted out on July 15 created a great deal of concern among the employees and they voiced their fears among themselves and with two of their supervisors Farrel Jourdan and Janille Zirngible Zirngible admittedly reassured her brother Bill Zirngi ble and others whom she supervised that in her opin ion employees would not lose benefits if the Union lost and said they might even get raises and a picnic One of those conversations appropriately was described by a coemployee who had overheard it as nothing more than one of those brother sister kinds of things it was prob ably this conversation that followed one of Selk's speeches during which Bill Zirngible blew up and had to be calmed down afterwards and reassured by his sister that there was nothing to worry about the Company will take care of you Bill Zirngible and a coemployee also testified that she predicted an economic boom and full employment at the plant throughout the winter 7 There is no testimony however, that she tied her eco nomic forecast to the outcome of the July 15 election or even that it was viewed as a promise in exchange for a vote In addition, I take note that during this period the media was continually reporting identical (and conflict mg) op nions from public and private sources forecasting an economic recovery by winter both for the housing in dustry and employers like Weather Shield who serve the housing industry 3 2 The Jourdan postelection interrogation On the first day of the hearing, the General Counsel was permitted to amend the complaint to add an 8(a)(1) allegation that, 4 days after the election, Supervisor Jour dan asked one employee how she voted Barbara Faude testified in support of the allegation and Jourdan denied asking her how she voted Faude is not a reliable wit ness, in my opinion, based on my observation of her de meanor Accordingly, this allegation is dismissed for want of evidence Throughout, I have credited the testimony of Selk, Janille Zirngible, and Jourdan Based on my observations of their demeanor on the stand, I find them to be candid forthright, and reliable reporters of the facts On the other hand, I reject the testimony of Bill Zirngible As a witness he was vague unresponsive and reluctant to testify to anything except those events he perceived to support the objections and charges He was considerably less than candid as to the matter discussed above in foot note 2 In testifying that Selk clearly deviated from his speech and stated that the Employer would not bargain with the Union, Zirngible could only have misunder stood Selk or fabricated his testimony If it were the former, it is difficult to understand why neither he nor any other employee ever said anything about it after wards to either Selk or anyone else despite the opportu nity to do so, immediately after the speech, in a question and answer period Noteworthy is the fact that no other employee could substantiate his testimony in this regard In his zeal to support the Union s cause Zirngible lost sight of the truth C The Postelection 8(a)(5) Conduct The General Counsel alleges essentially that after the July 15 election and more particularly after the contract expired on August 1 the Employer has refused to bargain over a new contract has refused to continue to imple ment certain terms of the expired contract relating to monthly meetings and grievance handling has unilateral ly altered its voluntary layoff program has refused to provide the Union with requested information allegedly necessary for grievance handling, and has generally an nounced that it no longer recognized the Union as bar gaining representative of the employees and would no longer deal with the Union 9 Jourdan likewise echoed management s no cut guarantee in conver sations with the 75-80 employees he supervised during the week before the election His admission that when the subject was raised by employ ees he asked how they thought the election was going is not an imper missible inquiry into voting intentions The postheanng motion to amend (G C Br p 20 fn 17) is denied 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Except for whether the voluntary layoff program changes were agreed to months before by the Union, the facts are virtually undisputed In dispute is whether, under the circumstances present here, the Employer had a duty to bargain with the Union following the election and expiration of the contract 1 Nonrecognition of the Union Proceeding on the basis of advice from experienced labor counsel, the Employer continued to abide by the contract after the July 15 election until its expiration on August 1 Thereafter, the Employer took the position (expressed to its supervisors and known by its employ ees) that it no longer was obligated to recognize and bar gain with the Union In practical terms, this meant that monthly shop and safety committee meetings were dis continued, union grievances were not accepted although individual grievances continued to be processed, and copies of douments relating to layoffs, recalls, discipme, job postings and wage rates no longer were furnished to the Union Union requests in early 1983 for information claimed to be relevant to grievance handling were denied for the reason that the information related to pending unfair labor practice issues There is no evidence and no contention of wage or benefit changes subsequent to expiration of the contract In sum, the Employer after defeat of the Union at the polls on July 15 and after expiration of the contract on August 1, did precisely what the Union had since early June, told the employees the law permitted-no further recognition of the Union and no need to continue bar gaining with it See pp 3-4, supra 2 The voluntary layoff program In the fall of 1981 at the inception of a slack season the Employer with acquiescence of the Union, instituted a new program that permitted employees to apply for layoff for certain periods of time (apparently with the right to receive unemployment compensation) When the program was discussed initially the Union sought to have a different period of layoff The Employer rejected the proposal at the time, indicating that it might be adopted later After the contract expired the Employer on August 16 at the inception of another slack business period again instituted a program permitting voluntary layoffs Except for the duration of the voluntary periods of layoff the program was identical with the earlier one There was no bargaining over the change and a union grievance was rejected Under the former program there had never been a grievance as to the manner in which the Employer had implemented the program D Discussion Turning initially to Respondents preelection conduct I find and conclude, for reasons set forth below that the complaint must be dismissed, the objections overruled, and the results of the July 15, 1980 election certified by the Regional Director As to Respondents no cut guarantee, the General Counsel concedes that "Respondent was certainly enti tied to present facts to refute the Union leaflets but it was not entitled as it did, to do so in such a way that it conveyed the message that employees would receive better benefits if they rejected the Union than if they re tamed it The right of a participant to a Board conduct ed election to refute assertions of its opponent has not only a common sense basis but a statutory one in the provisions of Section 8(c) of the Act as well Here the record is clear the guarantee was in direct response to- indeed it was provoked by-an extensive union cam paign designed to create fear in the minds of the employ ees that in the event the Union were voted out there would be absolutely no guarantee against immediate wage and benefit cuts the guarantee did not go beyond the Unions no guarantee threats, and, finally, it was not in any sense a promise of benefits if the employees voted no To conclude otherwise, it should be noted would place in the hands of a union the absolute power to compel election after election until it gained a victory or withdrew from exhaustion, with the simple measure of asserting in its campaign literature the threat that the em ployer would impose severe economic sanctions on its employees in the event of a no union vote According to the General Counsels theory, any affirmative employer response yes we will or no, we will not would con statute an unlawful promise or threat warranting the set ting aside of an election result adverse to the Union The right of an employer to campaign would thus be denied Moreover Respondents explanation (the truth of which is undemed) of its policy at other nonunion plants of not cutting wages and benefits after a union election loss, unaccompanied by an indication that it would refuse to bargain if the Union won or by a threat that bargain ing would produce no more than the employees already had, similarly is not violative of the Act See Galbreath & Co 266 NLRB 96 (1983) and Cafe Tartuffo Inc 261 NLRB 281 (1982) which although neither cited nor dis cussed by the General Counsel distinguish and bring into question the continued validity of Pacific Telephone, 256 NLRB 449 (1981), and American Telecommunications Corp 249 NLRB 1135 (1980), both of which are relied on here by the General Counsel One final observation I believe is appropriate During this 3 day hearing I heard 18 employee and 3 manage ment witnesses give over 600 pages of testimony Yet, I discerned no evidence of union animus in Respondent s preelection conduct no trace of any company effort however subtle to plant the seed of hope of increased wages and benefits if the Union were decertified, and no other plan of threat or promise to influence the vote of its employees What does emanate from that record is the clear feeling that the Company s intent was to do nothing during the election process (i e to mount a no campaign campaign) to influence its employees in their decision to reject or retain their union of some 30 years and that its belated campaign endeavor, provoked by a union campaign, which repeatedly sought to generate fear of wage and benefit loss, was limited to making known to those employees its policies and practices at other plants where other of its employees who elected not to be represented expenenced no such losses Given the statutory nght of both employers and unions to WEATHER SHIELD MFG 9 engage in promise and threat free campaigns it would be difficult, in a real life workplace, to imagine an election freer of employer influence than the July 15 election conducted at this plant 4 Turning next to the postelection refusal to recognize or bargain with the Union the General Counsels con tentions are twofold first, that such conduct violates Section 8(a)(5) and second, that such conduct under mined majority strength and warrants dismissal of the petition and issuance of a bargaining order under NLRB v Gissel Packing Co, 395 U S 575 (1969) Under Board precedent applicable at the time, Telauto graph Corp 199 NLRB 892 (1972), respondent was under no obligation to bargain with the union subsequent * Since Respondents preelection conduct did not interfere with the employees freedom of choice in the July 15 election there is no occasion to consider whether the Union s false representation to employees ( the National Labor Relations Board ruled that because of illegal conduct on part of the Company the election results were being thrown out p 2 fn I supra) constitutes such an interference with the Board s election proc esses as to estop it from claiming employer interference with the conduct of the election or to bar it from seeking relief through those very same processes to the filing of a valid decertification petition, which raises real questions concerning representation Here, there were other factors also 64 checkoff revocations in May and June, information that more than half of the people had signed the petition, and membership of only 23 on the Union s vote yes committee It was not until September 30 that a split Board overruled that deci sion in Dresser Industries 264 NLRB 1088 (1982), more than 4 months after the petition more than 2 months after the election, and 2 months after the contract ex pired By this time, Respondent had announced what the Union had been telling employees since June after expi ration of the contract, it would no longer recognize or bargain with the Union In Dresser, however, the Board did not apply its new bargaining principle retroactively to respondent in that case and common sense dictates that it not be given retroactive application here particu larly in view of the conclusions here that the results of the election should be certified by the Regional Director A fortiorari, Respondents postelection conduct, lawful at the time, will not support a bargaining order under Gissel [Recommended Order omitted from publication ]