Chrysler Airtemp South Carolina, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1976

224 N.L.R.B. 427 (N.L.R.B. 1976)

CHRYSLER AIRTEMP SOUTH CAROLINA
Chrysler Airtemp South Carolina, Inc. and Sheet Met-
al Workers International Association, AFL-CIO,
Local Union No. 399. Case 11-CA-6004
June 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On December 17, 1975, Administrative Law Judge
Stanley N Ohlbaum issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge s resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
In adopting the Administrative Law Judge's finding that the evidence has
not established that Supervisor Dalzell stated to employee McDonald I
was thinking about putting you on my staff until after the way you voted
yesterday," we consider it unnecessary to pass upon the Administrative Law
Judge's alternate finding that even if the remark had been made no viola
Lion would have occurred
DECISION
PRELIMINARY STATEMENT, ISSUES
STANLEY N OHLBAUM Administrative Law Judge This
proceeding under the National Labor Relations Act, as
amended (29 US C Sec 151, et seq, herein the Act),
based upon complaint of the Board's Regional Director for
427
Region 11 (Winston-Salem, North Carolina), dated April
9, growing out of a charge filed by the Charging Party
Union on January 31 and amended March 6, was heard in
the Winnsboro, South Carolina, County Courthouse on
June 20 and 30 and July 1, 1975, with all parties participat-
ing throughout by counsel or other representative, who
were afforded full opportunity to present evidence and ar-
guments Briefs were received from General Counsel and
Respondent on September 22, 1975, time for filing thereof
having been extended upon unopposed application of
counsel
The principal issues presented are whether Respondent
Employer has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act through interrogation of em-
ployees concerning their union affairs, activities, and sym-
pathies, through creating the impression that employees'
union activities were under Respondent's surveillance, and
through various statements, written as well as oral, said to
have constituted economic threats, including threats of
plant closure, in the event of unionization
Record and briefs having been carefully considered,
upon the entire record and my observation of the testimo-
nial demeanor of the witnesses, I now make the following
FINDINGS AND CONCLUSIONS
I JURISDICTION
At all material times, Respondent Chrysler Airtemp
South Carolina, Inc, a subsidiary of Chrysler Corporation,
has been and is a Delaware corporation with a plant in
Winnsboro, South Carolina, for manufacture of air-condi-
tioning and heating units During the representative year
immediately preceding issuance of the complaint, Respon-
dent received at that plant, directly in interstate commerce
from places outside of South Carolina, goods and materials
valued in excess of $50,000, during the same period, Re-
spondent at that plant also manufactured and sold and
thence shipped, directly in interstate commerce to places
outside of South Carolina, products valued in excess of
$50,000
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that at all of
those times the Charging Party Union has been and is a
labor organization within the meaning of Section 2(5) of
the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background'
Respondent, a fully owned subsidiary of Chrysler Cor-
poration, manufactures air-conditioners, heating units, and
accessory parts, exclusively for marketing by Chrysler Air-
temp Division It is one of three such plants in the United
States supplying Chrysler Airtemp Division, the others
i Established in part through uncontroverted credited testimony of
Respondent's vice president and general or plant manager Richard L
Voorhees, and its personnel manager, Joseph Frank Vella
224 NLRB No 65
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being located in Dayton, Ohio, and Bowling Green, Ken-
tucky Respondent's only plant, in Winnsboro, South Car-
olina, was opened for production in December 1972 In
1973 unsuccessful organizational campaigns were wit-
nessed by Respondent's production and maintenance em-
ployees These campaigns were conducted by United Au-
tomobile Workers (UAW, March-April) and by Sheet
Metal Workers Local 399 (Charging Party here, July-Au-
gust) In a November (1973) election, out of approximately
285 eligibles, 99 voted for Local 399, 23 for UAW, and
around 125 for no union No objections to the election or
unfair labor practice charges were filed However, organi-
zational attempts by these unions continued thereafter
The year 1974 is pictured as almost economically disas-
trous for Respondent and its affiliates, with a $20 million
loss for Chrysler Airtemp Division (atop a similar $20 mil-
lion 1973 loss) and a $73-1/2 million loss for Chrysler Cor-
poration in the fourth quarter alone In that year (1974),
Chrysler Airtemp Division closed over 40 percent of its
sales branches, and in November closed its Canadian man-
ufacturing facility During the same year, Chrysler Corpo-
ration reduced its Dayton, Ohio, force over 20 percent and
its total force by about 100,000 employees Commencing in
June 1974 and continuing to at least the time of the hearing
of the instant proceeding in mid-1975, Respondent has re-
ceived steadily declining production requests from Chrys-
ler Airtemp Division (Respondent's sole "customer"), as-
cribed to severe declines in the building construction
industry (which absorbs Respondent's products) as well as
to the generally depressed condition of the air-conditioning
industry Consequently, Respondent was constrained to re-
duce its workshifts from three to one, to cut down its as-
sembly lines, and to close down its plant intermittently
from July 1974 on for varying lengths of time, with reduc-
tions in force in its managerial and supervisory as well as
production and maintenance personnel From March 1974
to July 1, 1975, Respondent's total work force has shri-
velled from 386 to around 190
It is within the foregoing unquestioned frame of refer-
ence that events here in question must be assayed
In October 1974, Sheet Metal Workers Local 399
(Charging Party here) again petitioned the Board for a rep-
resentation election in a unit of at least 180 and perhaps as
many as 208 of Respondent's production and maintenance
employees UAW intervened In the ensuing election, held
on December 12, 1974, again neither union obtained a ma-
jority On January 23, 1975, a "run-off" election took
place, with only the Charging Party on the ballot, but it
still failed to gain a majority, the voting employees prefer-
ring "no union " No objections were filed to the conduct of
that election
We move now to the oral and written utterances of
Respondent's supervisory personnel, culled from a sub-
stantial mass of communications beamed by both or all
sides at the employees, here complained of as comprising
unfair labor practices in violation of rights of employees
under the Act
2
According to Baughman, when he was again recalled to work around
February 1975, he did not elect to return
B Alleged Utterances Claimed To Have Been Violative of
Section 8(a)(1)
1 Alleged oral threats of plant closing
The complaint alleges that, in violation of Section 8(a)(1)
of the Act, in mid-October 1974 Respondent's General
Foreman Grady Hubbs "threatened its employees that if
the Union did come in that the plant would close" and that
toward the end of October its Supervisor Kenneth Seagars
uttered the same threat
a Baughman vs Hubbs
Respondent's former machinist apprentice Henry L
Baughman, employed by it for about a year and a half
until laid off in November 1974 (with an intervening brief
layoff earlier in the fall of 1974)2 and an openly ardent
plant promoter of the Charging Party Union, was called by
General Counsel as a witness Baughman testified that in a
slack moment during work around mid-October 1974 he
approached General Foreman Grady Hubbs at the latter's
desk in an open area on the coil and blower line and, hand-
ing him a news clipping about a plant closing elsewhere in
the State, invited Hubbs' comments in what Baughman
characterizes as "more of a mutual exchange, you might
say, back and forth, our own opinions " Thereupon, ac-
cording to Baughman, Hubbs opined that that is what
would happen if Respondent's plant became unionized
Baughman told Hubbs that "I [am] in favor of the Union
and didn't care who knew it", Hubbs indicated he was
not in favor of the Union Subsequently in his testimony
Baughman added that Hubbs also remarked that "If the
damn tuggers got in or the Union got in with them, the
plant would definitely close " On cross-examination,
Baughman conceded that it was he (Baughman) who
opened up and provoked the foregoing conversation,
which, according to Baughman, was in the context of an
amicable exchange of viewpoints at Baughman's seeking
and solicitation, and, further, that Hubbs told Baughman,
or Baughman understood from what Hubbs told him, that
Hubbs was merely voicing his own personal "opinion "
Concerning the foregoing, Respondent's Production
General Foreman Grady Hubbs, testifying as Re-
spondent's witness, swore that when Baughman ap-
proached him at his (Hubbs') desk on the occasion in ques-
tion and, calling Hubbs by first name, handed him a news
clipping "concerning a plant closing due to labor prob-
lems," and solicited his opinion, Hubbs remarked only that
"it [is] a shame that a company had to close because of a
union " Hubbs absolutely denies remarking that the
Winnsboro plant would also close if a union came in,3 and
3 Hubbs insisted he was aware at this time that it was unlawful for an
employer to threaten plant closure in the event of unionization Early in
November 1974 Respondent had issued a carefully detailed 10-page
Guidelines for Management Employees during Union Organizing Cam-
paign," in which, among other things, it instructed supervisors that You MAY
NOT tell employees that the plant will be closed if employees
choose either union " (Resp Exh 7 p 9 )
CHRYSLER AIRTEMP SOUTH CAROLINA
he further insistently denies that he ever made any state-
ment to Baughman about "tuggers" or black persons com-
ing in to the plant, such as ascribed to him by Baughman 4
b Baughman vs Seagars
Former employee Baughman further testified that dur-
ing the last week of October 1974,5 on the factory coil and
blower line, with fellow employee MacArthur Camack 6-8
feet away and not known to be within earshot, Baughman
was "discussing the Union" with Coil and Blower Line
Foreman Kenneth Seagars According to Baughman, he
said to Seagars, "I am definitely for the [Sheet Metal
Workers] Union and I didn't care who knew it " Seagars
said he was definitely against it and would have nothing to
do with it or "to say to favor it in any way " Baugh-
man later supplemented his testimony by adding that Sea-
gars also remarked that if the Union came in the plant
would close On cross-examination, Baughman acknowl-
edged that his open support for Sheet Metal Workers was
well known in the plant and that, indeed, he had made
Seagars aware of those sentiments, that he had exchanged
views with Seagars on a number of occasions concerning
the Union, and that each time it was Baughman who brought
the subject up and expressed his views to Seagars, following
which Seagars, concededly in a context of exchanging or trad-
ing viewpoints, gave Baughman his own personal "opinion "
Testifying regarding the foregoing, Respondent's former
assembly line foreman, Kenneth Seagars, who because of a
production cutback since November 1974 has become a
rank-and-file employee, acknowledged that Baughman
(who worked on the same assembly line with Seagars) had
discussed the subject of union with him many times, with
Baughman invariably being the one who brought the sub-
ject up Each time Baughman made it plain that he was
promoting and would vote for the Union, Seagars made it
4 General Counsel called Tommy R Wilson as a rebuttal witness to con-
tradict Hubbs ' testimony that Hubbs customarily refers to black persons by
their color and does not use or does not recall using the epithet `nigger'
But Wilson's testimony that he heard Hubbs use that expression on one
occasion-not involving Baughman (who is white)-in the presence of em-
ployee Dickey, is not only somewhat wide of the issues presented here, but
does not in material aspect overcome Hubbs' testimony that he was unable
to recall using that expression Tommy Wilson , a conceded union activist
and member of its in-plant organizing committee , testified that he had alert-
ed company supervisors that they had better "watch [your] mouth' when
talking to him (Wilson) since he could be expected to report and make a
statement" regarding it, and that he is certain that Hubbs was "well aware
of that" Under the circumstances , Wilson was unable to suggest why,
knowing this , Hubbs would make the "niggers statement now ascribed to
him by Wilson , a known vociferous union activist Moreover, employee
Dickey , in whose presence-according to Wilson-the statement was alleg-
edly made by Hubbs, was without explanation nor was he produced by
General Counsel to corroborate Wilson or to assist in resolving this periph-
eral `issue " Finally , Hubbs, called by Respondent on surrebuttal, flatly
contradicted Tommy Wilson Although resolution of this alleged testimo-
nial conflict between Wilson and Hubbs is unessential since it iJ ancillary
even if Wilson were to be credited-and I am unprepared to do so, under
the circumstances shown-it would not affect my determination as to
Hubbs' testimony concerning the specific subject matter here in issue, i e,
the statements ascribed to Hubbs by Baughman (Were it necessary to re-
solve the described conflict between Wilson and Hubbs, upon the record as
a whole, including demeanor observations , I would credit Hubbs )
5 Baughman also testified that-contrary to the complaint allegation-
this occurred in November
429
dust as plain that he personally was opposed to the Union
These exchanges of views were friendly 6 Seagars flatly de-
nies that he ever told Baughman that the plant would close
if the Union came in
c Discussion and resolution
There are thus presented , in this aspect of the case, es-
sentially clearcut issues of testimonial credibility between
Baughman and Hubbs , as well as between Baughman and
Seagars, each to a degree an interested witness
No material inconsistency was developed by cross-exam-
ination of either Hubbs or Seagars On the other hand,
cross-examination of Baughman developed a number of
inconsistencies Thus, although Baughman had sworn on
cross-examination that his described conversation with
Hubbs was in a "normal" tone of voice whereas that with
Seagars was "heated," when he was shown his prehearing
"Jencks" affidavit, Baughman swore both conversations
were "heated" (which I find difficult to believe under the
described circumstances), although even in his prehearing
affidavit he had referred only to the Hubbs conversation as
"rather heated " And, although Baughman swore here (as
shown above) that during his described conversation with
Seagars, fellow employee MacArthur Camack was not a
participant therein , by contrast he had sworn in his pre-
hearing affidavit (Resp Exh 3, pp 6-7) that there were
two separate conversations with Seagars, in only one of
which MacArthur Camack apparently figured, and that in
the latter MacArthur Camack was not only there but actu-
ally "talking to Seagars " (To be sure, Baughman attempt-
ed to resolve this inconsistency by explaining at the hearing
that Camack had been talking to Seagars as Baughman
approached, this, however, does not eliminate Baughman's
inconsistent testimony that Camack was not part of the
single conversation he described at the hearing, nor possi-
bly even within earshot) It is noted that, without explana-
tion, Camack was not produced at the hearing to corrobo-
rate Baughman or to assist in resolving any contradiction
between the testimony of Seagars and that of Baughman,
particularly in regard to the alleged statement-flatly de-
nied by Seagars-concerning plant closure Further, al-
though in his testimony here Baughman cast the disputed
Hubbs statement concerning "niggers" in terms of the Em-
ployer closing the plant in case of unionization , in his pre-
hearing affidavit the thrust of the disputed statement seems
somewhat different "[the] damn niggers will have the
plant closed " Without desire to defend an expression of
this type , it is nonetheless the fact that-assuming it to
have been made-it is consistent with prediction of a strike
by employees rather than shutdown by the employer Cf
Glazers Wholesale Drug Co, Inc, 209 NLRB 1152 (1975)
In the overall posture of the record as a whole, including
testimonial demeanor comparisons, I am unable in good
conscience to find that the weight of the testimony of
Baughman preponderates over that of Hubbs or Seagars,
indeed, I find to the contrary, that it does not and that it is
6 While "friendly" statements are not for that reason alone invulnerable
to objectionability under the Act, neither does the "friendliness," or for that
matter the "unfriendliness," of statements render them objectionable or un-
lawful Thus, this factor is not determinative
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outweighed by that of Hubbs and Seagars, whom I ob-
served to be impressive witnesses whose testimony deserves
credit
It is accordingly found that the allegations of paragraph
8(a) of the complaint have not been established by a pre-
ponderance of substantial credible evidence
2 Alleged interrogation
The complaint further alleges that on December 10,
1974, Respondent's supervisor, Bill Day, interrogated "em-
ployees concerning their union activities, sympathies and
desires," in violation of Section 8(a)(1)
Concerning this, Respondent's metal finisher and spray
painter Bruce McDonald testified that on the morning of
December 10 while he was at the iesk of Supervisor Day,
about 20-40 feet from McDonald's workplace, Day asked
him "out of the blue" whether McDonald was going to
vote "for the Union" in the upcoming election 7 According
to McDonald, he responded that he did not know and that
Day was "not supposed to be asking me that " Continuing,
McDonald added that shortly thereafter, while he was
walking past Day's desk, the latter this time remarked to
him, "I thought you weren't going to vote for a Union,"
and that McDonald thereupon denied he had told Day
how he would vote McDonald concedes he was in no way
threatened by Day or told how to vote
Respondent's paint-line production foreman, Billy J
Day, disputes the foregoing episode as narrated by Bruce
McDonald Day had been oriented by his superiors as to
proper and improper preelection conduct and speech, and
had received a copy of Respondent's written "Guidelines"
(supra, fn 3) on this subject According to Day's testimony,
on the occasion in question employee Edmunds 8 ap-
proached him and asked him his opinion regarding a
union After Day commented adversely, thereupon Bruce
McDonald, who was standing nearby, interjected that Day
"could not make a statement to that effect that close to the
election " Day expressed disagreement Day flatly denies
any other conversation with McDonald concerning a
union, including asking him how he was going to vote
In this head-on testimonial clash between Bruce Mc-
Donald and Billy Day, after closely observing the testimo-
nial demeanor of each, I would have no rational basis for
preferring that of McDonald over that of Day, on the con-
trary, my demeanor comparisons would preponderate in
favor of Day General Counsel has accordingly, in the
most generous view, failed to sustain the burden of proof
and persuasion which is his
It is additionally noted that, in the circumstantial con-
geries presented, it impresses me as quite unlikely that a
supervisor of the observed caliber of Day would engage
"out of the blue," as McDonald claims, in pointedly crude
interrogation of the nature described by McDonald It is
further observed that, within the context of a lengthy and
7 It will be recalled that two unions were competing in the upcoming
election 2 days later
8 Since Edmunds did not testify and Bruce McDonald did not dispute this
(merely testifying that he could not recall' it) Day s testimony concerning
Edmunds is uncontroverted
spirited preelection campaign, involving at least 7 supervi-
sors and at least 180 and perhaps as many as 208 unit
employees , this is the only alleged incident of interroga-
tion Under these circumstances , even were McDonald's
version of the disputed episode to be credited , in light of
the findings herein that no violations were committed, I
would regard the incident as de minimis and not such as to
justify issuance of a remedial order against an employer
not shown to be a recidivist Cf , e g, N L R B v Huntsville
Manufacturing Company, 514 F 2d 723 (C A 5, 1975)
3 Alleged creation of impression of surveillance
The complaint also alleges that on December 13, 1974,
Respondent through Supervisor John Dalzell "created an
impression of surveillance of its employees' union activi-
ties "
Regarding this, Respondent's former material handler
and stockchaser David McDonald testified that on the af-
ternoon of December 13, 1974-the day after the represen-
tation election-while he was on his way to the water foun-
tain for a drink he was greeted by Supervisor Dalzell, with
whom he is on a first-name-calling basis and with whom he
usually chatted several times a day According to McDon-
ald, after they exchanged their customary first-name greet-
ing, Dalzell made the remark that "I was thinking about
putting you on my staff until after the way you voted yes-
terday I don't know about you," to which McDon-
ald responded, "You don't know how I voted yesterday
just because of the buttons I had on " This was the end of
the matter and, according to McDonald, these remarks
were exchanged in a genial, friendly, and good-natured
way on both sides McDonald acknowledges that prior to
the election he wore a Sheet Metal Workers button and
had campaigned openly for that Union, that it was known
throughout the plant-to workers and supervisors alike-
that he favored that Union, and that he never disclosed to
anybody how he voted in the election
Respondent's material control supervisor, John R Dal-
zell, who acknowledges being on a friendly first-name basis
with David McDonald, denies any exchange of the nature
described by the latter Dalzell was aware that McDonald
wore a Sheet Metal Workers button
Although I was favorably impressed with the testimonial
demeanor of both David McDonald and of John Dalzell, I
would be unjustified in preferring the testimony of Mc-
Donald as preponderating in weight over that of Dalzell
Accordingly, General Counsel has failed to sustain his bur-
den of proof in this regard "The burden of proof is upon
the General Counsel When the Trial Examiner is not
persuaded by the testimony of the General Counsel's wit-
nesses the General Counsel has failed to meet that
burden of proof " Blue Flash Express, Inc, 109 NLRB 591,
592 (1954) See also AAA Lapco, Inc, 197 NLRB 274
(1972), Brotherhood of Painters, Local 76 (Gomez Printing &
Decorating Co), 182 NLRB 405 (1970)
Even were I to credit the testimony of McDonald and
reject Dalzell's denial, however, I would still find and con-
clude that the described episode did not constitute unlaw-
ful "[creation of] an impression of surveillance" as alleged
in the complaint McDonald's espousal of Sheet Metal
CHRYSLER AIRTEMP SOUTH CAROLINA 431
Workers, including his wearing of its button, was open,
unconcealed, and avowed It was in no way unlawful for
his employer to observe this, nor the fact that he voted in
the election Nor, in the circumstantial congeries present-
ed, would it have constituted unlawful creation of "an im-
pression of surveillance" even if Dalzell had made the re-
mark attributed to him by McDonald 9 Cf Aztec
Chemicals 218 NLRB 116 (1975)
It is accordingly found that it has not been established
by a preponderance of substantial credible evidence that
Respondent "created an impression of surveillance of its
employees' union activities" as alleged in the complaint
C Writings Claimed To Have Been Violative of Section
8(a)(1)
1 Introduction
We move now to various written communications from
Respondent to its employees, which are also alleged to
have constituted unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act Four communications are in-
volved-three during the November-December 1974 pre-
election campaign, and one in the January 1975 period
antedating the "runoff" election These four communica-
tions, comprising the basis for the complaint here, have
been culled out of a much larger batch of communications
in a steady drumfire of electioneering transmissions from
all sides in a spirited election campaign 10
2 The complained-of letters
a November 25, 1974, letter
The complaint alleges that in a November 25, 1974, let-
ter to Respondent's employees from Plant Manager Rich-
ard L Voorhees Respondent threatened them that "bring-
ing a union into our plant at this time could be the straw
that broke the camel's back "
It is undisputed that the letter in question (G C Exh 2)
included the quoted remark as a postscript Respondent
correctly points out, however, that the remark was in the
context of reminding employees of the unfavorable and
declining economic conditions with which it was faced-as
described supra and uncontroverted herein-and alerting
them to the possibly adverse economic impact upon the
Employer of plant unionization, while at the same time
stressing that the employees were free to vote as they
pleased in the upcoming election t i In the particular con-
9 In the situation presented, the remark attributed to Dalzell would hardly
have been other than in the nature of a friendly `josh' between two persons
on very friendly terms, after the election outcome, but hardly the "[creation
of] an impression of surveillance "
10 It is observed that the Charging Party Union pressed no objections to
the conduct of either election, and interposed no objections to the "runoff'
election which it lost
11 Respondent had in its earlier letters of November 6 and 13 (as well as
November 15 and 19), 1974, used the same expression (i e, "bringing a
union in could be the straw that broke the camel's back") within a like
context of known economic stnngencies, accompanied by assurances of
employees' freedom to vote as they wished (Resp Exhs 6 and 8, G C Exhs
10 and 11) Respondent's carefully drafted unexceptionable `Guidelines to
text described, this did not fall within the Act's proscrip-
tions Moreover, the letter in question was accompanied by
an enclosed "Questions and Answers" pamphlet (G C
Exh 2A)-referred to in the letter-which explicitly states
that Respondent "would not close its Winnsboro Plant just
because a union comes in "
b December 6, 1974, letter
The complaint calls attention to a further alleged threat
in Respondent's December 6, 1974, letter (also from Plant
Manager Voorhees) to its employees that "RIGHT NOW YOU
have it better than unionized employees represented by Mr
Fie 12 or the UAW Why would you want to add straws to
the camel's back "
It is again undisputed by Respondent that the quoted
words are excerpted from its letter of December 6, 1974, in
which, among other things, Respondent pointed out or
confirmed that in view of continuing economic stringencies
it was constrained to announce a temporary shutdown
from December 13, 1974, to January 5, 1975 However, in
addition to the context already provided, supra, in connec-
tion with its November 25 letter, including the camel's
back allusion, Respondent explains that its December 6
letter was specifically in response to a campaign handbill
by the Union to the employees on the previous day, De-
cember 5, dealing with the possibility of a plant closing in
the event of unionization, which informed the employees
that "There has been no official word from the Company
that this will happen" and that it was "only rumor, not
fact, and should be ignored," and which-in contradistinc-
tion to the Employer's camel's back allusion, adopting a
different zoological or barnyard allegory-stated that
"This would be killing the goose that lays the golden eggs"
The Union's December 5 handbill also calls attention to
claimed better economic conditions for employees at some
unionized plants Respondent's December 6 letter takes is-
sue with those claims 13 On December 6, the Union issued
a further communique, captioned S-T-R I K-E,' which con-
cluded with "We are not concerned about camels, straws
nor saleries [sic] of Chrysler Airtemp Officials We are con-
cerned with getting the employees upward wage adjust-
ments, better working conditions and fringe benefits so
there will be no need for a strike' ' i" On the same date
(December 6) Respondent issued a letter to its employees
calling their attention to the fact that 2 weeks prior to then,
in the Company's "Questions and Answers" pamphlet (su-
pra), the Company had explicitly pointed out that "Air-
temp would not close its Winnsboro Plant just because a
union comes in "
its supervisors for their proper campaign conduct present a similar ap-
proach, stressing the Company's economic blight while emphasizing its ac
knowledgment of its employees' freedom to vote as they wished in the elec-
tion and its determination that "AIRTEMP and its supervisors and foremen
will respect those rights (Resp Exh 7, p 10)
12 Fie is an International organizer of Sheet Metal Workers Local 399,
Charging Party herein, and was apparently in charge of its organizational
campaign
13 While an enclosure to Respondent's December 6, 1974, letter contains
the concluding heavy black-lettered caution to employees to "BE SURE AND VOTE
AS IF YOUR JOB DEPENDED UPON IT ," it is not here alleged that this violated the Act
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c December 9, 1974, letter
Another excerpt to which General Counsel takes excep-
tion, from the voluminous campaign literature issued by
the parties here, is the statement in the December 9, 1974,
letter of Respondent's Personnel Manager Joe Vella that
"There can be no doubt that the key problem[s] facing the
plant right now is SURVIVAL The chief worry facing you and
me is fob security Be sure to vote and vote as if your
job depended on it "
The foregoing letter also stressed that while Respondent
hoped the employees would vote for no union, nevertheless
"YOU ARE FREE TO VOTE AS YOU PLEASE " It also indicated, in
connection with the quoted complained-about statement
concerning plant survival, that Respondent had been at-
tempting to apprise the employees about the existing factu-
al situation in which the plant found itself economically 14
Vella's testimony indicates that his letter in question, dated
December 9, was distributed more or less in the crossfire of
various items of union (i e, Sheet Metal Workers) as well
as company campaign literature Indeed, Vella's December
9 letter was, as usual, speedily followed by a counterpropa-
ganda thrust from the Union
d January 2, 1975, letter
Finally, the following sentence from Respondent's Janu-
ary 2, 1975, letter (from Plant Manager Voorhees) is said to
have constituted a threat comprising an unfair labor prac-
tice in violation of the Act, "Hopefully the run-off election
will end this union matter once and for all and permit the
Company to get on to the work of keeping our plant alive
and protecting the jobs of all of us "
The letter containing the foregoing excerpt was distribut-
ed by Respondent to its employees after the Sheet Metal
Workers and the UAW had lost the most recent general
election (1974) and while awaiting the "runoff" election of
January 23, 1975 It also points out that union objections
to the conduct of the December 12, 1974, election had been
withdrawn, and that the Board would soon be scheduling a
"runoff" election By its further communications of Janu-
ary 7 and 21, 1975, not here complained of, Respondent
alerted its employees to the date (January 23) of the runoff
election and urged them to vote against the Union, in the
first of these again reiterating its "straw that broke the
camel's back" allusion
3 Discussion and resolution
Employers , as well as unions and individual employees
and others , may, of course , communicate their views and
opinions to employees concerning unions in general and in
particular , their predictions as to consequences of union-
ization or nonunionization , and also their recommenda-
tions as to how employees should vote in a representation
election The right to such expression is guaranteed by the
first amendment of the Constitution and reiterated in Sec-
tion 8(c) of the Act A proviso to Section 8 (c) states what
14 Orally as well as in writing None of Respondents oral talks to its
employees is here complained about in any way
has many times been emphasized decisionally, i e, that
such expression is protected so long as it "contains no
threat of reprisal or force or promise of benefit " Prediction
by an employer of possible adverse consequences of union-
ization when pyramided on demonstrated existing business
stnngencies, through reasonably foreseeable piling on of
added cost factors, is not equivalent to a threat to close
down operations in the event of unionization-particularly
where, as here, the employer takes pains in writing to as-
sure his employees explicitly that the plant will not be shut
down dust because of unionization, coupled with strong as-
surances that employees are free to vote as they please
Based upon a demonstrated, and here unquestioned, pic-
ture of very substantial business decline in a bleak econom-
ic climate unrelieved by visible prospect of betterment, Re-
spondent Employer sought orally as well as in writing to
delineate and communicate this picture to its employees, in
candor pointing out to them that, while they remained free
to vote as they pleased, if it were faced with added costs
such as the Union had indicated in the event of unioniza-
tion, it might well be pushed to the wall by any such "straw
[breaking] the camel's back " In view of Respondent's
demonstrated, unquestioned substantial economic strin-
gencies, this was in the ball park or spectrum of reasonable
prediction To the extent that Respondent's carefully draft-
ed "Guidelines" to its supervisors is any indication of its
viewpoint and announced practices to be followed by its
supervisors concerning the matters here involved, it beto-
kens a purpose to adhere strictly to legal requirements un-
der the Act 1s
In the final analysis, the situation here presented adds up
to a spirited election campaign, where blow is traded for
blow, but with none clearly "below the belt" or the voters
through threat (or promise or blandishment) euchered or
beguiled out of their ability to make that free, fair, reason-
ably informed, commonsense (as distinguished from theo-
retically perfect) secret ballot choice contemplated by the
Act
15 A statement such as that in Respondent Personnel Manager Vella s
December 9 1974, letter to `vote as if your job depended on it" could
arguably be considered to be a threat that employees would lose theirjobs-
sooner or later-in the event a union were to be voted in However, the
statement is equally susceptible to the interpretation that it does not threat-
en a loss of jobs as the consequence of unionization as such, but rather that
if unionization resulted in added economic requirements which the employ-
er was unable to bear, such as to force him to the point where he would have
to limit or abandon his business operations as unprofitable, this in turn
could affect or even eliminate some or all employees jobs Under the partic-
ular economic circumstances demonstrated and uncontested here, I perceive
nothing unlawful in an employer's explicating such business factors to his
employees-much as the Union does in its own direction-provided he does
it fairly and, as here, explicitly disavows any intention to close his plant in
the event and because of unionization, and also emphasizes his employees
right to vote for union representation if they so desire Cf Gaedke Cutlery
Manufacturing Co, 220 NLRB 1042 (1975) Furthermore, in the total frame
of reference here presented, considering the massive volume of campaign
literature targeted at employees by both sides-and considering the Union s
opportunities, which it indeed utilized as shown to correct and counter any
feared misapprehensions by employees-it would not seem that this particu-
lar remark should be singled out for formal condemnation Close analysis of
the Union's own preelection propaganda could form the basis for compara-
ble faulting Recognition of the practical realities of a bygone election situa
Lion militate against post facto ruminations over culled-out and warmed-over
campaign phrases at the instance of the loser who did not even file objec-
tions to the conduct of the election
CHRYSLER AIRTEMP SOUTH CAROLINA 433
Accordingly, upon the foregoing findings and the entire
record, I state the following
CONCLUSIONS OF LAW
1 Jurisdiction is properly asserted in this proceeding
2 Under all of the circumstances presented and found,
it has not been established by a fair preponderance of the
substantial credible evidence that Respondent has engaged
in unfair labor practices in violation of the Act, as alleged
in the complaint 16
16 In view of this disposition of the case , it is unnecessary to resolve the
affirmative defense asserted in Respondent 's answer, that Respondent was
inadequately apprised of charges and improperly deprived of opportunity to
clear itself at any investigative stage of this proceeding , as contemplated and
required by the Act and the Board's Rules and Regulations , and procedures
and in contravention of due process requirement That defense is according
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, there is hereby issued the follow-
ing recommended
ORDER 17
It is hereby ordered that the complaint herein, dated
April 9, 1975, be, and the same hereby is, in all respects
dismissed
ly dismissed as moot , and Respondent 's motion renewed on brief to dismiss
the complaint upon those and related grounds , including General Counsel s
alleged sua sponte issuance of a complaint unrelated to any charge filed
which he did not decline to prosecute, is likewise dismissed as moot
17 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 which follows herein shall, as provid-
ed in Sec 102 48 of those 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