Arrow Elastic Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1977

230 N.L.R.B. 110 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arrow Elastic Corporation and International Ladies'
Garment Workers' Union, AFL-CIO. Cases I-
CA-11793 and 1-RC-14379
June 10, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On January 21, 1977, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,1
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Arrow Elastic
Corporation, Springfield, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
on May 6, 1976, in Case l-RC-14379 be, and it
hereby is, set aside and that the case be remanded to
the Regional Director for Region I for the purpose of
conducting a new election in the appropriate unit at
such time as he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Respondent's motion to expand the record to include two union
campaign letters and a letter from Respondent's insurance agent is hereby
denied. The union campaign letters were both clearly part of the Union's
election campaign which ended in May 1976, more than 5 months before the
hearing. The letter from Respondent's insurance agent is dated April 26,
1976, more than 5 months before the hearing date. Thus, there appears to be
no reason why Respondent could not have submitted the three letters at the
hearing (as it had ample opportunity to do) nor is there any showing that the
three letters were somehow unavailable to Respondent at the time of the
hearing.
230 NLRB No. 23
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: Upon an
unfair labor practice charge filed on May 19, 1976, a
complaint was issued on July 6, 1976, alleging that
Respondent violated Section 8(a)() of the Act by an-
nouncing increased wages and other benefits, in order to
discourage union activity. In its duly filed answer,
Respondent denied that any unfair labor practices were
committed.
Pursuant to a representation petition in Case I-RC-
14379 filed on March 22, 1976, and a Stipulation for
Certification Upon Consent Election Agreement approved
on April 9, 1976, an election by secret ballot was conducted
on May 6, 1976, among employees in the appropriate unit.
The results of that election showed that of approximately
95 eligible voters, 34 ballots were cast for, and 61 against,
the Petitioner, I ballot was void, and there were no
challenges. Thereafter, Petitioner filed timely objections to
conduct of the election. On June 22, 1976, the Acting
Regional Director for Region 1 issued a Report on
Objections, in which he noted that, as Petitioner had
withdrawn certain objections, the issue as to the propriety
of the election was limited "to the employer's May 4, 1976,
announcement of benefits and wage increases," and stated
further that the remaining objection raised issues identical
to those involved in Case I-CA-11793. Accordingly, the
Acting Regional Director consolidated Case I-RC-14379
with Case I-CA-11793 for hearing, ruling, and decision by
an Administrative Law Judge.
Pursuant thereto, a consolidated hearing was conducted
before me in Northampton, Massachusetts, on October 21,
1976. After close of the hearing, briefs were filed by the
General Counsel and Respondent.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying, and consider-
ation of the posthearing briefs, I find as follows:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent is a Massachusetts corporation, with a plant
located in Springfield, Massachusetts, from which it is
engaged in the production, sale, and distribution of
clothing and narrow fabric elastic webbing and related
products. In the course and conduct of said operations,
Respondent annually receives at said location goods in
excess of $50,000 and ships from said location goods of
such value to and from points located outside the
Commonwealth of Massachusetts, respectively.
The complaint alleges, the answer admits, and I find
that, at all times material herein, Respondent is and has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that, at all times material herein, International Ladies'
Garment Workers' Union, AFL-CIO, is and has been a
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ARROW ELASTIC CORPORATION
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNLAWFUL CONDUCT
A. The Issue
The sole question presented in this proceeding is whether
an announcement by Respondent's president of prospec-
tive new benefits, made in a speech held 2 days prior to an
election, independently violated Section 8(aXl) of the Act
and interfered with free choice so as to warrant a rerun
election.
B. Background
The Respondent is one of four companies, interrelated
by ownership and control, which are engaged in the
manufacture of various kinds of elastic web and related
products. The employees of these companies are not
represented by any labor organization. The plant involved
here is located in Springfield, Massachusetts, and employs
a work force of between 80 and 100, depending on business
conditions.
In the first part of 1976,1 the Union commenced
organizing employees at the Springfield plant. On March
22, the Union filed an RC petition in Case l-RC-14379.
On April 8, the parties executed a Stipulation for
Certification Upon Consent Election Agreement, setting
May 6 as the date for the election.
The instant controversy relates to the content of speeches
given by Robert Kingsbury, president of Arrow Elastic, on
May 4, 2 days prior to the election. That day Kingsbury, on
working time, addressed separately the employees on the
two shifts. In the course of the speeches, Kingsbury, while
presenting various arguments against employee designation
of the Union, announced three benefits not then enjoyed
by employees, including (I) an amendment to the existing
profit-sharing plan adding a fixed-pension program, (2) an
additional paid holiday, and (3) a 15-cent general increase
effective August 1.
The announcement of the new benefits was made in
advance of their date of implementation, with the benefit
to be realized on the earliest date not to be effective until
August 1, several months after the election. Kingsbury, in
expressing his reasons for apprising employees of these
benefits on May 4, admitted that his purpose in doing was
as follows:
[T]he Union had been making all kinds of propaganda,
all of the kinds of benefits they could give and I wanted
to remind them of the benefits they already had.
* *
I spoke to the people because there was going to be a
union election and I wanted to win it and I wanted to
remind them of all the things they had.2
The benefits announced by Kingsbury on May 4
undeniably were new and represented an upgrading of
All dates refer to 1976, unless otherwise indicated.
2 An inadvertent error appearing in the official transcript is hereby
corrected by, p. 24, I. 12, deleting "1975," and substituting therefore "1976."
employment conditions in several areas at the Springfield
plant. And considering the antiunion nature of the
speeches and Kingsbury's admission, there is little room for
an argument on Respondent's behalf that the announce-
ment was not calculated to influence employees to vote
"No." On the other hand, the claim that Kingsbury's
action was lawful is aided by stipulations made by the
parties that Respondent had a historic policy of granting
annual wage increases in August, and further that the
decision to integrate a pension program with the existing
profit-sharing program, as well as the granting of a ninth
paid holiday, was made in advance and without the
knowledge of union activity.
C. The Positions of the Parties
The General Counsel, placing heavy reliance on
N.LR.B. v. Exchange Parts Conrpany, 375 U.S. 405 (1964),
argues that the violation is established simply by the
announcement of the new benefits in the context of an
antiunion diatribe. The General Counsel asserts that the
fact that these changes in employment terms were decided
on prior to the advent of the Union is immaterial, since
announced with the intention of influencing the outcome
of a scheduled election. As I understand the General
Counsel's position, it is claimed that the Act bars an
employer from utilizing new benefits as part of its
affirmative preelection campaign under any and all
circumstances. Respondent, on the other hand, claims that
employees were informed and mindful of the benefits
before any union activity, and, furthermore, in the
circumstances presented, the employer was privileged to
remind or notify employees of the benefits in question
since "clearly relevant to their decision on whether they
wish to be represented by a labor organization." 3
D. Concluding Findings
1. Preliminary statement
Under established Board policy, absent a showing by an
employer that the timing of an announcement of new
benefits during the period preceding an election was
justified by considerations other than the pendency of the
election, such an announcement is deemed unlawful as
calculated to influence the employees in their choice of a
bargaining representative. Thus, the burden of disassociat-
ing the announcement from the preelection campaign is
upon the employer.4 This allocation of proof responsibility
is repeatedly alluded to in Board precedent and tends to
support the General Counsel. It lacks qualification and,
literally construed, precludes, in any and all circumstances,
an employer from combating union promises of economic
progress through collective bargaining, by an announce-
ment of predetermined upward revisions in the benefit
structure.
Furthermore, the General Counsel seemingly derives
support from such decisions as Hinelines Meat Plant, Inc.,
193 NLRB 867 (1971), Diamond Motors, Inc., 212 NLRB
3 See, e.g.. Domino of Caliornia, 205 NLRB 1083 (1973).
' See, e.g.. Essex International, 216 NLRB 575. 576 (1974).
111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
820 (1974), and Fox Valley Truck Service, Inc., 153 NLRB
727, 737 (1965). In those decisions, the Board found that
the announcement of new benefits during the preelection
period violated Section 8(a)(1), even though decided on or
considered in advance of the union organization campaign.
Despite the foregoing, through certain subsequent
decisions such as Big G Supermarket, Inc., d/b/a Town and
Country Family Center, 219 NLRB 1098 (1975), and
Domino of California, Inc., supra, the Board has acknowl-
edged the existence of circumstances in which predeter-
mined increases may be announced during the critical
preelection period and in the context of an active campaign
conducted by an employer to persuade employees to reject
union representation.
As should be apparent from the foregoing, viable Board
precedent does not appear to interdict the preelection
announcement of benefits to the degree argued for by the
General Counsel, nor do the controlling authorities brand
such announcements as legitimate to the degree claimed by
Respondent. From a distillation of the decisions evidencing
present Board policy in this area, it appears that preelec-
tion announcements of upward revisions in employment
terms are presumptively unlawful, even if based on
determinations made prior to the advent of union activity.
However, said presumption is rebuttable. Thus, an employ-
er is free to include such references in antiunion propagan-
da if he can demonstrate either (1) that such announce-
ments were limited to terms already integrated into the
existing benefit structure,5 or (2) at a minimum that the
original determination to grant the prospective benefit was
followed up and implemented by a sequential chain of
events during the period before any union activity so as
reasonably to dispel notions that the ultimate implementa-
tion was accelerated because of the union activity,6 or that
employee organization prompted a revitalization of a since-
abandoned determination to grant such benefits. 7 Thus, in
order for Respondent to prevail in this proceeding, the
facts must demonstrate that the entirety of the benefit
package announced on May 4 was privileged under either
of the standards set forth above. Therefore, the legitimacy
of such conduct entails a separate analysis of each of the
benefits communicated to employees on that date, as set
forth below.
2. The benefits
a. The wage increase
Commencing in 1974, Respondent established a policy of
granting annual wage increases on or about August 1.
Thus, in August 1974, a 10-cent hourly increase was
conferred on employees, s and an identical 10-cent increase
was received by the employees in August 1975.
With respect to the means and timing of employee
notification concerning the August increases, it appears
that in 1974 a formal notice was posted in the plant on
I See, e.g., Schwab Foods, Inc., Scotts IGA Foodliner, 223 NLRB 394 fn. I
(1976).
6 See, e.g., Mr. Fine, Inc., 212 NLRB 399, 402.
7 Cf. D'Youville Manor Nursing Home, 217 NLRB 173, fn. 2 (1975).
8 The August 1974 general increase was the second granted employees in
that year. The first, also a 10-cent increase, was granted earlier in May 1974.
9 Kingsbury testified that in his speech to the first shift, he referred to the
May 10, 1974, announcing the increase effective August 1,
1974. In addition, on July 31, 1975, a notice was posted
announcing the increase effective on August 4, 1975.
On May 4, 1976, Kingsbury advised the employees that
"as is company policy and as happened in 1974 and 1975,
on August 1, we will have a general wage increase of 15
cents."9 After the election, a notice was posted, dated July
22, 1976, which formally announced the 15-cent increase
effective August 1.
It is fair to assume that most employees in the unit were
mindful, prior to May 4, of Respondent's historic practice
of granting general increases on or about August 1. Thus, it
was stipulated that of the 95 employees eligible to
participate in the 1976 election, 82 were on active payroll
status and received the increase implemented on August 4,
1975, and 65 were on active payroll status and received the
increase granted on August 1, 1974. They were not,
however, aware of the amount of the 1976 increase until
informed by Kingsbury on May 4.
Kingsbury testified that the size of general increases was
based on business conditions and the rate of inflation. It is
the sense of his testimony that the 1976 determination of 15
cents was made upon receipt from accountants of financial
data in March.10 He asserts that the decision to give the
additional 5 cents was predicated on the Company's
improved financial condition and a higher inflation rate.
There can be no question that Kingsbury, in his May 4
speeches, alluded to the new 15-cent increase, in the effort
to persuade employees against designation of the Union. It
is noted in this connection, however, that Kingsbury
testified credibly and without contradiction that the Union
through its propaganda machinery was promising a variety
of benefits which it could achieve on behalf of the
employees if designated. I find, in accordance with his
testimony, that to refute this propaganda, Kingsbury
announced the predetermined benefits. In the circumstanc-
es, he was privileged to allude to the 15-cent increase in his
speeches of May 4.
Thus, Respondent had a policy of granting increases on
August I in prior years. Most of the eligible voters would
have been aware of this practice, and in my judgment
would have expected this increase in August 1976.
Although the size of the increase was greater than
conferred in August 1974 or 1975, I do not regard the 5-
cent deviation as fatal. It is noted that in 1974, Respon-
dent's employees received general increases totaling 20
cents. An additional 5 cents, over that conferred in 1975,
was granted, according to the credited testimony of
Kingsbury, to reflect improved business conditions and to
offset the impact on employees of intensified inflation. I
find that the 5-cent increment was neither excessively
beyond the normal pattern of general increases, nor arrived
at in consequence of any organizational activity. 1
It is true that, although the increases were not to be
effective until August 1, the Employer opted to make its
August I increase in response to an inquiry from an employee. Kingsbury
indicates that, if not asked, he would have announced the wage increase
anyway, and, indeed, during the speech on the second shift, Kingsbury
admittedly raised the issue himself.
'o The record does not permit a finding that the Union was engaged in
organizational activity at the time of this determination.
I See Essex International, supra.
112
ARROW ELASTIC CORPORATION
announcement several months earlier during the critical
preelection period. However, in 1974, employees were also
notified of the August increase in May, and, although not
announced until July the following year, neither this factor,
nor the possibility that Respondent could have delayed
until after the election in announcing the increase, in the
circumstances operated to preclude Respondent of availing
itself of the intended increase as part of its campaign
propaganda. 12 As heretofore indicated, recent Board
precedent confirms that employers are free to campaign
against union representation by reminding employees of
existing benefits.' 3 That this was the case here should be
evident from other aspects of Board policy which bear
upon the question. It is a fact that under the Employer's
past practice, the anniversary date for the general increases
was in August, several months after the election. But, if, at
that time, a question concerning representation were
pending, by virtue of the past practice, Respondent would
have been obligated to grant the increase in accordance
with the familiar principle that "an employer, in deciding
whether to grant benefits while a representation election is
pending should decide that question as it would if a union
were not in the picture." 14 Thus, by operation of law,
Respondent, in such a case, would have been obligated to
grant the increase at that time. The very policy which
deems the Employer's past practice to be a fixed employ-
ment condition, cannot logically be withheld so as to
"deprive the Respondent of legitimate campaign strategy
necessary to counter the Union's claim that it offers better
benefits." Schwab Foods, supra, fn. I.
Accordingly, I find that Respondent's May 4 announce-
ment of the 15-cent increase was merely a reminder made
within the framework of Respondent's existing benefit
program, and, as such, neither violated Section 8(a)(XI) nor
interfered with the election.
b. The pension plan amendment
By way of background, it appears that, for several years
prior to 1976, the Employer maintained and financed a
profit-sharing plan whereby contributions were invested on
behalf of employees in tax-exempt mutual funds. As a
result of the downturn in the economy in 1974, the value of
employee holdings under the plan declined. In 1975, the
Company decided to amend the profit-sharing plan to
include pension benefits so the employees would have a
fixed income on their retirement. This "decision," however,
was not reduced to a binding, legal commitment until well
after the election.
Documentary evidence reveals that Respondent, at least
as of January 1976, well prior to any union activity, had
retained Sapers & Wallack, an employee benefit consulting
firm, for the purpose of arranging a suitable pension
program with a carrier. Kasimierz Moszynski, the assistant
plant manager, testified that following a January manage-
ment meeting with Kingsbury, pursuant to instructions
'2 Cf. Diamond Motors, Inc., 212 NLRB 820 (1974), where there was no
evidence that, in prior years, the benefit involved was announced at a time
corresponding to that selected by the employer dunng the preelection
campaign.
from Kingsbury, he informed 12 or more employees as
follows:
. . . on the profit-sharing plan, that its going into
effect. It's being worked upon, that they were going to
have it.
A plan which would suit Respondent's needs was put out
for bid to various carriers in 1976. It does not appear that
details as to the structure and benefits thereof were
communciated to employees prior to the plan's implemen-
tation. Ultimately, Respondent executed an agreement
with New England Life Insurance Company to administer
and finance the new retirement plan. However, Respon-
dent made no binding commitment to provide such
benefits until an agreement with the carrier was executed at
a directors meeting on September 10, 1976. No explanation
is offered as to what transpired in connection with the
effort to secure a plan, during the period between January
1976 and September 10, 1976. This, despite Kingsbury's
testimony that the pension program under consideration in
January 1976 was identical to that adopted in September
1976.
Board precedent with respect to preelection announce-
ments of third-party administered employee benefit pro-
grams is not susceptible to simplified application. The
search for a common thread running through these
decisions leads to the view that where such benefit
programs are announced to persuade employees to vote
against union representation, the onus is on that employer,
as heretofore indicated, to show that the grant of such
benefits was neither revived nor accelerated by union
activity. It is not enough that the employer had previously
decided on the grant of such benefits, if in fact it had not
become lawfully committed to provide such benefits prior
to the union campaign. It remains the further burden of the
employer to show that its announcement was reasonably
timed as a sequential step in, and a byproduct of, a
chronology of conception, refinement, preparation, and
adoption, so as to lead one reasonably to conclude that the
announcement would have been forthcoming at the time
made even if there were no union campaign.' 5 Any other
result would give employers a considerable advantage,
possibly allowing discretionary action to alter the balance
which must be maintained if employees are to exercise an
uncoerced choice. An initial decision to effect a benefit
program which must be administered and funded through
third parties necessarily rests on a number of impondera-
bles. Although at the time of that decision, the employer
would be aware of the cash it is willing to allocate to such a
program, whether such an expenditure will purchase, on a
sustained basis, a program sufficient to finance the
retirement benefits desired is an unknown. Extensive
exploration is required before commitment and unforeseen
factors could arise from that process, which might well
produce a reconsideration of the initial decision, culminat-
ing in deferral or abandonment of the original plan. The
13 See, e.g., Schwab Foods, supra, and Big G Supermarkets, supra.
14 Essex International, supra at 576.
15 See, e.g., Mr. Fine, Inc., 212 NLRB 399, 402.
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof presented in such cases as Domino of California,
supra, and Mr. Fine, supra,'6 sufficed to assure that the
preelection announcement was not a byproduct of employ-
er manipulation born of a design to influence the outcome
of the election. No similar proof was presented here. To the
contrary, in the instant case, substantial concern arises
from the unexplained delay between the original determi-
nation and the Employer's final commitment to extend
such benefits.
Only the employer is in a position to explain delays in the
implementation of such benefits and the type of proof
presented in such cases as Domino of California, supra, Mr.
Fine, supra, imposes no unreasonable burden on the
employer, if in fact the ultimate grant of such benefits and
the timing thereof were not influenced by the organization
campaign. Here, the decision to establish such a program
was made in 1975, and not implemented until several
months after the election by action of Respondent's board
of directors on September 10, 1976. No explanation
whatever is offered for the lapse of time, nor does the
record disclose what transpired in the period between
Respondent's definition of the program and its commit-
ment, of a binding nature, to that very same program.
Quite clearly, the decision made by Respondent to grant
the benefit was unilateral and revocable until September
10, 1976.'7 As far as this record shows, it was not until that
date that employee enjoyment of this benefit was no longer
speculative.
In the circumstances, Respondent has not furnished
evidence justifying its reference to a prospective increase in
pension benefits as part of its preelection propaganda, and,
absent such proof, I find that Respondent unlawfully
interfered with the election and violated Section 8(a)(1) of
the Act.' 8
c. The additional holiday
The General Counsel and Charging Party concede that
in January 1976 the Employer decided to grant a ninth
paid holiday without knowledge of union activity. Thus, at
a meeting with the supervisory staff at the Springfield plant
in January 1976, Kingsbury announced that an additional
holiday would be added at the plant because that facility
was behind others in connection with paid holidays.
Kingsbury asked Kasimierz Moszynski to talk to employ-
ees and report back to him which holiday they wanted.
Moszynski thereafter spoke to 12 or more employees
relaying, among other things, that they would get an
additional holiday of their collective choice. Moszynski
claims that he was informed that a majority of the
employees wanted the new holiday to be on George
1s Also noteworthy is the fact that the cited cases involve pension plans
actually implemented at the time announced, and, thus, the legitimacy of
the conduct in question there was not beclouded, as here, by notification to
employees during the critical preelection period of a benefit which the
Employer did not become obligated to provide until 4 months later.
it Resp. Exh. I is a letter dated January 12, 1976, from Sapers & Wallack
concerning the pension amendment. That letter sets forth the benefit
program in detail, indicates that the annual cost of the program would be
approximately $1 i1,000, and urges a prompt response from Respondent. The
sole evidence of a response by Respondent to this proposal is the September
1976 action of the board of directors. This, despite Kingsbury's testimony
that the plan finally adopted was identical to that defined in Resp. Exh. 1.
18 In so finding, I have not overlooked the testimony that the pension
Washington's Birthday, and that he reported this to
Kingsbury.
A new paid holiday, although not to be effective until
1977, was formally announced by Kingsbury during the
speeches of May 4. Although not free from doubt, I am
willing to accept the uncontradicted testimony of Kings-
bury, Moszynski, and rank-and-file employee Walter
Koloszyc that certain employees were informed and
canvassed concerning the new additional holiday benefit in
January 1976.19
Unlike the pension amendment, an initial decision to
grant an additional holiday rests upon cost variables
susceptible to predetermination. Once an employer has
been moved to communicate a promise of such a benefit to
employees, a renege is unlikely and such notification
carries an inherent assurance that the benefit will be
bestowed. With this distinction in mind, I am persuaded
that the evidence adduced by Respondent suffices to
establish that, prior to the advent of the Union, the
additional paid holiday had become a condition of work at
the Springfield plant. As indicated, by way of stipulation,
the parties agreed that the Employer decided to grant a
ninth paid holiday prior to the advent of the Union.
Credible evidence establishes that the decision in this
respect was made known to employees in January, with the
only detail left open being the particular day on which
employees elected to take the new holiday. The determina-
tion and communication to employees of this new benefit,
in my opinion, was made under circumstances which
reduced the ninth paid holiday to a term of employment
prior to the May 4 speeches and before any organizational
activity occurred.
The Board has upheld an employer's right, during a
preelection campaign, to legitimately propagandize on the
basis of existing benefits, even though certain employees
were unaware of such benefits. Thus, in Schwab Foods,
supra, the Board stated at fn 1:
I Contrary to the Administrative Law Judge, we do not find the
Respondent's announcement of the availability of certain existing
insurance benefits to be violative of Sec. 8(aXI). Prohibiting the
Respondent from publicizing existing benefits-an issue raised by the
Union itself-merely because the employees had not previously been
made aware of such benefits, would deprive the Respondent of
legitimate campaign strategy necessary to counter the Union's claim
that it offers better benefits.20
Here, as in Schwab Foods, supra, and Big G Supermarket,
supra, "it cannot reasonably be held that Respondent was
required to conceal innocent facts from the employees
simply because the facts might lessen their ardor for
unionization." Accordingly, I find that Respondent did not
program was implemented at the same time at all three plants in which
Kingsbury had an interest. However, this consideration is neutralized by
Kingsbury's admission that during the first 6 months of 1976 some form of
union activity took place at each of said locations.
19 I do not regard testimony adduced by the General Counsel's witness
Carl Dupres, a former employee of Respondent, as creating a material
conflict in testimony with respect to this issue. The testimony of
Respondent's witnesses in this regard is not that all employees were
informed, and it is entirely possible under their accounts that certain
employees, including Dupres, did not learn of the new holiday until the May
4 speeches.
20 See also Schwab Foods, supra at 407.
114
ARROW ELASTIC CORPORATION
engage in conduct interfering with the election or violate
Section 8(a)(l) by Kingsbury's apprising employees of the
new holiday benefit in his May 4 speeches.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent independently violated Section 8(aX)(
of the Act, and engaged in conduct interfering with the
conduct of an election, by during the critical preelection
period announcing a new pension program, under circum-
stances calculated to influence employees to reject union
representation in a Board-conducted election.
4. The aforesaid unfair labor practice constitutes an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act. I
shall further recommend that the election held in Case 1-
RC-14379 on May 6, 1976, be set aside and that rerun
election be conducted at an appropriate time.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 21
The Respondent, Arrow Elastic Corporation, Spring-
field, Massachusetts, its officers, agents, successors, and
assigns, shall:
i. Cease and desist from:
(a) Announcing new benefits to employees under
conditions calculated to influence employees in the
exercise of their right to choose freely whether or not they
wish to be represented by a labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Post at its Springfield, Massachusetts, plant copies of
the attached notice marked "Appendix."
2 2 Copies of the
notice on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case I-RC-14379 be
severed and remanded to the Regional Director for Region
1, that the election conducted on May 6, 1976, be set aside,
and that said Regional Director conduct a rerun election at
such time that he deems the circumstances permit a free
choice on the issue of representation.
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
22 In the event this Order is enforced by a Judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented and
afforded the opportunity to present evidence, it has been
found that we have violated the National Labor Relations
Act in certain respects and we have been ordered to post
this notice and to carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT announce new benefits under circum-
stances calculated to influence our employees in their
choice of whether or not they wish to be represented by
International Ladies' Garment Workers' Union, AFL-
CIO.
ARROW ELASTIC
CORPORATION
115