Coach and Equipment Sales Corp.

National Labor Relations Board - Board Decisions

Feb 25, 1977

228 N.L.R.B. 440 (N.L.R.B. 1977)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coach and Equipment Sales Corp . and United Broth-
erhood of Carpenters & Joiners of America, AFL-
CIO. Cases 3-CA-6397 and 3-RC-6502
February 25, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On July 28, 1976, Administrative Law Judge Julius
Cohn issued the attached Decision in this proceeding.
Thereafter, General Counsel and the Union filed
exceptions, and the General Counsel also filed a brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The record establishes and the Administrative Law
Judge found that the Union began its organizational
campaign among Respondent's employees in late
1975 and on November 21, 1975, filed a petition for a
representation election.
Prior to the election, in the latter part of November
and early December, Richard Hallister, an employee,
had several conversations with Norman Koek, his
foreman. During the course of these conversations,
Kock made it clear that, if the Union won, the shop
would close or move away and that they would both
be out of jobs. Koek told Hallister that he had been
advised of the Company's position by management at
a meeting. Substantiating this, Koek testified that, at
a meeting of supervisors in December, former Plant
Manager Hall told the foremen that the plant would
shut down if the Union won the election. Koek's
conversations with Hallister occurred at a time when
rumors of a shutdown were rife throughout the plant.
At the end of December, Respondent mailed a
letter to all its employees informing them that
unionization does not automatically mean higher
wages and better benefits. The letter stated that
"[u]nder the law, an employer is not required even to
continue in effect its existing benefits if the union
wins. Bargaining starts from scratch."
I 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
Later, at a series of four meetings held on January
7, 1976, 2 days before the election, Respondent's
executive vice president, Richard Kreutziger, in-
formed the employees that Respondent would start
from scratch as to benefits and wages if the Union
came in. Kreutziger used hand gestures to demon-
strate that in bargaining he would start at the
minimum wage level and might go up various levels
but would not go higher than the present rates.
The Union lost the election by a vote of 69 to 46.
The Administrative Law Judge concluded that
Koek's remarks to Hallister were not coercive within
the meaning of Section 8(a)(1) of the Act because
they were isolated statements made during the course
of private conversations between friends. We cannot
agree with the Administrative Law Judge's conclu-
sion.
The Board has in the past noted that statements
spoken as a friend which convey a threat of severe
consequences are violative of Section 8(a)(1), adopt-
ing the reasoning that the impact of such statements,
coming from a "friend" who is part of management,
is probably greater in view of the authenticity and
credibility of the source.2
Similarly, the Board does not lightly regard serious
threats, even those made to just one employee, as
isolated. Rather, the Board, relying on past experi-
ence, presumes that such threats are the subject of
discussion and repetition among the electorate.3
Based on the foregoing considerations, we find that
Foreman Koek's statements to employee Hallister
concerning the prospect of a shutdown if the Union
came in, communicated as they were on as many as
six separate occasions, and coming as they did at a
time when rumors concerning shutdown were wide-
spread, violated Section 8(a)(1) of the Act.
The Administrative Law Judge also found that Vice
President Kreutziger' s statements that Respondent
would bargain from scratch as to wages and benefits
were nonthreatening and privileged under Section
8(c) and were therefore not violative of Section
8(a)(1) of the Act. We disagree with this conclusion.
"Bargaining from scratch" is a dangerous phrase
which carries within it the seed of a threat that the
employer will become punitively intransigent in the
event the union wins the election. The Board has held
that such "hard bargaining" statements may or may
not be coercive, depending on the context in which
they are uttered.4 Thus, where a bargaining-from-
scratch statement can reasonably be read in context
as a threat by the employer either to unilaterally
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Wichita Eagle & Beacon Publishing Co., Inc, 199 NLRB 360,370 (1972)
3 General Stencils, Inc., 195 NLRB 1109 (1972), Standard Knitting Mills,
Inc, 172 NLRB 1122 (1968).
4 Wagner Industrial Products Company, Inc, 170 NLRB 1413 (1968).
228 NLRB No. 51
COACH AND EQUIPMENT SALES CORP. 441
discontinue existing benefits prior to negotiations, or
to adopt a regressive bargaining posture designed to
force a reduction of existing benefits for the purpose
of penalizing the employees for choosing collective
representation, the Board will find a violation.5
Where, on the other hand, the clearly articulated
thrust of the bargaining-from-scratch statement is
that the mere designation of a union will not
automatically secure increases in wages and benefits,
and that all such items are subject to bargaining, no
violation will be founds A close question sometimes
exists whether bargaining-from-scratch statements
constitute a threat of economic reprisal or instead
constitute an attempt to portray the possible pitfalls
for employees of the collective-bargaining process.
The presence of contemporaneous threats or unfair
labor practices is often a critical factor in determining
whether there is a threatening color to the employer's
remarks.?
In the instant case, Vice President Kreutziger stated
to the employees at a series of meetings that, if the
Union came in, wages would start from scratch and
that there would be no benefits, as they too would
start from scratch.8 This statement was accompanied
by the assertion, made by hand gestures, that he
would start bargaining at the minimum wage level,
that he might go up from that (clearly indicating his
intent to bargain to a lesser level) but that he would
not in any event go above what the employees were
presently earning. Taken together, these statements
do not simply confine themselves to the legitimate
message that collective bargaining is potentially
hazardous for employees and that as a result of such
negotiations employees might possibly wind up with
less benefits after unionization than before. Rather,
these statements can only be taken as meaning that
Respondent intended to adopt a bargaining stance
designed to insure that collective bargaining could
not result in any increases in benefits for the
employees and would probably result in decreased
benefits-in short, that unionization, if it had any
effect at all, would, because of Respondent's intransi-
gence, result in worse benefits, not better. According-
ly, we deem Kreutziger's remarks to be a threat in
violation of Section 8(a)(1) of the Act.
We find an additional violation of Section 8(a)(1) of
the Act predicated on the conversation between
5 See Saunders Leasing System, Inc., 204 NLRB 448 (1973); Textron, Inc.
(Talon Division), 199 NLRB 131 (1972).
s Computer Peripherals, Inc, 215 NLRB 293 (1974); Host International,
Inc., 195 NLRB (1972); TRW, Inc., 173 NLRB 1425 ( 1968); and Wagner
Industrial Products Company, supra
r See Host International, Inc., supra.
s This account of the facts is taken from Kreutziger 's own testimony.
The Administrative Law Judge failed to pass on this conversation and
instead focused on an earlier discussion between Malloy and several night
shift employees which Webster testified to overhearing . The Administrative
Law Judge found that, in the circumstances, there was nothing coercive in
Malloy's remarks during this incident.
Foreman Malloy and Webster 1 week before the
election. Webster, who was found to be a candid and
credible witness by the Administrative Law Judge,
testified that during this conversation Malloy repeat-
edly remarked on the Company's "legal right" to
lower wages to the minimum if the Union came in.9
In our view, Malloy's comments to Webster about the
Company's supposed "right" to cut wages constitute
a blatant threat of economic reprisal which requires
remedying.10
On the basis of the foregoing, we find that Respon-
dent's conduct substantially interfered with the
election of January 9, 1976, and that the election
should be set aside and a second election conducted.
Remedy
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act, Respondent will be ordered to
cease and desist therefrom and to take appropriate
affirmative action.
The election conducted on January 9,1976, in Case
3-RC-6502 will be set aside and that case will be
remanded to the Regional Director for Region 3 for
the purpose of conducting a second election at such
time as he deems the circumstances permit the free
choice of a bargaining representative.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(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. All production and maintenance employees
including janitors employed at the Employer's prem-
ises at Brown Street Extension, Penn Yan, New York,
excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act.
4. By threatening its employees with plant shut-
down and with loss of benefits in the event they gave
assistance or support to the Union, Respondent has
interfered with, restrained, and coerced its employees
10 Our dissenting colleague maintains that there is no basis for resolving
the conflict in testimony between Malloy and Webster In so doing, however,
he fails to note that the Administrative Law Judge found Webster generally a
credible witness and, in fact , specifically credited Webster over Malloy with
respect to other conflicts in their testimony . Our colleague also fails to
consider that the statements attributed to Malloy by Webster concerning the
economic loss to employees if they selected the Union are entirely consistent
with the Company's overall antiumon campaign , a campaign marked by
repeated threats of loss of benefits and other economic reprisal if employees
selected the Union.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of their rights guaranteed in Section 7
of the Act, and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
6. By the above-mentioned conduct, Respondent
has interfered with the results of the January 9, 1976,
election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Coach and Equipment Sales Corp., Penn Yan, New
York, its officers, agents, successors, and assigns,
shaU:
1. Cease and desist from:
(a) Threatening its employees with plant shutdown
and loss of benefits for engaging in union activity or
giving assistance or support to the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its Penn Yan, New York, place of
business copies of the attached notice marked "Ap-
pendix." 11 Copies of said notice, on forms provided
by the Regional Director for Region 3, after being
duly signed by Respondent's 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election held on
January 9, 1976, in Case 3-RC-6502 be, and it hereby
is, set aside and that case is hereby remanded to the
Regional Director for Region 3 for the purpose of
scheduling and conducting a second election at such
time as he deems the circumstances permit a free
choice on the issue of representation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
" In the event that 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 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 "
MEMBER WALTHER, dissenting in part:
Unlike my colleagues, I would not find that
Foreman Larry Malloy's purported statements to
employee Francis Webster I week before the election
violated Section 8(a)(1) of the Act.
Webster testified that approximately 1 week before
the election he overheard Malloy tell another employ-
ee that if the Union were voted in the Company had
the right to lower employees' wages to the minimum.
Webster admitted that this isolated remark was the
only part of the conversation he overheard.
Webster testified that later in the evening he spoke
with Malloy personally and Malloy again claimed
that the Company had the legal right to lower wages
to the minimum if the Union were elected.
Malloy, for his part, recalled having conversations
of the above nature with Webster and with a group of
employees. Malloy placed both conversations on the
date that the employees received the letter from the
Company informing them, among other things, that
"bargaining starts from scratch." Malloy testified
that on this date he informed a group of employees,
and later Webster, that the Company could start
bargaining from the minimum wage up. Malloy
denied telling anyone that the Company had the legal
right to lower wages to the minimum.
The Administrative Law Judge concluded that the
thrust of the allegation of the complaint concerned
the earlier conversation overheard by Webster and
not the later conversation between Malloy and
Webster. (In this, he was undoubtedly influenced by
the fact that counsel for the General Counsel, in her
opening statement, based the 8(a)(1) allegation on the
earlier conversation.) The Administrative Law Judge
found that it would be inappropriate to base an
8(a)(1) violation on the single remark overheard by
Webster-a remark extracted out of context from a
much longer conversation. He accordingly dismissed
the allegation of the complaint regarding Malloy's
statements. The Administrative Law Judge did not
decide whether Malloy's later conversation with
Webster violated Section 8(a)(1) of the Act, nor did
he resolve the credibility conflict between Malloy and
Webster over the contents of this later conversation
(although as to at least one disputed issue-whether
the Company's letter was a subject of the evening
conversation-the Administrative Law Judge im-
pliedly credited Malloy.)
Counsel for the General Counsel concedes in her
brief that her opening statement may have misled the
Administrative Law Judge into thinking that the
focus of the 8(a)(1) allegation involving Malloy
concerned the earlier conversation rather than the
later one. She nevertheless now asks, and my col-
COACH AND EQUIPMENT SALES CORP. 443
leagues accede to her request, that the Board find that
the later conversation between Malloy and Webster
violated the Act. In finding the violation, my col-
leagues choose to credit Webster instead of Malloy.
I am of the view that the Board does not have
before it an adequate basis for resolving the credibili-
ty conflict between Webster and Malloy. Although
the Administrative Law Judge credited Webster in
another context elsewhere in the opinion, he implied-
ly credited Malloy as to at least one aspect of the
conversation in question. There are no internal
inconsistencies in either person's testimony, nor is
there anything which would tend to render one
person's testimony more probable than the other's. I
would accordingly let the matter stand where it stood
previously and would affirm the Administrative Law
Judge's dismissal of this section of the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with plant
shutdown or economic loss for engaging in union
activity or giving assistance or support to the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section
7 of the Act.
COACH AND EQUIPMENT
CORP.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This consoli-
dated proceeding was heard on April 29, 1976, in Penn
Yan, New York. Upon a charge filed and served January
14, 1976, the Regional Director for Region 3 issued the
complaint in this proceeding on February 24, 1976, alleging
that Coach and Equipment Sales Corporation, herein called
Respondent or Employer, violated Section 8(a)(1) of the
Act in several respects. Pursuant to a Stipulation for
Certification Upon Consent Election executed in the
representation case by Respondent and United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
herein called the Union, approved by the Regional Director
on December 10, 1975, an election was conducted among
certain of Respondent's employees on January 9, 1976. The
tally disclosed that of 116 valid votes counted 46 were cast
for the Petitioner, 69 were cast against it, and 1 vote was
challenged. On January 14, 1976, the Petitioner filed timely
objections to conduct affecting the results of the election.
The Regional Director found that conduct alleged by the
Petitioner in its Objection 3 raised issues identical with the
unfair labor practices found and alleged in the complaint,
and, in addition, his investigation of the objections dis-
closed other conduct not specifically alleged in the
objections but also found to be identical with issues alleged
as unfair labor practices in the complaint. Accordingly, the
Acting Regional Director issued an order dated March 1,
1976, directing the hearing on these objections to be
consolidated for hearing with the complaint.
Respondent filed an answer denying the commission of
unfair labor practices.
Issues
Whether Respondent by its agents threatened employees
with loss of economic benefits should the Union be
successful at the election.
Whether Respondent by its agents threatened employees
with layoff and shutdown of the plant in the event the
Union wins the election.
On the entire record in this case, and from my observa-
tion of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a New York corporation, maintains its
principal office, place of business, and plant at Penn Yan,
New York, where it is engaged in the manufacture, sales,
and distribution of buses and related products. During the
past year Respondent, in the conduct of its business,
purchased goods and materials valued in excess of $50,000,
of which goods and material valued in excess of $50,000
were transported to said plant directly from States of the
United States other than the State of New York; and,
during the same time , Respondent manufactured, sold, and
distributed products valued in excess of $50,000 of which
products valued in excess of $50,000 were shipped from
said plant directly to States of the United States other than
the State of New York. The complaint alleges, the answer
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Late in 1975 the Union began an organizational cam-
paign among Respondent's employees and on November
21 filed a petition for a representation election. Thereafter
Respondent and the Union conducted campaigns in the
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of which both distributed literature . On January 7,
1976, 2 days prior to the election , Respondent held four
meetings of employees on its premises which were ad-
dressed by Executive Vice President Richard Kreutziger.
Certain remarks of Kreutziger , as well as two other
incidents which occurred earlier in the campaign , form the
basis for the allegations of unfair labor practices and
objections to conduct affecting the results of the election.
B. The Alleged Threats of Layoff and Plant
Shutdown
Peter DeBolt , an employee who attended one of the
meetings on January 7 at 2 : 30 p.m., testified that during this
meeting Kreutziger stated that if the Union came in there
was a possibility of a plant shutdown or layoff. He further
stated that Kreutziger was a little bit angry at that point
with the employees at the meeting although DeBolt did not
know why . Kreutziger , in his testimony, denied ever
threatening that the plant would be closed should the
Union win the election. No other employee testified that
Kreutziger made such a threat during the course of his
discussions with employees on January 7 , including the two
employee witnesses who attended the same meeting as
DeBolt . In the circumstances , as this testimony of DeBolt is
thus uncorroborated , and Kreutziger testified credibly in
this respect , I shall dismiss the allegation of the complaint
that Kreutziger threatened the employees on January 7 with
a plant shutdown in the event the Union won the election.
Richard Hallister, an employee , testified that in the latter
part of November and early December 1975 he had several
conversations with Norman Koek , his foreman. It appears
that Hallister and Koek are friends who have known each
other for several years and as a result engaged in discus-
sions concerning the Union and thc prospects of the
campaign , their talks being initiated by either one at any
given time . Hallister testified that during the course of these
conversations Koek made it clear that if the Union won the
shop would close or move away and that they would both
be out of a job. Hallister said that Koek also indicated that
he was advised of this by management in meetings.
According to the testimony of both Hallister and Koek as
well as other witnesses , it is clear that rumors of the plant
shutting down or moving were rife throughout the plant,
not only during this period of time but both before and
after the advent of the Union and continued through the
date of hearing. In this connection Richard Kreutziger
testified that during the latter part of 1975 the Respondent
had indeed been engaged in negotiations with Wayne
Corporation concerning the possible sale of the plant to
that company . In addition Koek , who incidentally is no
longer employed by Respondent , stated that at a meeting of
supervisors in December, the then plant manager , Hall, had
told the foremen that the plant would shut down if the
Union won the election . Hall left the Employer prior to the
election and there is no evidence or indication, other than
Koek's conversation with Hallister, that his remarks, if
made , were communicated to any other employees . There is
no real conflict between Hallister and Koek with respect to
the conversations about plant closure or removal. I fmd the
remarks made by Koek on this subject, occurring in private
conversations with his friend, Hallister, while they were
each assessing their own future job prospects to be
uncoercive and not violative of the Act. In this connection,
I also note that the conversations occurred more than a
month prior to the election; that no other employees were
involved in the discussions, nor are there any allegations
that Koek's sentiments in these matters were communicat-
ed towards other employees; that Hallister was only I of
more than 100 employees who voted in the election; and
that standing alone they do not constitute interference,
restraint, or coercion within the meaning of Section 8(a)(1)
of the Act. I fmd, therefore, that the comments of Koek
were isolated statements made to a friend and, absent
evidence linking them to a proscribed course of conduct, do
not constitute a violation of Section 8(axl) of the Act.'
C. The Alleged Threats of Loss of Economic
Benefits
The complaint alleges that on or about December 29,
1975, Larry Malloy, a foreman, threatened an employee
with loss of economic benefits . Francis Webster testified
that about a week before the election he was working in the
paint booth on the night shift and , as the door was ajar, he
heard Malloy tell another employee, Dan Morris , that if the
Union were voted in the Company had the right to lower
the wages of the people to the minimum . Webster stated
that he did not overhear the entire conversation between
Malloy and Morris, which took a period of time, and that
there were at least two other employees involved in that
conversation. This one remark was the only thing that
Webster overheard. Malloy recalled having a conversation
of this nature with Morris and other employees and believes
that it was the date on which employees had received a
letter from Respondent which informed the employees,
generally, that an employer is not required even to continue
its existing benefits if the Union wins and that bargaining
starts from scratch . Malloy stated that he was asked a
question by another employee , Barkley, whether the
Employer could start bargaining from scratch . Malloy said
he told Barkley and the group of employees , including
Morris, that the Employer could start bargaining at the
minimum wage . Later in the evening Webster himself spoke
to Malloy concerning this conversation, telling him that the
letter was a threat to employees . In his testimony Webster
also conceded that he had since found out that the
Employer had the right to lower people 's wages to the
minimum in some circumstances. In any case , the thrust of
the allegation of the complaint is with respect to the one
sentence Webster claims that he overheard . Neither Morris,
Barkley, nor any of the employees involved in that
conversation with Malloy appeared or testified at the
hearing . However, even if we were to assume that Malloy
stated just what Webster claimed to have heard, that the
employees ' wages would be cut to the minimum, a violation
of the Act could not be based on this single remark
extracted from a much longer conversation. As the Board
I N L R B V. Acker Industries Inc, 460 F .2d 649 (C.A. 10, 1972).
COACH AND EQUIPMENT SALES CORP. 445
has said, "Statements may or may not be coercive,
depending on the context in which they are uttered." 2 Thus
Webster's testimony is not sufficient to posit a violation of
the Act. Malloy, the only other witness as to this matter,
testified without contradiction that the remark heard by
Webster was made in a context of explaining the "Bargain-
ing from Scratch" letter. In such circumstances, Malloy's
statement was privileged under Section 8(c) of the Act .3
Accordingly, I shall dismiss the allegation of the complaint
as to the threat by Malloy.
Although the complaint also alleges that early in Decem-
ber 1975 Foreman Norman Koek threatened employees
with loss of economic benefits, no evidence was submitted
by General Counsel in support of this allegation. However,
on cross-examination Hallister stated that he spoke to Koek
at times about benefits and the latter told him that "if a
union got in, it wouldn't be any better." I fmd, as I did in
connection with the alleged threat of plant shutdown, that
this was another expression of opinion by Koek during a
noncoercive conversation with a friend. Accordingly, I shall
dismiss that portion of paragraph 6(a) of the complaint
relating to any conduct on the part of Koek.
There remains the allegation of the complaint to the
effect that Vice President Richard Kreutziger on January 7
during meetings with employees on company premises
threatened them with loss of economic benefits if the Union
won the election. It will be recalled that at the end of
December Respondent mailed a letter to all employees
entitled "Bargaining From Scratch." In the letter Respon-
dent informed the employees that under the law it "was not
required even to continue in effect its existing benefits if the
Union wins" and that "bargaining starts from scratch."
Respondent further stated that if the Union wanted
something like checkoff of dues they might have to
exchange benefits in order to obtain that. It further advised
the employees that wages and conditions would depend on
what the employee was willing to give and that "it will not
agree, merely because there is a union to raise our costs out
of line with our competition." On January 7, 2 days before
the election Respondent held a series of four meetings with
groups of employees at the plant, all of which were
addressed by Richard Kreutziger. There is agreement on
the part of all witnesses that during the course of these
meetings he made a comparison of Respondent's wages and
benefits with those of a local employer, Penn Yan Boat
Company, where the employees were represented by a
labor union. Five employees, three of whom attended the
meeting at 2:30 p.m., testified in varying ways as to what he
said in connection with the subject of bargaining from
scratch. Employee DeBolt stated that Kreutziger said that
their wages would drop to zero level. DeBolt added that in
response to a question by another employee he said that
what he meant by zero level was minimum wage with no
benefits. Norman West, another employee who attended
the same meeting, stated that Kreutziger said they would
start from scratch on their benefits and wages. In response
to a question from another employee as to whether they
were going to start from nothing, he replied they were going
to start from the minimum wage and work from there. The
third employee at the 2:30 p.m. meeting, Steven Bixler, said
that Kreutziger told them that if they went with the Union
they would go back to the minimum wage. Bixler also
stated that there were no questions from employees at the
meeting. All three of the employees said that they did not
recall any further details of the meeting.
Francis Webster attended the 4 p.m. meeting and
according to him Kreutziger made the comparison with
Penn Yan Boat Company and also said that he was a hard
bargainer who would start from scratch.
Richard Kreutziger testified, in agreement with the
employees, that he discussed the merits of joining a union
and made a comparison of Respondent's benefits with
those of the boat company where the employees were
represented by a union. He affirmed he told the employees
that if the Union came in wages would start from scratch,
and there would be no benefits as they too would start from
scratch.
Finally, several of the employees testified that in the
course of these meetings Kreutziger used his hands to
demonstrate the levels of bargaining. Their descriptions of
his gestures and his explanation of them varied. For
example, DeBolt said that he held one hand over his head
to indicate the point of their present benefits and then
another hand below his chest to show that their wages
would go down to zero level. Foreman Malloy, who
testified on behalf of Respondent, stated that the high hand
held by Kreutziger indicated the Union's demands and the
low hand indicated the minimum wage and Kreutziger
stated he would never go above what the Union was
demanding. The more likely version of the meaning of his
gestures was described by employee Webster, whom I
credit, as his testimony was quite candid on this and other
matters. Webster stated that Kreutziger had placed one
hand on the desk indicating the bottom or minimum wage
level, and his other hand at about his chest which indicated
the current wages and benefits and then went on to raise the
lower hand indicating that he might go up various levels but
that he would not go higher than his upper hand which
showed the present rates.
I do not credit DeBolt's account of the 2:30 p.m. meeting
which alleges that Kreutziger merely stated that the wages
of the employees would go to zero in the event the Union
won. I note that I also did not credit him as to the alleged
threat by Kreutziger to shut down the plant since no other
employee so testified. On the other hand, I credit the
version of employee Norman West who stated that Kreut-
ziger said at the meeting that Respondent would start from
scratch as to benefits and wages. This is consistent with the
account given by Kreutziger himself who testified that he
was following the theme set forth in the letter sent to
employees concerning the subject of bargaining from
scratch.
The Board has held that statements such as bargaining
from scratch or starting at the minimum may or may not be
coercive depending upon the context in which they are
uttered.4 However, even in a case involving contemporane-
ous unfair labor practices, statements such as all benefits
would be negotiable under a union, and benefits presently
2 Wagner Industrial Products Company, Inc, 170 NLRB 1413 (1968 ). 4 Wagner Industrial Products Company, Inc, supra.
3 StumpfMotor Company, Inc., 208 NLRB 431(1974)
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enjoyed could be lost as result of negotiations , were found
by the Board to be nonthreatening and privileged under
Section 8(c).5 In a case involving objections to conduct
affecting an election, the Board found not to be objection-
able a leaflet stating that in the area of wages , hours, and
working conditions, bargaining starts from scratch. Fur-
ther, in the same case, during a speech by the plant
manager, the employees were told that he was going to start
bargaining from scratch and if the union wanted things
such as checkoff they might have to exchange that for some
benefit they then had. The Board found these remarks to
contain no express or implied threat that the employer
would unilaterally take away benefits and require the union
to negotiate to get them back , especially in the absence of
other threatening remarks.6
In the instant case , I have found that Respondent, in its
letter and during the course of the four speeches on
January 7, had reiterated it would start bargaining from
scratch and, in addition, Kreutziger said he would bargain
from the minimum wage . I find that these remarks , made in
the absence of any contemporaneous unfair labor practices
or background of conduct that would tend to lend a
threatening coloration to them , fall within the free speech
privilege of Section 8(c) and therefore did not violate
Section 8(a)(1) of the Act or otherwise interfere with the
conduct of the election.7
S StumpfMotor Company, supra
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 mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
THE OBJECTIONS IN CASE 3-RC-6502
Objections 1, 2, 4, and 5 had heretofore been withdrawn
by the Petitioner . Objection 3 related to the meetings held
by the Employer at which Kreutziger spoke to the employ-
ees concerning their wages and benefits . The Regional
Director had further found that during the course of his
investigation the unfair labor practices alleged in the
complaint herein occurred during the critical period and,
accordingly , such conduct was additionally alleged to have
interfered with the election and consolidated for hearing
herein. As I have found all of said conduct and allegations
not to be violative of Section 8(a)(1), nor has there been any
interference with the election by such conduct , I recom-
mend that Objection 3, as well as the objections relating to
the additional conduct coextensive with the alleged unfair
labor practices , be overruled.
[Recommended Order for dismissal omitted from publi-
cation.]
6 Computer Peripherals, Inc, 215 NLRB 293 (1974) 7 Campbell Soup Company, 225 NLRB 222 (1976).