E. A. Nord Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1985

276 N.L.R.B. 1418 (N.L.R.B. 1985)

1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. A. Nord Company, Inc. and Production Workers
Union Local 1054. Cases 19-CA-16949, 19-
RC-10958, and 19-RM-1871
4 October 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Eduardo Escamilla, Esq., of Seattle, Washington, for the
General Counsel.
Fred Long, Esq., of Santa Clara, California, and Jonathan
T Kurtz, Esq., of Portland, Oregon, for the Company.
Harlan Bernstein and Robert A. Sacks, Esgs. (Jolles, Sokol
& Bernstein), P.C., of Portland, Oregon, for the Union.
DECISION
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 17 May 1985 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Party
both filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs 1 and
has decided to affirm the judge' s rulings, findings,2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, E. A. Nord
Company, Inc., Everett, Washington, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
[Direction of Second Election omitted from pub-
lication.]
i In light of our disposition of this case, we need not pass on motions
by the General Counsel and the Charging Party to strike certain material
from the Respondent 's brief.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
In the absence of exceptions we adopt, pro forma, the judge 's dismissal
of Objections I and 4.
We agree with the judge that the five $252 prizes offered by the Re-
spondent in the election raffle were so substantial that the raffle consti-
tutes objectionable conduct warranting setting aside the election. In
reaching this conclusion we have taken into consideration the fact that
eligibility to participate in the raffle was limited to nonstrikers In view of
our sustaining the raffle objection on this basis , it is unnecessary to reach
the judge 's finding that the limited eligibility constitutes a separate
ground for finding the raffle objectionable.
Regarding the incidents in the polling area, we note that the conduct
of Attorney Ed Cullen, in releasing employees early in disregard of the
preelection agreement to which he was a party as the Employer 's repre-
sentative, substantially contributed to the "carnival atmosphere."
Member Babson finds it unnecessary to pass on the Union 's objection
involving the Respondent's holding of a raffle in view of his agreement
with the judge's recommending that the election be set aside based on
other conduct
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
These consolidated cases were heard in Seattle, Washing-
ton, on January 15-17 and March 5-6, 1985.
The charge in Case 19-CA-16949, which alleged vio-
lations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, was filed on August 7, 1984, by
Production Workers Union Local 1054 (the Union). The
complaint and the first and second amendment to com-
plaint issued respectively on September 27, November 5,
and December 20, 1984. The complaint as amended al-
leges that E. A. Nord Company, Inc. (the Company)
violated Section 8(a)(1) of the Act.I
The Union filed a petition for an election on April 11,
1984 (19-RC-10958), and the Company filed its own pe-
tition for an election on April 18, 1984 (19-RM-1871).
Pursuant to a Decision and Direction of Election, which
issued on June 15, 1984, an election by secret ballot was
conducted on July 11, 1984, among the employees of the
Company in an appropriate bargaining unit .2 After the
election, each party was furnished with a tally of ballots
which showed that 360 ballots were cast for the Union,
433 were cast against the Union, and 403 were chal-
lenged. The challenges -were sufficient in number to
affect the results of the election. On August 2, 1984, the
Union filed timely objections to the election. Thereafter
some of those objections were withdrawn by the Union.
On October 17, 1984, the Regional Director issued a
Supplemental Decision and Direction of Hearing on
Challenges and Objections. Upon a finding that the chal-
lenged ballots and the remaining objections presented
substantial material questions of fact which could best be
resolved by hearing, he ordered that a formal hearing be
held on the challenges and 14 objections to the election.
The Company requested the Board to review the Re-
gional Director's Supplemental Decision and Direction
of Hearing on Challenges and Objections, and on De-
cember 27, 1984, the Board denied that request on the
ground that it raised no substantial issue warranting
review. On October 17, 1984, the Regional Director
issued an order consolidating cases and notice of consoli-
i By letter dated September 27, 1984, the Regional Director for
Region 19 notified the Union that he was refusing to issue complaint with
respect to the 8(a)(3) and (5) portions of the charge and certain 8(a)(1)
allegations. By letter dated November 15, 1984, the General Counsel's
Office of Appeals denied the Union's appeal from the Regional Director's
partial dismissal
Z The bargaining unit was
All production and maintenance employees, including leadmen, em-
ployed by E. A Nord Company, Inc., at its Everett, Washington lo-
cation, excluding executives and other office and clerical employees,
plant protection employees (guards) and professional and supervisory
personnel as defined in the Act
276 NLRB No. 161
E. A. NORD CO.
dated hearing on challenged ballots, objections, and com-
plaint in which he consolidated Cases 19-CA-16949, 19-
RC-10958, and 19-RM-1871 for the purposes of hearing,
ruling, and decision by an administrative law judge.
During the course of the trial the parties voluntarily
resolved a number of the challenges. At their request I
ordered a recount of the ballots. On March 5, 1985, all
unchallenged ballots were counted and a revised tally of
ballots issued which showed that 528 ballots were cast
for the Union, 619 were cast against the Union, and 25
were still challenged. The challenged ballots were not
sufficient to affect the results of the election. All parties
were in agreement that no further action was needed on
the challenged ballots. No evidence was taken with
regard to them. The only questions left to be resolved
relate to the unfair labor practice allegations and the ob-
jections to the election.
Issues
The primary issues are
1. Whether the Company, through its agents Bill Arm-
strong and John Guay, violated Section 8(a)(1) of the
Act by making various threats and promises to strike re-
placements to the effect that they would lose their jobs if
the Union were voted in and that they would keep their
jobs if the Union were voted out.
2. Whether the election should be set aside on the
basis of the above conduct or of other conduct alleged in
the Union's objections to the election.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Company, and the
Union.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Company, a State of Washington corporation, has
an office and place of business in Everett, Washington,
where it manufactures doors and related products.
During the year immediately preceding issuance of com-
plaint the Company had gross sales in excess of $500,000.
During the same period the Company sold and shipped
goods or provided services from its facilities within
Washington to customers outside of Washington, or sold
and shipped goods or provided services to customers
within that State, which customers were themselves en-
gaged in interstate commerce by other than indirect
means, of a total value in excess of $50,000. The com-
plaint alleges, the answer admits, and I find that the
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
1419
A. Background
The Company and the Union had a collective-bargain-
ing relationship for about 40 years. Their last contract
expired on June 30, 1983. On July 14, 1983, the Compa-
ny's employees went out on strike. In a letter dated Sep-
tember 8, 1983, the Company notified the Union that it
had objective criteria establishing that the Union no
longer represented the employees and that the Company
was withdrawing recognition. After further correspond-
ence in which the Company confirmed that it had with-
drawn recognition, the Union filed the charge in the in-
stant case which, in part, alleged that the Company re-
fused to bargain in violation of Section 8(a)(5) of the
Act. As is set forth above, that part of the charge was
dismissed by the Regional Director and the dismissal was
sustained on appeal by the General Counsel's Office of
Appeals. Both the Company and the Union filed peti-
tions for an election and the Regional Director, in his
Decision and Direction of Election dated June 15, 1984,
found that a question concerning representation existed.
The only unfair labor practice question involved in this
case relates to whether or not the Company overstepped
the bounds of lawful conduct in its preelection antiunion
campaign by making various threats and promises that
violated Section 8(a)(1) of the Act. Most of the allegedly
unlawful conduct occurred at meetings the Company of-
ficials had with groups of employees. In addition it is al-
leged that in a private conversation Company Agent
John Guay made unlawful threats and promises to an
employee. All of the alleged misconduct was undertaken
by Bill Armstrong and John Guay. Bill Armstrong was a
management consultant employed by West Coast Indus-
trial Relations Association and worked as a consultant
for the Company. John Guay also performed services for
the Company as an employee of a management consult-
ant firm named HRMI. The complaint alleges, the
answer admits, and I find that Armstrong and Guay
were agents of the Company acting on its behalf.3
B. The Preelection Meetings
1. The distribution of handouts
When the Union struck on July 14, 1983, approximate-
ly 500 employees joined the strike. Only a few of those
returned to work, but the Company hired strike replace-
ments and additional employees until there were approxi-
mately 700 employees on the job. In its preelection cam-
paign the Company held three sets of meetings with its
working employees in an attempt to reach all of them.
More than 90 percent of those 700 employees attended
the meetings. The first set of meetings, each of which
lasted about half an hour, took place on June 25-27,
1984. There were 22 separate meetings in that time
S Par . 5 of the complaint alleges that Company Supervisor Carl Boer-
sema made certain unlawful threats to employees , and pars. 8(a) and (b)
of the amendment to complaint dated November 5, 1984, alleges that
Company Supervisor Bob Phillips made other unlawful threats . The Gen-
eral Counsel offered no evidence with regard to those allegations and the
Company's unopposed motion to dismiss them was granted.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period. Different departments of the Company attended
different meetings. Between 20 and 40 employees attend-
ed each meeting. All were conducted by Armstrong.
They were held in the Company' s sales training center.
At each meeting in the first series Armstrong introduced
himself and then passed out two pieces of campaign liter-
ature to each employee. The first was entitled "The
Facts of Life-If the Union Wins the Election, What
Could They Do to You." It read:
They continue to be the exclusive representative
of strikers at the Nord Co.
and
They also become your exclusive representative
at the Nord Co.
They then have the power to make decisions af-
fecting your wages, job rights, forced membership
in their Union through a Union Shop Clause, etc.
They could negotiate seniority language resulting
in striker's ability by contract to replace you.
They could negotiate union shop language that
requires you to become a union member in 30 days
or be fired. (Discuss separate handout).
They could negotiate job bidding procedures
giving strikers with the most seniority the best jobs
and you the worst jobs if any were left.
The Union could attempt to force the company
to agree to a strike settlement agreement guarantee-
ing the Union jobs at your expense.
They could appoint strikers as shop stewards
with even more power over you.
Shop stewards could decide whether or not you
should be helped with a problem or tell you to
screw off.
Striking shop stewards could be granted super se-
niority over everyone based on negotiated lan-
guage.
They could call you out on strike to join the rest
of the strikers.
If you were forced to join the st-•ike, they could
tell you were [sic] to get food stamps since they've
run out of strike funds.
WILL You LET BLEDSOE, who as a Union offi-
cial makes over $60,000 a year, bleed you as he has
his striking members?
Voting "NO" in the election is the only sure way
to protect your job and blood supply from Bled-
soe's buddies.
The second was entitled "How Could a Union Shop
Clause in the Contract Effect You." That one read:
1. You would be forced to become a Union
member or lose your job.
You would have to pay an initiation fee of
$75.00.
You would have to pay Union dues of $21.00 per
month.
You could be forced to pay special assessments.
For example, employed members are paying $20.00
per month to replenish the Union's bankrupt strike
fund caused by the 18 Louisiana Pacific strikes and
our strike.
As a forced Union member, you automatically
become subject to the Union's Constitution and By-
Laws. Section 55 of the Union's Constitution pro-
vides for fining members with NO LIMITS. (Note -
The U. S. Supreme Court has approved fines of
over $5,000 in the famous Allise [sic] Chalmers
Case).
Crossing or working behind the Union's picket
line is one of many reasons the Union can fine you.
How many of you qualify for this fine?
2. If you don't pay, you can be expelled from
membership. If you are not a member, under a
Union shop, your employment must be terminated.
3. If you are fined, you can only defend yourself
by first going through all of the Union's internal
Kangaroo Court proceedings. In attorneys fees
alone you could be looking at $10,000 to defend
yourself.
Do you have that kind of money?
BOTTOM LINE-We have only so many jobs to
offer at the Nord Company. If you keep your jobs,
there is no room for the strikers. If the strikers
come back to work, there are no jobs for you.
The Union will have to decide who gets the jobs
as the exclusive representative of strikers and non-
strikers. If you were to bet on it, where would you
put your money?
Armstrong read the entire contents of both documents
to the employees. After each paragraph he stopped and
answered questions if they were asked. At the end of his
presentation he answered further questions. There is no
dispute about the fact that he read the documents. There
is a conflict in testimony concerning additional remarks
that he allegedly made.
The second series of meetings took place on July 2
and 3, 1984. Twenty-four separate meetings were held in
that series . Armstrong conducted 22 of them and Guay
conducted 2. Both Armstrong and Guay started out each
meeting by handing each employee a copy of a campaign
handout entitled "What Happens If the Company Wins?"
That document stated:
The Union can no longer strike and engage in
primary picketing at our plant!
Your jobs are no longer at risk!
You won't be-
At the mercy of the Union!!
Forced to join the Union, pay a $75.00 initiation
fee, pay $21.00 a month in dues-only-to
become subject to the Union's Constitution and
By-Laws giving the Union power to fine you!
Subject to Union security rules that give your
jobs to strikers or subject you to the lowest paid
jobs in the plant. t
Forced into joining the strikers on the picket line
without being able to vote.
E. A. NORD CO. 1421
Manipulated and lied to as the strikers have been
manipulated and lied to by the Union.
ON THE OTHER HAND
The Company will not cut anyone's pay. Fact is,
we've been non-union since September 8, 1983 and
everyone's wages have gone up -not down.
The Company will not cut anyone's benefits. Fact
is, we've been non-union since September 8, 1983
and everyone's benefits have improved since then.
The Company will share its profits with employ-
ees as described in the profit sharing plan.
We are close to turning the corner and with your
help and without the Union and its strike, progress
should be rapid.
The Company will continue to do everything in
its power to provide more jobs, more opportunities,
and minimize massive layoffs caused by the housing
construction cycles.
Once our customers know for sure the strike is
over and we can supply them without strike inter-
ruptions, we believe we will regain the 35% share
of the market we lost under Union conditions.
The Company will continue to work on safety,
communications and supervisory training.
We've all gone through a 12 month learning ex-
perience, including many of our supervisors. We're
not there yet, but we are making progress.
The Company will, with your help, survive and
grow and provide more and better job opportunities
in the process.
YOU CAN MAKE SURE WE GO FOR WARD
NOT RACK WARD
WITH A 100% "NO" VOTE
Both Armstrong and Guay read the text of that handout
to the employees and answered questions during and
after reading. Once again there is a conflict in testimony
concerning statements that Armstrong and Guay made
when they were not reading the material.
The third series of meetings took place on July 9 and
10, 1984. Armstrong held 14 meetings and Guay con-
ducted 10. Once again various handbills were distributed.
There was a newspaper advertisement reflecting the
Company's position and a flier relating to the holding of
a raffle.
The election was held on July 11, 1984.
2. The remarks by Armstrong at the meetings
The complaint alleges that during the employee meet-
ings Armstrong made various threats and promises to the
employees. It specifically alleges that Armstrong threat-
ened employees with loss of jobs by telling them that if
the Union were voted in the strikers would replace them;
threatened employees with loss of jobs by telling them
that the Company would close its doors if the Union
won the election; threatened employees with loss of jobs
by telling them that if the Union won the election the
present employees would be replaced because of the se-
niority clause in the contract; threatened employees with
loss of jobs by telling them that if the Union won the
election the pr :sent employees would be fired within 8
hours; and threatened employees with loss of jobs by
telling them that if the Union won the election jobs
would not be available because the Company could not
afford to pay union wages. In addition, the complaint al-
leges that Armstrong promised employees continued em-
ployment by telling them that if the Union were voted
out, the Company would not lay anyone off.
More than 600 employees heard Armstrong speak
during the employee meetings. The General Counsel
called four witnesses to testify concerning remarks Arm-
strong made at those meetings. The Company called on
Armstrong to testify but offered the testimony of none of
the employees.
Paula Baines, who was an assistant area manager for
the Company at the time of the meetings, testified that in
addition to reading the campaign literature to the em-
ployees, Armstrong spoke to the employees in his own
words. She averred that he told them that if they wanted
their jobs they were to vote no; that there were 1200
people, there was not enough money to employ 1200
people and, if they voted the Union in, they would lose
their jobs. She also averred that he told them that if they
voted the Union out their jobs would be secure.
Wileen Elmer, who was an employee in the panel de-
partment at the time of the meetings, testified that Arm-
strong discussed the Union fining people. According to
Elmer, Armstrong gave the number of people who were
working and the number of people on strike and said
that the numbers were such that if the people working
did not vote against the Union they would not be work-
ing there. She also averred that at one of the meetings
the gist of what Armstrong said was that the people who
were working needed to vote the Union out in order to
keep their jobs.
Lisa McGaa was a ripsaw operator in the gluing de-
partment. She-testified that Armstrong told them that if
the Union got in they would all be unemployed; that if
the employees who were working voted "no" there
would be no layoffs; and that if the Union got in they
would no longer have jobs within 8 hours after the vote
was settled. She averred that at all the meetings she at-
tended Armstrong said in substance that if the Union got
in they would be out. She acknowledged that in an affi-
davit she gave the Board she averred that Armstrong
told them that they would be fired within 8 hours be-
cause the Union would not want them there. There was
no mention in the affidavit of any remark about a lack of
layoffs if the Union lost. After reading her affidavit,
McGaa testified that Armstrong told them that the
Union would not want them in so that they would be
terminated if the Union won.
The last witness to testify on behalf of the General
Counsel was Don Farmer, who was an employee of the
Company during the meetings. Like the other three wit-
nesses called by the General Counsel, he was hired as a
strike replacement. According to Farmer, Armstrong
told the employees that it was imperative that they have
a 100 percent vote against the Union for the Company to
keep its doors open and for the employees then working
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to keep their jobs. Farmer averred that Armstrong also
told them that if the Union won, the employees might
lose their jobs or the Company possibly could go bank-
rupt and close its doors. Farmer also testified that Arm-
strong told them that the Company would not be able to
pay union scale, which could shut down the plant. On
cross-examination, Farmer averred that Armstrong told
them that if the Union won the election the Union could
negotiate wages and benefits that would cause the Com-
pany to go bankrupt. In summing up his testimony he
averred that Armstrong told them that if the Union came
back in the present employees would be out of a job or
there was a possibility the Company would go bankrupt
because it could not afford union scale.
Armstrong testified in great detail concerning what he
said at the meetings. He acknowledged he read to the
employees the text of the literature described above. He
also testified that he answered employee questions both
during his reading and after.
He testified as is set forth in the remainder of this
paragraph: He did not say that if the Union were voted
in, the strikers would replace the present employees. He
did tell the employees that if the Union were voted in,
the Company would be obligated to bargain with the
Union, that if a contract were negotiated, the Company
would have to comply with it, and that if a contract had
a seniority clause, the most senior employees would be
replacing the least senior employees within the facility.
He did not say that if the Union were voted out, the
Company would not lay anyone off. He did tell the em-
ployees that when they were hired they were hired for
as long as they wanted the job but that there were five
basic reasons why an employee could leave the Compa-
ny. He said that the employee would leave if the em-
ployee quit, if he were fired or terminated for breaking a
company rule, if he were laid off because of economic
conditions, if he died, or if he turned that decision over
to someone else to make for him. He told the employees
that the only way they could turn that decision over to
someone else would be by voting in the election for the
Union to have the ability to negotiate hours, wages, and
working conditions. He never told the employees that if
the Union were voted out the Company would not lay
anyone off; he never said the Company would close its
doors if the Union won the election; he never said that if
the Union won, employees would be replaced because of
the seniority clause in the contract. He did talk about se-
niority in the context of collective bargaining. He did tell
the employees that the Company would not have to
agree to any provisions raised by the Union in collective
bargaining. He never said that if the Union won, the
present employees would be fired within 8 hours and he
never said that if the Union won, jobs would not be
available because the Company could not afford to pay
union wages.
Armstrong testified about each of the three sets of
meetings he conducted. He testified in detail concerning
each assertion made by the General Counsel's witness
and in - substance he denied that he made the remarks at-
tributed to him and put in context the remarks that he
did make. He averred that he repeatedly told the em-
ployees that there was a possibility of 1200 voters, that
700 people were inside working, and there were approxi-
mately 500 people that went on strike; that there were
only 700 jobs whatever happened; that it was a numbers
game; and that for the Company to win the election it
wanted everyone to come in to vote because the people
working outnumbered the strikers.
The testimonial demeanor of the four employees who
testified on behalf of the General Counsel was such as to
give cause to believe that they were honest witnesses
who were doing their best to recall the details of scenes
that were very emotional to them. I have considered the
fact that all had some reason to feel hostility toward the
Company. Baines quit when she was given a less attrac-
tive position shortly after the election. The other three
employees were put on permanent layoff shortly after
the election.4 They all appeared to believe that the Com-
pany had promised them continued employment if the
Union was voted out and they felt betrayed by the Com-
pany. That bias may have somewhat distorted their
recollection of what they heard even though they were
doing their best to be truthful when they were testifying.
While I have some reservations with regard to the accu-
racy of the four employees who testified, I have reserva-
tions as to both the accuracy and the veracity of Arm-
strong. On cross-examination he testified that he never
told the employees that voting no in the election was the
only sure way to protect their jobs. He averred that he
would not make that statement because it was not true.
However some of the literature he handed out and read
to the employees stated "Voting `no' in the election is
the only sure way to protect your job and blood supply
from Bledsoe's [a union official] buddies."
Armstrong categorically denied that he said, "The
company will not cut anyone's pay" or "The Company
will not cut anyone's benefits." However at another
point in his testimony, he admitted reading the pamphlet
"What Happens If the Company Wins?" to the employ-
ees. That pamphlet specifically makes both of those state-
ments.
Another handout that Armstrong gave and read to the
employees stated:
BOTTOM LINE-we have only so many jobs to
offer at the Nord Company. If you keep your jobs,
there is no room for the strikers. If the strikers
come back to work, there are no jobs for you.
The Union will have to decide who gets the jobs
as the exclusive representative of strikers and non-
strikers. If you were to bet on it, where would you
put your money?
That was an unequivocal statement that it was the Union
that decided who would get the jobs when in fact noth-
ing could happen with regard to jobs without the Com-
pany's consent.
Paragraph 6(a) of the complaint alleges that the Com-
pany through Armstrong threatened employees with loss
of jobs by telling employees that if the Union was voted
in, the strikers would replace the present employees.
4 Farmer was later recalled.
]E. A. NORD CO.
In NLRB v. Gissel Packing Co., 395 NLRB 575, 618
(1969),$ the United States Supreme Court set forth crite-
ria to be used in determining whether a statement consti-
tuted an unlawful threat or a lawful prediction. That
case involved a company's statements about closing a
plant. However much of the same logic applies here.
The court held:
[A]an employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization. See Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n.
20 (1965). If there is any implication that an em-
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without the pro-
tection of the First Amendment. We therefore agree
with the court below that "[c]onveyance of the em-
ployer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is
not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
ofunionization that are outside his control," and not
"threats of economic reprisal to be taken solely on
his own volition." NLRB v. River :Togs, Inc., 382
F.2d 198, 202 (C.A. 2d Cir. 1967).
Armstrong admitted that he told the employees (by
reading the handouts) that if the Union won the election
the Union could negotiate seniority language resulting in
the strikers' ability by contract to replace them. He ad-
mitted that he told the employees that the Union "will
have to decide" who gets the jobs. He admitted that he
told them if the Company won, their jobs would no
longer be at risk. He also admitted that he told them, in
answer to questions , that there were a number of reasons
why an employee would leave the Company and one of
them was by turning that decision over to someone else
to make for the employee. He acknowledged that by that
statement he meant the Union. I do not credit his asser-
tion that he gave the employees a long explanation of the
nature of negotiations or that he told them that the Com-
pany did not have to give in to the Union. The Compa-
6 See also Components, The, 197 NLRB 163 (1972); cf International
Paper Co., 273 NLRB 615 (1984).
1423
ny controlled the jobs and the employees could not be
let go without the Company' s agreement . Implicit in
Armstrong's remarks was the threat that the Company
would replace the strike replacements with the strikers if
the Union was voted in. As indicated by the testimony of
the employees his remarks were interpreted to mean just
that. It was a reasonable interpretation. As the Board
held in Hanes Hosiery, Inc., 219 NLRB 338 (1975):
We long have recognized that the test of interfer-
ence, restraint, and coercion under Section 8(a)(1)
of the Act does not turn on Respondent's motive,
courtesy, or gentleness , or on whether the coercion
succeeded or failed. The test is whether Respondent
has engaged in conduct which reasonably tends to
interfere with the free exercise of employee rights
under the Act.
I find that Armstrong's remarks viewed in their totali-
ty did reasonably tend to interfere with the employees'
Section 7 rights, and therefore violated Section 8(a)(1) of
the Act. They were not reasonable predictions based on
available facts, but were threats of retaliation if the em-
ployees voted to have the Union represent them.
With regard to the other allegations that Armstrong
made threats and promises, I credit Armstrong's denials.
The four employees who testified were present at differ-
ent meetings and it is possible that Armstrong said differ-
ent things at each meeting, particularly as he responded
to questions. However it is likely that the same general
pattern was followed. There are a number of inconsisten-
cies between the testimony of the employee witnesses
and as indicated above, I do not believe they were
always accurate observers. While I have found a viola-
tion of paragraph 6(a) of the complaint because the al-
leged threats fit into a pattern established by the hand-
outs and Armstrong's reading of the handouts, no such
pattern is present with regard to the other allegations. I
shall therefore recommend that paragraphs 6(b) through
(f) of the complaint be dismissed.
3. The remarks of Guay
Paragraphs 7(a) through (c) of the complaint alleged
that Guay, when he addressed the employee meetings,
threatened the strike replacements with loss of jobs if the
Union won the election; threatened them with loss of
jobs by telling them that the Company would close its
doors if the Union won the election; and threatened
them with financial liability if the Union won the elec-
tion by saying that the Union could fine the employees.
Baines testified that Guay told the employees that
their jobs were secure if they voted the Union out. She
averred that he told the employees that there were 1200
employees on the payroll, that if they voted "yes" the
strikers would come back to work and there would be
no room for them, and that they would lose their jobs.
Farmer testified that Guay told them they would lose
their jobs if the vote did not come out in the Company's
favor and that if the Union won the Company could
close its doors. He also averred that Guay said that if the
Union got in the strike replacements would lose their
jobs and the Company could possibly go bankrupt.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guay in his testimony specifically denied that he made
the statements attributed to him by the employees.
Guay testified as is set forth in the remainder of this
paragraph : At the second series of meetings he handed
out the pamphlet entitled "What Happens If the Compa-
ny Wins" and said that it was a hard meeting for the
Company to run since the Company could not make any
promises. He read the handout and answered questions
as they came up. He did not say that if the Union was
voted in the employees would lose their jobs. The ques-
tion did come up whether that would happen and he an-
swered by saying that it was something that no one
could predict, that if the Union were to win the election
the Company would sit down and negotiate, that no one
could tell what proposals the Union would advance, and
that he was an ex-union man himself and it stood to
reason that one of the first things the Union would seek
to negotiate would be some sort of seniority language to
try to put the people who had been on strike back to
work. He also said that no one knew how negotiations
would come out but in the event that those proposals
were made to the Company and the Company had to
agree because of economic pressures , there could be an
impact on their jobs. He never said that if the Union was
voted in the Company would close its doors or go bank-
rupt. He did not say that if the Union were voted in the
employees' jobs would be secure and that there would be
no layoffs. Questions did come up about layoffs and he
said that was something no one could guarantee because
the market was soft. He told /the employees that the
layoff question depended upon the amount of business
and no one could promise security in that respect. He
did not say that everyone knew that there were 1200 em-
ployees and that if the Union were voted in the strikers
would come back and the current employees would be
out of jobs. Questions concerning financial stability came
up and he answered by saying that no one could foresee
what would happen and the Company had no plans of
going bankrupt . He also said that if the Union came in
and the Company was forced to take a settlement in
which it continued to lose money the Company would
have to look at all its options including bankruptcy.
Guay was not a credible witness. He specifically testi-
fied that he did not tell the employees that if the Union
were voted down, their jobs would be secure. He denied
telling the employees that if the Company won the elec-
tion, their jobs would not be at risk. However at another
point in his testimony he did admit that he read the con-
tents of the leaflet "What Happens If the Company
Wins?" to the employees and that document stated
"Your jobs are no longer at risk!" Guay also acknowl-
edged that he read to the employees the part of the
handout which said that if the Company won the elec-
tion "the Company will not cut anyone's pay." When
asked at the trial whether there were any questions from
employees about whether pay or benefits were ' going to
be cut if the Company won the election , he answered
that there were no such questions and that the employ-
ees' concern was what would happen to their jobs. After
it was pointed out to him that the statement about no
pay cut could be interpreted as a promise that there
would be no reduction regardless of economic circum-
stances, if the employees voted the Union out, he added
to his testimony by averring that he told the employees
that, contrary to the Union's allegations, the Company
would not cut wages and benefits if the Union were
voted out. An affidavit he gave to the Board makes no
mention of any such union rumors or statements of his to
that effect. I believe Guay was less than candid in his
testimony and I do not credit his assertions to the effect
that he gave the employees a long, reasoned exposition
as to the uncertainties of collective bargaining. He did
tell the employees that if the Company won, their jobs
would no longer be at risk. That was consistent with
Baines' testimony to the effect that he told them that
their jobs would be secure if they voted the Union out.
Though, as indicated above, I was not always confident
with regard to the ability of the employees to recall the
details of what was said at the meetings , Baines' testimo-
ny to the effect that Guay told them that if they voted
"yes" they would lose their jobs, and Farmer's testimony
that Guay told them they would lose their jobs if the
vote did not come out in the Company 's favor, was more
believable than Guay' s denial , and I credit the employees
in that regard . I therefore find that the Company,
through Guay, did violate Section 8(a)(1) of the Act by
threatening employees with loss of jobs if the Union won
the election , as alleged in paragraph 7(a) of the com-
plaint.
With regard to paragraph 7(b) of the complaint, which
alleges that Guay told employees that the Company
would close its doors if the Union won the election I am
less inclined to credit the testimony of Farmer. There
was room for misinterpretation of Guay's remarks and
the threat to close does appear to be inconsistent with
Guay's statements concerning the strikers replacing the
strike replacements . There was no testimony with regard
to paragraph 7(c) of the complaint which alleges that
Guay threatened that the Union would fine the employ-
ees, except for the introduction of the campaign litera-
ture i tself. The General Counsel does not contend that
references to fines in the campaign literature constituted
a violation of the Act. I shall therefore recommend that
paragraphs 7(b) and (c) of the complaint be dismissed.
C. Guay's Conversation with McGaa
Paragraphs 7(d) and (e) of the complaint as amended
alleges that Guay made certain threats and promises to
an employee away from the meetings.
McGaa testified that she had a conversation with
Guay the day of the election shortly before the voting
began. She averred that Guay told her to take off a
"vote no" button she was wearing because if she wore
the button in the voting area she would be challenged.
According to McGaa, Guay told her that she had a big
influence with the people around her and he wanted her
to talk to people and tell them to vote no. She averred
that he told her that if the Union got in they did not
have a job, and that if the Union stayed out they had a
job. She also testified that after that conversation she
went into the maintenance department and spoke to
about six people whom she told to vote against the
E A. NORD CO.
Union. She averred that she also told them that her job
was on the line and she could not afford to lose her job.
Guay testified that he knew McGaa but that he did
not make the statements she attributed to him. He
averred that the last time he spoke to her was a couple
of months before the election.
With regard to statements made at the meetings there
was a possibility that honest witnesses could have inter-
preted the remarks differently. However in this one-to-
one conversation between McGaa and Guay, there was
little room for misunderstanding. One or the other was
simply not credible. Though McGaa referred to Guay as
"Smoky," that was Guay's nickname. Guay acknowl-
edged that he knew McGaa. McGaa testified that Smoky
was and is her friend.
It was apparent from her testimony that McGaa felt
betrayed by the Company when she was laid off shortly
after the election. I have considered the possibility of
bias but I still believe that McGaa was an honest witness,
even if her recollection of some events was not always
accurate. There is very little room for confusion in the
short conversation McGaa had with Guay. As indicated
above I do not believe that Guay was a credible witness.
I therefore credit McGaa and do not credit Guay. On
the basis of her testimony I find that the Company
through Guay threatened an employee with loss of her
job as well as other employees' jobs if the Union won
the election and promised that employee continued em-
ployment if the employees voted against the Union, as al-
leged in paragraphs 7(d) and (e) of the complaint as
amended.6
III. THE OBJECTIONS TO THE ELECTION
A. Background and the Objections That Related to
the Unfair Labor Practices
The Regional Director ordered a hearing on 14 objec-
tions filed by the Union. The Union withdrew four of
the objections.? During the trial two of the objections
were overruled on the motion of the Company.8 Some
6 In the absence of allegations in the complaint that Guay's remarks to
McGaa also constituted coercive interrogation and an unlawful attempt
to induce an employee to campaign against the Union, I have not consid-
ered those matters Also in the absence of an allegation in the complaint,
I have not considered as a possible violation of the Act the undemed and
credible testimony of Baines , an assistant area manager at the time of the
election, as follows. The day before the election her supervisor told her
that she was ineligible to vote because she was a nonworking supervisor
On the day of the election Armstrong told her to exchange her distinc-
tively marked supervisory hardhat for s different hardhat worn by hourly
employees and to try to get in and vote She took off her yellow name
tag and put on a hat that did not have a name on it She did vote
7 Objections 5, 6, 8, and 11 The numbers are those stated in the Re-
gional Director's Report on Objections.
s Those were Objection 1, which related to a wage increase, and Ob-
jection 4, which related to an allegation that the Company hired employ-
ees for vote packing purposes. Both allegations, if suslained, would have
constituted' violations of the unfair labor practice sections of the Act
Both allegations were considered by the Regional Director in the investi-
gation of the unfair labor practice charge and the Regional Director spe-
cifically refused to issue complaint on those matters. The Regional Direc-
tor's actions were sustained on appeal by the General Counsel's Office of
Appeals. For the reasons fully set forth upon the record, I held that those
issues could not be litigated in the representation case See Times Square
Stores, 79 NLRB 361 (1948), Parker Bros., 110 NLRB 1909 (1954), Spray
Sales, 225 NLRB 1089 (1976), National Trucking Co., 110 NLRB 837
1425
of the remaining objections paralleled the matters litigat-
ed in the unfair labor practice proceeding. A number of
other objections were keyed to various matters which al-
legedly undermined the necessary laboratory conditions
needed for a fair election. In addition, one objection al-
leged that a raffle conducted by the Company was im-
proper.
The facts relating to the objections that paralleled the
alleged unfair labor practices are set forth above. The
Company, through Armstrong, threatened employees
with loss of jobs by telling them that if the Union were
voted in the strikers would replace them, thereby violat-
ing Section 8(a)(1) of the Act. The Company, through
Guay, threatened employees with loss of jobs if the
Union won the election. He also made unlawful threats
and promises to McGaa. The threats that were made
during the series of meetings shortly before the election,
were directed at between 600 and 700 employees. All the
unfair labor practices took place between the date of the
filing of the petition and the date of the election and
therefore can be considered in determining whether the
election should be set aside. Ideal Electric Co., 134
NLRB 1275 (1961). The threats of loss of employment
were delivered by key company agents who were in
charge of conducting the company's antiunion drive, and
were made to a majority of the eligible voters shortly
before the election. They reasonably tended to interfere
with the employees' free choice in that election, and
warrant setting aside the election and holding a second
election. Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962).9 I therefore recommend that the election of July
11, 1984, be set aside, that Cases 19-RC-10958 and 19-
RM-1871 be remanded to the Regional Director, and
that a new election be directed by the Regional Director
at an appropriate time. h °
The Union contends that there are additional grounds,
unrelated to the unfair labor practices, for setting aside
the election.
B. The Incidents at and near the Polling Place-Facts
and Conclusions
On July 10, 1984, the day before the election, there
was a preelection conference held by a Board agent and
representatives of the Company and the Union to discuss
the logistics of voting and how the employees would be
released to vote. Company Attorney Ed Cullen was one
of the company representatives at that meeting. It was
decided to have inside and outside voting areas. The
inside employees were to vote at an upstairs lunchroom
(1954), Texas Meat Packers, 130 NLRB 279 (1961), Westchester Broadcast-
ing Corp., 95 NLRB 1057 (1951).
9 See also Western Waste Industries, 274 NLRB 173 (1985), blaoposa
Press, 273 NLRB 528 (1984).
10 One of the objections is geared to the Company's campaign litera-
ture which is quoted in full above. The campaign literature is in part re-
lated to the unfair labor practices that have been found. Though the cam-
paign literature is, at least arguably, a crude effort at union busting
through the use of threats, promises, half truths, and distortions of fact
and law , in view of the fact that I am recommending that the election be
set aside on the basis of the unfair labor practices that have been found,
there is no need to determine whether the campaign literature in itself
warrants setting aside the election
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant. That upstairs lunchroom was 20 or 25 feet
by 40 feet. When the tables and chairs in the lunchroom
were pushed aside, there was even less room than that
which could be used as a polling area. The upstairs
lunchroom was reached by stairs from a downstairs
lunchroom and the parties agreed that the downstairs
lunchroom would be kept vacant of employees. It was
also agreed that the Board agent would release the em-
ployees to vote on a departmental basis and that when he
did so he would tell the employees that they had the
right both to vote and not to vote. I"
The election was scheduled to begin at noon and it
began about 10 minutes late. For the first half hour or so
of the election it went smoothly. The Board agent re-
leased employees from the various departments as sched-
uled and told them that if they wished to vote they
could do so. By 12:45 the Board agent found that the
employees from various departments had been released
early by Company Attorney Cullen. The employees
were not in the departments when the Board agent ar-
rived there. Some of them were released 40 minutes
before schedule. The Board agent asked Company attor-
ney Cullen why he was releasing people early and said
that crowds were forming. Cullen replied that the elec-
tion was late in getting started and he had to make sure
that the people voted before they went home at 3:30
p.m. The Board agent pointed out that there had been a
slight delay in getting started but that they were back on
schedule soon after. Cullen said that some of the employ-
ees were not trying to vote and he asked the Board
agent to tell the employees to get out there and vote.
With the early release of the employees the polling
area soon became very crowded. The downstairs lunch-
room, which was to have been kept clear of employees,
became congested and the upstairs lunchroom where the
polling actually took place was jammed with people. At
times there were 200 to 250 people in the upstairs lunch-
room. It was so crowded that people could hardly move.
The Union challenged a number of voters and many
challenged voters loudly protested the challenge. The
people waiting to vote made mocking remarks about the
challenges and laughter continually rippled through the
throng. People made remarks about the challenged voter
not having brains enough to be a supervisor and a loud
round of applause would come from about 200 people. It
became hot and so noisy that the observers could not
hear the perspective voters when they gave their names.
There was repeated heckling concerning - challenges.
Many people shouted "I'm voting no," "down with the
Union," "vote no and keep your jobs," "down with
1054." All the people in the upstairs lunchroom includ-
ing those actually in the polling booth could hear such
remarks. As people came out of the voting booth, other
people asked how they voted. When some of the voters
said they voted no, people waiting to vote said that they
probably did vote for the Union and there was laughter.
Someone in the room said , "I'll be glad when the son-
of-II All the findings in this section are based on the credible and uncon-
tradicted testimony of Bradley Witt, Harold Hendricks, Mike Duffy, and
Russell Friend . Witt attended the preelection conference on behalf of the
Union and the other witnesses were Union observers who were present
when the incidents described occurred.
bitch is over and the Union is off our backs" and a
number of people replied, "Yeah, amen." The rush lasted
for some 2-1/2 hours and during that time remarks such
as "down with the Union," "down with 1054" were
shouted some 25 or 30 times. One person stood on a
bench for 4 or 5 minutes talking to 15 or 20 people who
were standing there cheering. One of the voters started
an argument with the union observer and then stood on
a chair and gave a pep rally with everyone clapping and
cheering. One of the union observers asked the Board
agent to quiet the employees down. The Board agent
tried to do so, but was unsuccessful. The voter who had
been on the chair then went on a table and soon a
number of employees were chanting and cheering with
him. That went on for 5 minutes. The incident took
place about 15 feet from where the voting booth was lo-
cated. Other employees chanted "down with 1054" and
"the hell with the Union." There was cheering and clap-
ping. By 4 p.m. the room became less congested.
There were other things going on during the election.
While one of the Board agents was going to a depart-
ment to release employees, he saw a blackboard on
which was written "vote yes and die, vote no and keep
your job." There was also a pillow case stuffed with
sawdust that was hung on the blackboard with a string.
There was a sign on it saying "No more 1054." The
Board agent erased the blackboard and cut the string.
As the Board held in RJR Archer, Inc., 274 NLRB 335
(1985):
During a representation election the Board must
provide "a laboratory in which an experiment can
be conducted, under conditions as nearly ideal as
possible."9
9 General Shoe Corp., 77 NLRB 124, 127 (1948).
If conditions at an election are such that the free choice
of the employees is imperiled, the election must be set
aside and it is immaterial whether those conditions are
created by employees whose conduct cannot be attrib-
uted either to the employer or to the union. RJR Archer,
supra. The Board must establish the proper procedure
for the conduct of the election. Y.I.P. Limousine, 274
NLRB 641 (1985). In the instant case the carnival atmos-
phere in which the election was conducted and the in-
ability of the Board agents to maintain order while the
employees voted, require that the election be set aside if
for no other reason than to protect the integrity of the
Board's processes . In addition the massive electioneering
by employees at the polling place, as described above, in
itself warrants the setting aside of the election. Claussen
Baking Co., 134 NLRB 111 (1961); cf. Hudson Oxygen
Therapy Sales Co., 268 NLRB 1374 (1984). The Union's
objections must be sustained and the election must be set
aside.
C. The Raffle-Facts and Conclusions
At the preelection meetings held by Armstrong and
Guay on July 9 and 10, 1,984, they both passed out a
leaflet regarding a raffle which read:
E. A. NORD CO.
WIN
WEDNESDAY'S
RAFFLE!!
FIVE $252.00 CASH PRIZES
Will be raffled off on Wednesday,
July 11, 1984
Each employee will be given an eligibility card
by your supervisor at the start of your shift on July
11th.
Employees on Workmen 's Compensation or leave
of absence will be given an eligibility card in the
Personnel Department on July 11 between 12:00
Noon and 2:00 p.m.
A box will be located on a table right outside the
first aid room in the production area from 12:00
Noon until 12:00 midnight on July 11.
Drop your card in the Box
On Thursday, July 12, 11:30 a .m. in the main
lunchroom the FIVE winners will be drawn.
The $252.00 represents the amount of Union dues
strikers pay to the Union each year . This amount
does not include the $75.00 initiation fee and
$240.00 a year special assessment Union members
are paying.
BE SURE YOU VOTE ON WEDNESDAY
The Union is making sure its strikers vote.
Armstrong told the employees that the Company was
conducting a raffle for everyone to come to work on
election day. He said that everyone who worked that
day would receive a card that could be dropped in a
raffle box for a drawing the following day. It is clear
from the wording of the notice that the raffle was only
available to the strike replacements . To get. an eligibility
card the employee had to report at the start of the shift
on election day. Employees on Workmen 's Compensa-
tion or leave of absence were given special consider-
ation, but not strikers. Company General Manager Dar-
rell Springer credibly testified that the Company expect-
ed to receive more votes from employees inside than
from the strikers and that it was beneficial for the Com-
pany to get as many inside employees to vote as possible.
The four winners of the raffle each received $250. The
basic rate of pay at that time was between $4.25 and $5
an hour and there were about 100 employees in that cat-
egory. Another 75 employees received between $5 and
$6.50 an hour. In addition there was a job -sharing pro-
gram so that not all employees worked the full 5-day
week. It was stipulated and I find that the raffle was not
intended to be for the employees on the outside who
were on strike.
In Drilco, 242 NLRB 20, 21 (1979), the Board held:
The Board has held that the conduct of a raffle
does not constitute a per se basis for setting aside a
Board-conducted election .' In those cases in which
raffles have been the subject of timely filed objec-
tions, however, the Board has said that it would
consider all of the attendant circumstances in deter-
1427
mining whether the raffle destroyed the laboratory
conditions necessary for assuring employees full
freedom of choice in selecting a bargaining repre-
sentative.5 We conclude that, under the circum-
stances of this case , the voters' freedom of choice
was impaired by the conduct of the raffle.
Here, the size of the leading prize is so great as
to divert the attention of employees away from the
election and its purpose ; In addition, such a substan-
tial prize inherently induces those eligible to vote in
the election to support the Employer's position. In
reaching this conclusion we have considered the
fact that the stated purpose of the raffle was to en-
courage employees to vote. The Employer's an-
nouncement that the asserted purpose of the raffle
was only to encourage employees to vote does not,
however, overcome the impact of its simultaneous
announcement that it would give away such a large
prize on the day of the election.6
4 Hollywood Plastics, Inc., 177 NLRB 678 (1969); Buzza-Cardozo
a division of Gibson Greeting Cards, Inc , 177 NLRB 589 ( 1969);
Thrift Drug Company, 217 NLRB 1094 (1975)
6 See Hollywood Plastics, Inc., supra.
6 Chairman Fanning relies solely on this ground
In Drilco there were three prizes. They were $50, $100,
and an all-expense paid trip for two to Hawaii or a trip
for a family to Disneyland or Disneyworld.
In the instant case the raffle interfered with the em-
ployees' free choice in the election far more than the one
in the Drilco case. In both situations the prizes were sub-
stantial. Here the raffle was not to encourage all eligible
voters to vote. Only the strike replacements, who the
Company thought were more likely to vote against the
Union, were given access to the raffle. The Company
gave a benefit to those it thought would vote against the
Union while denying that benefit to employees it thought
would vote for the Union. A fair election cannot be con-
ducted under such circumstances. The Union's objection
must be sustained and the election must be set aside.
CONCLUSIONS OF LAW
1. The Company violated Section 8(a)(1) of the Act by
threatening employees with the loss of their jobs if they
selected the Union to represent them and by promising
an employee continued employment if the Union was re-
jected.
2. By engaging in the conduct described above, the
Company has interfered with its employees' freedom of
choice in the election conducted on July 11, 1984. Be-
cause of that conduct and because of the other objections
to the election that have been sustained, the election
must be set aside.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action designed to effectuate the policies of
the Act.12
On these findings of fact and conclusions of law and
on the entire record, I is,,- the following recommend-
ed13
ORDER
The Respondent, E. A. Nord Company, Inc., Everett,
Washington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with the loss of their jobs if
they select the Production Workers Union Local 1054 to
represent them.
(b) Promising any employee continued employment if
that Union is rejected.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to necessary
effectuate the policies of the Act.
(a) Post at its Everett, Washington facility, copies of
the attached notice marked "Appendix." 14 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
12 The Union requests that the remedy include a bargaining order.
Even if it is assumed for the purpose of argument that the Company
committed the type of "hallmark" violation that warrants a bargaining
order (NLRB v. Gissel Packing Co., 395 U S 575 (1969), Mariposa Press,
273 NLRB 528 (1984}; J. & G Wall Baking Co., 272 NLRB 1008 (1984)),
the Board will not order bargaining where, as here, the evidence does
not support an inference that the Union represented a majority of em-
ployees at a relevant time. Gourmet Foods, 270 NLRB 578 (1984).
is If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
34 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that those allegations in
the complaint as to which no violations have been found
are hereby dismissed.
IT IS FURTHER RECOMMENDED that the election con-
ducted on July 11, 1984, in Cases 19-RC-10958 and 19-
RM-1871 be set aside, that those cases be remanded to
the Regional Director for Region 19, and that a new
election be directed by the Regional Directorts at an ap-
propriate time.
15 The notice of election is to contain a statement informing employees
that the first election was set aside because the Board found that certain
conduct of the Company interfered with the employees' free and rea-
soned choice, as is set forth in LuJkm Rule Co, 147 NLRB 341 (1964);
Fruehauf Corp , 274 NLRB 403 (1985).
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 the loss of
their jobs if they select the Production Workers Union
Local 1054 to represent them
WE WILL NOT promise any employee continued em-
ployment if that Union is rejected.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed by Section 7 of the Act.
E. A. NORD COMPANY, INC.