Eagle Comtronics, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1982

263 N.L.R.B. 515 (N.L.R.B. 1982)

EAGLE COMTRONICS, INC.
Eagle Comtronics, Inc. and Amalgamated Clothing
and Textile Workers Union, AFL-CIO-CLC.
Case 3-CA-9436
August 18, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS ZIMMERMAN AND HUNTER
On April 9, 1981, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Charging Party, and Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions 3 of the Administrative Law
Judge, as modified herein, and to adopt her recom-
mended Order, as modified.
I The General Counsel has excepted to the Administrative Law
Judge's failure to correct the record as allegedly requested in the General
Counsel's motion to correct the record. In the absence of opposition
thereto, and because such corrections do not affect the outcome of the
instant proceeding, we grant the General Counsel's motion and, accord-
ingly, the record stands corrected.
2 The General Counsel and the Union have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing her findings.
3 In agreeing with the Administrative Law Judge that Respondent did
not unlawfully threaten employees with loss of their Christmas bonus, we
rely on her credibility resolutions, and therefore find it unnecessary to
pass on her further comment that Respondent should not be held ac-
countable for speech "which at most created a minor ambiguity." We
also adopt the Administrative Law Judge's findings and conclusions con-
cerning the "vague" and "murky" testimony about the alleged promise of
benefits. However, we do not adopt her observation that "If anything,
such comments Ion benefits] fall into the nature of harmless campaign
rhetoric."
We agree with the Administrative Law Judge's conclusion that Re-
spondent's conduct of the mock election violated the Act under the
standards of Struksnes Construction Co.. Inc., 165 NLRB 1062 (1967). In
so doing, we disagree with her conclusion that Respondent did not create
a coercive atmosphere. Rather, we note that Respondent had committed
several unfair labor practices prior to the mock election, and some of its
supervisory and managerial personnel were present during much of the
voting. Further, we do not condone the use of copies of the Board's
sample ballot in a mock election.
Although we agree with the Administrative Law Judge's conclusion
that a bargaining order is not warranted here, we do not rely on her
statement that the passage of 2 years between the violations and the pro-
spective holding of a new election mitigated the coercive impact of sev-
eral of Respondent's unfair labor practices. Nor do we rely on her con-
clusion that the Charging Party's withdrawal of its representation petition
meant that the mock election could not have served to undermine the
Union's majority status.
263 NLRB No. 70
During preelection meetings with employees,
Respondent's labor relations manager, Edward
Heinrich, discussed, inter alia, the status of eco-
nomic strikers. Heinrich's testimony indicated that
he told employees that, in the case of an economic
strike, strikers "could be replaced with applications
on file." 4
Although finding that Respondent did not intend
to threaten employees by discussing the replace-
ment of economic strikers, the Administrative Law
Judge nonetheless concluded that Respondent
thereby violated Section 8(a)(1) of the Act. The
Administrative Law Judge observed that, while
Respondent had mentioned its right to replace eco-
nomic strikers, it had failed to inform its employees
of their rights to reinstatement as vacancies became
available. According to the Administrative Law
Judge, this failure to assure employees of their
rights might lead employees to believe erroneously
that their jobs would be permanently forfeited. The
Administrative Law Judge therefore concluded
that the failure to advise the employees fully of
their rights as economic strikers violated the Act.
We do not agree.
The issue posed in this case is the degree of
detail required of an employer who informs em-
ployees that they are subject to replacement in the
event of an economic strike. It is well established
that, when employees engage in an economic
strike, they may be permanently replaced. 5 Of
course, "permanent replacement" does not mean
that a striking employee is deprived of all rights.
Specifically, striking employees retain the right to
make unconditional offers of reinstatement, to be
reinstated upon such offers if positions are availa-
ble, and to be placed on a preferential hiring list
upon such offers if positions are not available at the
time of the offer.6 However, the Board has long
held that an employer does not violate the Act by
truthfully informing employees that they are sub-
ject to permanent replacement in the event of an
economic strike. The Board has held that such
comments do not constitute impermissible threats
under Section 8(a)(l), or objectionable conduct in
an election.7 Unless the statement may be fairly un-
4 The Administrative Law Judge found, and we agree, that testimony
by an employee thaet Heinrich told employees that "if the Union got in . .
. there was a certain period of time we'd be allowed to go on strike, and
after that time there was a number of people that needed jobs, and any-
time his door was open to them," was entirely consistent with Heinrich's
version of events as recounted above. Accordingly. we have accepted
Heinrich's testimony about what he said as accurately reflecting his com-
ments to employees about some of the possible consequences of strikes.
I The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1969). Cf. N.LR.B. v.
Fleetwood Trailer Co., 389 U.S. 375 (1967)
Laidlaw, supra, 171 NLRB at 1369-70; Fleetwood Trailer, supra
Mvississippi Extended Care Center, Inc.. d/b/a Care Inc., Colliersville,
202 NLRB 1065 (1973).
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derstood as a threat of reprisal against employees
or is explicitly coupled with such threats, it is pro-
tected by Section 8(c) of the Act. Therefore, we
conclude that an employer may address the subject
of striker replacement without fully detailing the
protections enumerated in Laidlaw, so long as it
does not threaten that, as a result of a strike, em-
ployees will be deprived of their rights in a manner
inconsistent with those detailed in Laidlaw. To
hold otherwise would place an unwarranted
burden on an employer to explicate all the possible
consequences of being an economic striker. This
we shall not do. As long as an employer's state-
ments on job status after a strike are consistent
with the law, they cannot be characterized as re-
straining or coercing employees in the exercise of
their rights under the Act.8
In the instant case, Respondent informed em-
ployees only that they could be replaced by appli-
cants on file. Such a statement, simply describing
an employer's legal prerogative, does not contra-
vene any Laidlaw rights, but, indeed, is entirely
consistent with the law. Respondent was not re-
quired to delineate more specific rights. According-
ly, we reverse the Administrative Law Judge's
conclusion that Respondent violated Section 8(a)(1)
by its statement in this regard.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 4:
"4. Respondent has violated Section 8(a)(1) of
the Act by promising employees future benefits,
that is, a clambake; by impliedly threatening a
delay in the receipt of improved insurance benefits;
and by conducting an unlawful poll to ascertain
employees' union sentiments."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Eagle Com-
tronics, Inc., Clay and Baldwinsville, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as modified below:
a Care Inc., Colliersville. supra. The cases relied on by the Administra-
tive Law Judge are not to the opposite, and are readily distinguishable
from the instant case. In both George Webel d/b/a Webel Feed Mills a
Pike Transit Company, 217 NLRB 815 (1975), and Hicks-Ponder Ca. A
Division of Blue Bell., Inc., 186 NLRB 712 (1970), enfd. 458 F.2d 19 (5th
Cir. 1972), the respondent went beyond informing the employees of the
risk of being permanently replaced by telling them they would perma-
nently lose their jobs.
1. Delete paragraph l(c) of the Administrative
Law Judge's recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No'rICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with, restrains, or coerces you with respect to
these rights.
WE WILL NOT promise you future benefits
to forestall your union activities.
WE WILL NOT impliedly threaten you with a
delay in receiving insurance benefits.
WE WILL NOT conduct unlawful polls of our
employees to determine their union sympathies
or desires.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in the
National Labor Relations Act.
EAGLE COMTRONICS, INC.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon a
charge filed on November 19, 1979, by Amalgamated
Clothing and Textile Workers Union, AFL-CIO-CLC
(hereinafter the Union), a complaint was issued on Janu-
ary 8, 1980, and reissued as amended on June 24, 1980.
The amended complaint alleges that Respondent Eagle
Comtronics, Inc., through its officers, violated Section
8(a)(1) of the National Labor Relations Act, as amended
(the Act), and unlawfully refused to bargain with the
Union. Respondent's timely answers denied any wrong-
516
EAGLE COMTRONICS, INC.
doing. A hearing on this matter was held in Syracuse,
New York, on January 5, 6, and 7, 1981.
Upon the entire record in this proceeding, including
my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
The Business of Respondent
Respondent, a New York corporation, is engaged in
the manufacture, sale, and distribution of cable television
components and related products at its plants located in
Baldwinsville and Clay, New York. Annually, in the
course and conduct of its business, Respondent pur-
chases, transfers, and delivers to its Baldwinsville and
Clay plants goods, products, and materials valued in
excess of $50,000 which were transported to said plants
directly from States other than the State of New York. I
find that Respondent is an employer within the meaning
of Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
Issues
The specific issues presented in this case are:
A. Whether a majority of Respondent's employees
designated the Union as their duly authorized collective-
bargaining agent.
B. Whether, subsequent to the Union's bargaining
demand, Respondent impliedly threatened its employees
with plant closure, a delay in the receipt of insurance
benefits, and a reduction of other benefits; suggested they
would be replaced by job applicants during a strike;
promised them future benefits; and unlawfully polled
them by conducting a mock election.
C. Whether Respondent's commission of the unfair
labor practices outlined above were so pervasive and
egregious as to negate the possibility of a fair election
and to warrant the issuance of a bargaining order.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union's Campaign
Respondent's work force of 257 employees was distrib-
uted between its Baldwinsville and Clay facilities in
northern New York State. With one exception, the unfair
labor practices described in the complaint were alleged
to have occurred at the Clay plant. I
I The complaint incorrectly alleged that the misconduct took place at
the Baldwinsville, rather than the Clay, factory. At the hearing, I granted
the General Counsel's motion to amend the complaint and correct this
error. Baldwinsville employees did participate, however, in the mock
election. See infra
On May 19, 1979,2 eight employees, all of whom
worked at the Clay facility, met with several union rep-
resentatives to discuss organizing Respondent's employ-
ees. On that occasion, the group received authorization
cards and were instructed on the appropriate means to
solicit signatures.
Over the next several weeks, the employees distributed
authorization cards to their coworkers and then returned
signed cards to the union agents. By May 29, 129 execut-
ed authorization cards were in the Union's possession.
By June 4, 144 employees had signed cards. Of this total
which the General Counsel offered into evidence, Re-
spondent objected to only 3 cards signed by persons who
it contended were no longer in its employ on the date
the Union claimed a majority, and another 27 cards on
the grounds that the signatures arguably were not genu-
ine. After comparing the signatures on the challenged
cards with business records bearing valid signatures of
the employees in question, I authenticated and admitted
into evidence all but four of the cards in this latter
group.3 Even without the cards of the 7 challenged indi-
viduals, I find that 137 other employees, a clear majority,
signed valid single-purpose cards designating the Union
as their representative for purposes of collective bargain-
ing by June 4, 1979. 4
On that date, the Union requested recognition from
Respondent both orally and in writing for a unit com-
prised of all production and maintenance employees at
both the Baldwinsville and Clay facilities. Shortly there-
after, Respondent stipulated to a consent election under
the Board's auspices which was scheduled for July 12.
B. The Company's Response
Between June 18 and July 12, in an effort to counter-
act the Union's influence, Respondent embarked on a
counteroffensive. At the outset, Company President Alan
Devendorf and Labor Relations Manager Edward Hein-
rich mapped out the basic strategy of its campaign with
the advice of counsel. An early judgment was made not
to involve low-level supervisory staff in their activity
and a list of do's and don'ts was distributed to them. Ap-
parently these admonitions were effective for no supervi-
sor was accused of misconduct throughout the preelec-
tion campaign.
Respondent's antiunion campaign was two-pronged,
consisting of mailings to the employees and a series of in-
plant group meetings with assemblies of workers from
each of the three shifts at the Clay factory.
The format for each meeting was essentially the same:
During the course of the shift, the employees would con-
gregate at a cleared space at the end of a working area
adjacent to the executive offices. Working from an out-
line or sketchy notes which were reviewed in advance
by counsel, Heinrich, as the principal spokesman, opened
2 Unless otherwise noted, all events occurred in 1979.
3 The propriety of proving the authenticity of union authorization
cards in the manner indicated above has been approved by the Board in
Hecks Inc., 166 NLRB 186 (1967).
4 The cards read: "I hereby accept membership in the ... Union of
my own free will and do hereby designate said . . Union as my repre-
sentative for purposes of collective bargaining in respect to rates of pay,
wages, hours of employment or other conditions of employment."
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings with prepared comments. Occasionally Deven-
dorf would intercede with remarks of his own. A ques-
tion-and-answer period followed. On occasion, the meet-
ings concluded with employees clustered in small groups
raising further questions with Devendorf or Heinrich.
It was during these meetings, five or six in number,"
that the conduct occurred which the General Counsel al-
leges was violative of Section 8(a)(l) of the Act. Twelve
employees were called to present evidence in support of
the Government's case-in-chief but their testimony left
much to be desired. They did not describe the meetings
fully and demonstrated little ability to recall precisely
the contents or the context of the discussions at the
meetings. All too frequently, the witnesses remembered
only fragments of discussions, and seemed to suffer from
an inability to distinguish their own assumptions and im-
pressions from recollections of what management actual-
ly said. With these infirmities in mind, the evidence bear-
ing on the 13 allegations in the complaint is evaluated
below.
C. Alleged Threats of Plant Closure
Three counts in the complaint concern alleged threats
of plant closure. The first of these, set forth in paragraph
VI(a), attributes to Devendorf a threat purportedly made
to first-shift employees that, since the Company was
young, it would probably go under if the Union pre-
vailed.
The General Counsel adduced evidence from six em-
ployees assigned to the first shift, five of whom offered
no testimony which could be held to substantiate the
above allegation. Indeed, Cecilia Gallagher, a member of
the Union's organizing committee, testified in a manner
which repudiated the charge of wrongdoing by Re-
spondent. She stated that, when employees asked Deven-
dorf if the plant might close, he responded on more than
one occasion that "he certainly hoped not." Other first-
shift employees, Diane Shortsleeve and Arlene Mourey,
could recall no statements by company officials bearing
on plant closure. 6 Similarly, second-shift employees
Dawn Morgan and Shirley Mouk agreed, after reviewing
their preheating affidavits, that management representa-
tives made no statements about possibly closing the plant
should the Union succeed. 7 In fact, far from threatening
I Although the record is somewhat ambiguous in this regard, it ap-
pears that at least three meetings with each shift were conducted during
the preelection period on June 18 and July 5 and 10. Another meeting
was held on July I 1, the day after the Union withdrew its petition for an
election. The last gathering may have been when employees participated
in the mock election on July 12. However, some employees had the im-
pression that the meetings were far more numerous than the five or six
(per shift) which Respondent admitted.
6 The remaining employees clearly identified as having worked on the
first shift, Charlotte Johnston and Patricia McClellan, were not ques-
tioned about threatened plant closure. Although Daryl Rathbun was as-
signed to the first shift throughout most of the preelection period, his tes-
timony is discussed in connection with par. VI(g) of the complaint since
he offered evidence which closely tracked the threatening language al-
leged therein.
I Although par. Vl(a) of the complaint refers solely to a threat made
to first-shift employees, I have considered testimony elicited from wit-
neases assigned to other shifts since that testimony was closely related to
the merits of the allegation and the issue was fully litigated. I have fol-
lowed the same practice with respect to the other allegations in the com-
plaint. See Justak Brothers and Company, Inc., 253 NLRB 1054 (1981).
employees with plant closure, another second-shift em-
ployee, Monica Hart, elicited a guarantee from manage-
ment that the Company would take no reprisals against
employees engaged in union activity. Thus, she stated
that, after Heinrich assured assembled employees that
they would be protected if they opposed the Union, she
asked whether those who favored the Union would be
similarly safeguarded. Heinrich responded that no one
would be fired for supporting the Union, that "it was il-
legal to be fired for Union activity." Given the above
evidence, there is no basis for finding that Respondent
violated Section 8(a)(1) of the Act by threatening first-
or second-shift employees with plant closure. According-
ly, I conclude that paragraph VI(a) of the complaint
should be dismissed.
Paragraph Vl(g) of the complaint further avers that
Heinrich impliedly threatened third-shift employees that
the plant would shut down and be moved to another
State if the Union won the election. This allegation ap-
parently stemmed from the testimony of former employ-
ee Daryl Rathbun, who asserted that Heinrich said "they
could shut the doors . . . but they would not be able to
open another plant in New York State, they would have
to move out of state."
However, Rathbun was confused about the dates he
worked on various shifts. The record shows that Rath-
bun was assigned to the first shift for 6 weeks following
his date of hire on May 23, and thereafter was trans-
ferred to the second shift for at least the balance of the
preelection period. Thus, he was in no position to attest
to any speeches made to the third shift. More significant-
ly, no other witness, regardless of shift, corroborated
Rathbun's testimony that the Company threatened to
move to another State. What Rathbun may have picked
up were portions of a dialogue which ensued when an
employee asked if the Company had a plant in Virginia.
Devendorf replied that the Company previously owned a
plant in Virginia and was working on the possible pur-
chase of land in that State. After making this statement,
he added that the Company had just made a substantial
commitment of funds to purchase and renovate the Clay
plant. The import of Devendorf's comments had to be
obvious: Respondent would hardly shut its doors after
having recently made a significant investment in its
present site.
I do not believe Rathbun was engaged in purposeful
misrepresentation; rather, his testimony exemplifies a
weakness common to the accounts of many witnesses in
this case. He heard only partial conversations and con-
verted the fears and rumors which were abounding in
the plant into a false reality.
Paragraph VI(g) also imputes to Heinrich a threat os-
tensibly made to third-shift employees to close the plant
and reopen with new employees.
Third-shift employees Annette Wallen and Virginia
Richardson" testified in support of this allegation, but
discrepancies in their accounts cast serious doubt on the
accuracy of their recollections.
' Respondent disbanded its third shift in November 1979, offering all
the employees on that shift the option of transferring to other shifts.
518
EAGLE COMTRONICS, INC.
According to Wallen, Devendorf asserted during a
meeting in the first week of June that "he would let ev-
erybody go and start all over again . .. they had
enough applications to do it, three, four hundred." How-
ever, the allegation in the complaint attributes the threat
to Heinrich, not to Devendorf, and there were no com-
pany meetings during the first week of June. Moreover,
no reference to such a threat appears in Wallen's pre-
hearing statement although she was interviewed by a
Board investigator at a time when the events in question
should have been much fresher in mind than by the date
of the hearing.
Richardson testified with some hesitation that, at a
meeting at which employees were shown drawings of
competitive products produced in Taiwan, Heinrich said
"something to the effect that if the Union got in, they
had enough applications on file, they had over 1500 ap-
plications that they could close the plant." On cross-ex-
amination, Richardson appeared even more uncertain
than she had been during her direct testimony. Repeated-
ly, she responded to efforts to prod her recollection by
answering, "I can't remember...." Like Wallen, she
acknowledged an omission in her prehearing affidavit: It
made no mention of plant closure in connection with the
Union. Given both Wallen's and Richardson's inability to
recali with any specificity the contents of management's
alleged threats and the lack of uniformity between their
accounts, their testimony cannot be relied upon to sus-
tain a violation of the Act. Moreover, viewing the
record as a whole, I find it highly improbable that man-
agement would exercise prudence and restraint while ad-
dressing the first and second shifts and then throw cau-
tion to the wind by threatening the third shift with plant
closure. Therefore, I conclude that paragraphs VI(g) and
(h) of the complaint are unsupported and should be dis-
missed.
D. Threats of Job Loss
Paragraph VI(f) of the complaint accuses Respondent
of threatening to replace second-shift employees with ap-
plicants on file in order to forestall and discourage their
union activities.
The only second-shift employee to have any recollec-
tion of management statements bearing on the replace-
ment of workers was Dawn Morgan.9 However, her tes-
timony deviated substantially from the language set forth
in the complaint for she recalled that, when management
alluded to hiring new applicants, it was in connection
with a discussion of replacing striking employees.
Specifically, Morgan related, ". . . there was a time
when he said . . . if a union got in . . . there was a cer-
tain period of time we'd be allowed to go on strike, and
after that time there was a number of people that needed
jobs, and anytime his door was open to them."
First-shift employees Gallagher and Mourey also re-
membered that references to hiring job applicants arose
in the context of a discussion concerning strikes. Gal-
lagher, in particular, testified that, when an employee
asked whether the Company could hire other people in
9 Other second-shift employees, Hart and Mouk, made no discussion
bearing on replacing employees with applicants on file.
the event of a strike, management's response was that
there were occasions when replacements could be hired,
but "he didn't think it would come to that."
Heinrich's testimony is consistent with the recollec-
tions of the Government's witnesses. He explained, ". ..
we talked about economic strikers. And that question
came up about economic strikers. And at that point I did
very clearly state that in the case of an economic strike
. . .present employees could be replaced with applica-
tions on file."
I am convinced that Heinrich did not intend to convey
a threat in discussing the replacement of economic strik-
ers. He made no reference to the inevitability of a strike,
did not infer in any way that the Company would use its
power to bring about such a result, and did not affirma-
tively state that striking employees would be permanent-
ly replaced. On the other hand, he made no effort to
advise the assembled workers of their right to reinstate-
ment as vacancies arose, in accordance with applicable
law. See, e.g., George Webel d/b/a Webel Feed Mills &
Pike Transit Company, 217 NLRB 815, 818 (1975); Hicks
Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712,
726 (1970), affd. 458 F.2d 19 (5th Cir. 1972). Without
such assurances, employees might well have been led to
believe that if a strike occurred their jobs would be for-
feited permanently. Therefore, notwithstanding the inten-
tions of Respondent's officials, I conclude that the failure
to fully advise employees as to their rights in the event
of an economic strike violated Section 8(a)(l) of the Act.
E. Threats To Withhold Benefits
1. The Christmas bonus
Three allegations in the complaint concern purported
threats by Respondent to reduce or postpone employee
benefits to forestall or discourage their union activities.
The first of these, contained in paragraph VI(b), accuses
Devendorf of threatening first- and third-shift employees
with a loss of benefits due to legal fees the Company had
to divert to counteract union activities.
The General Counsel's witnesses' ability to recall what
management may have said with reference to the above
allegation was singularly flawed. For example, Mourey's
hazy recollection was that Devendorf said something
"about hiring lawyers and that the lawyers are paid out
of the Company profits, and the Christmas bonus also
came out of the Company profits." Hart also testified
that "somebody made a statement ... that legal fees
were coming out of the Company's profits." Gallagher
added that, after employees divided into small groups at
one of the meetings, Devendorf stated that "it would
cost a lot of money for lawyers, and they have to have
lawyers, these aren't his exact words, but he said some-
thing to this effect; came out of the profit of the Compa-
ny and that is where our Christmas bonus came from,
too."1 0 Devendorf attempted to fill in the gaps created
O1 Neither of the two third-shift employees who served as witnesses in
this case mentioned any linkage between legal fees and a Christmas bonus
reduction
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the witnesses' faulty memories. Devendorf explained
that he and Heinrich were joined by Respondent's coun-
sel at group meetings where he explained that all benefits
were derived from the profits an organization makes;
that, in addition to paying legal fees related to the union
campaign, the Company also was involved in two signifi-
cant lawsuits which could affect its fortunes. During the
course of this meeting an employee asked counsel what
his hourly fees were. Beyond this, Devendorf adamantly
denied making any statement either expressly or by im-
plication that the Christmas bonus would be reduced by
virtue of legal fees arising out of contesting the Union.
Even taking the employees' statements alone, there is
insufficient evidence to warrant a finding that Devendorf
unlawfully threatened the work force with a loss of
benefits. I find it a strained interpretation to read into
any of the testimony reviewed above a threat to do away
with the Christmas bonus. Devendorfs comments were
merely factual statements, the truth of which were
beyond dispute. It does a disservice to Respondent's em-
ployees to suggest that they were incapable of assessing
for themselves the validity of their employer's remarks;
but if some persons chose to see sinister implications in
the speech, which at worst created a minor ambiguity,
Respondent should not be held accountable.
2. The minimum wage
Paragraph VI(e) of the complaint charges Respondent
with impliedly threatening a reduction in wages by tell-
ing its employees that the minimum wage would be used
as a base from which the Company would start negotia-
tions.
Two employees, Gallagher and Mourey, offered rela-
tively consistent testimony as to this allegation. Both of
them related, in essence, that employees asked the Com-
pany's officials whether they would be put back to mini-
mum wage. Initially, Gallagher recalled that Heinrich
said employees could lose instead of gain during negotia-
tions. After reviewing her prehearing affidavit, she
added that Heinrich denied that they would be put back
to minimum wage while negotiations were going on, but
that everything was negotiable. Mourey was more pre-
cise. She testified that, in addressing a question, Re-
spondent's counsel explained that "no one actually goes
back to minimum wage, it was just a starting point for
negotiations." She specifically recalled that company
representatives stated that, as a result of negotiations,
employees could wind up with more, the same, or less.
Here, too, Heinrich and Devendorf were in a position
to give a more lucid picture of the discussions involving
the minimum wage. " Devendorf explained,
" I do not mean to imply that the employees were less credible wit-
nesses than were management officials, only that their recollection of
events seemed more severely impaired. This may be understandable con-
sidering the workers' apparent naivete about collective bargaining, the
fact that many of the allegedly threatening remarks were in response to
individual questions posed by employees at rather large assemblies, and
that the witnesses were testifying about circumstances which occurred
almost 2 years prior to the instant hearing. In contrast, even taking into
account a tendency to present one's testimony in the best light, the com-
pany officials were bound to have a better recollection of these meetings
since they prepared for each one, reviewed their remarks with counsel
.. . the question came up about the negotiation
process. A number of our people have never been
involved with the Union. We tried to explain what
some of the processes were that you would go
through. And one of those was what happened at
the table after . . . the union were selected and cer-
tified. .... In connection with the negotiating proc-
ess . . . Mr. O'Hara [Respondent's counsel] talked
about the status quo . . . that during that period of
negotiations status quo would have to be held as far
as any existing benefits . . . that the only con-
straints that either party would have would be
either State or Federal laws that would prohibit
you from dropping below or going over. In other
words, the minimum wage was then brought up as
an example .... And it is possible that we would
start our negotiations from that point ...
He further recalled that, when a question arose relating
to the minimum wage, counsel responded that "whatever
they had now would not be affected in any way through
the negotiations . . . that the negotiations could wind up
where they could either get more or less money . . . or
the same."
The Board takes the position that a coercive statement,
such as the one attributed to Respondent in paragraph
VI(e) of the complaint, may or may not be objectionable
depending on the context in which it was made. Where
the statement can be construed as a threat that the em-
ployer will unilaterally discontinue benefits prior to ne-
gotiations, or adopt a repressive bargaining posture de-
signed to force a reduction of existing benefits for pur-
poses of penalizing the employees for choosing a collec-
tive-bargaining representative, the Board will find a vio-
lation. On the other hand, if the thrust of the employer's
comment is that designation of the union will not auto-
matically secure increases in wages and benefits and that
any reduction in wages or benefits will occur only as a
result of the normal give and take of collective bargain-
ing, then no violation will be found. General Electric
Company, 246 NLRB 1103 (1979); Madison Kipp Compa-
ny, 240 NLRB 879 (1979); Plastronics, Inc., 233 NLRB
155 (1977); Coach and Equipment Sales Corp., 228 NLRB
440 (1977).
Applying the standards articulated in these cases to the
facts in the present matter, I find nothing in either the
employees' or Respondent's accounts which would estab-
lish an unfair labor practice. The most that can be said is
that Respondent's agents advised the employees of the
realities of the collective-bargaining process including
the possibility that benefits could be lost as well as
gained. But at no time did company officials suggest that
they would adopt an intransigent posture during negotia-
tions or threaten employees that their pay would be re-
duced to the miminum wage. Indeed, they indicated that
benefits might be realized as a result of the collective-
bargaining process. By no stretch of the imagination can
it be said on the basis of the remarks reported here that a
violation of the Act occurred.
beforehand, and discussed many of the same topics at three meetings for
every one such meeting attended by the witnesses.
520
EAGLE COMTRONICS, INC.
3. Insurance benefits
In paragraph VI(c), Heinrich also is accused of im-
pliedly threatening employees with a delay in receiving
insurance benefits.
In support of this contention, first-shift employee Gal-
lagher testified briefly that Heinrich, referring to a piece
of union literature he had in hand, told the employees
that he was prevented from meeting with the insurance
company as planned, "because of this Union nonsense."
Second-shift employee Shirley Mouk also remembered
that Heinrich referred to the cancellation of an insurance
meeting caused by the Union's "bullshit." Another
second-shift employee, Hart, recalled with greater clarity
that, just after the Union withdrew from the election,
Heinrich called another meeting and, obviously angered
by a letter which the Union had mailed to all employees,
yelled at the group that he had to cancel an insurance
meeting which was designed to obtain better benefits for
them.
Heinrich conceded he was irritated on receiving a
copy of the Union's parting salvo and spent the better
part of the day with Devendorf and counsel discussing
how to react to it. They agreed that a response should
be made and consequently canceled a meeting which had
been scheduled to select a new group health insurance
plan. At meetings with each shift, Heinrich admitted
that, out of vexation with the union literature, he told
the employees he was compelled to cancel an insurance
meeting. However, he denied suggesting that benefits
would be delayed thereby.
Although Heinrich's outburst came after the Union
had withdrawn its petition for an election, a respondent's
postelection conduct may be unlawful nevertheless
where it is designed to give it an advantage in the event
of future union activity. See Raley's, Inc., 236 NLRB
971, 983 (1978).
Here, even in the absence of an express assertion, em-
ployees easily could construe Heinrich's comments to
mean that insurance benefits would be postponed.
Indeed, Heinrich surely understood the implications of
his remark for why else would Heinrich have seen fit to
announce the cancellation of the insurance meeting at
three separate sessions with the employees. Respondent
had a number of options less threatening than the one it
chose: It could have addressed employees on the day fol-
lowing the planned insurance meeting, refrained from re-
ferring to that meeting, or simply have reassured the em-
ployees that the insurance meeting soon would be re-
scheduled. Instead, Respondent's remarks had the reason-
ably foreseeable effect of transferring to the Union blame
for a delay in arranging improved insurance benefits and
conveying to the employees the disadvantages of contin-
ued union support. At the very least, Respondent must
be held liable for creating uncertainty and perhaps appre-
hension where none needed to exist. By so doing, Re-
spondent violated Section 8(aX)( of the Act.
4. Promise of benefits
Paragraph Vl(d) alleges that Heinrich promised future
benefits to first- and third-shift employees to forestall
their union activities.
The only concrete evidence bearing on this allegation
concerns a clambake which Respondent held for its em-
ployees in August, several months after the union cam-
paign terminated. 2
Gallagher testified that, at one of the group meetings,
an employee who apparently had heard rumors about a
forthcoming clambake questioned Heinrich as to whether
there was going to be such an event. He stated he could
not respond because to do so would be considered a
bribe. Gallagher further related that, after the union elec-
tion was canceled, Heinrich announced that a clambake
would be held and that it was indeed the surprise the
employees had heard about.
Hart recalled references to the clambake in a some-
what different manner. She recalled that, prior to the
mock election, a management official announced there
would be a surprise but he could not announce what it
was. Subsequently, Heinrich informed the employees that
the surprise was a clambake for which each employee
was to receive two free tickets valued at $34 for the pair.
Heinrich denied that he made any statement, either ex-
pressly or by implication, about the clambake during the
campaign period. However, although he may not have
specifically mentioned the word "clambake," several em-
ployees did recollect some reference by management to a
future event, the details of which the Company mysteri-
ously could not reveal. Heinrich did concede that the de-
cision to hold the clambake came during the course of
the union campaign, a decision which he stated would
have occurred regardless of the Union's presence on the
scene.
It is a time-honored principle that an employer con-
fronted with a union organizational campaign is bound to
proceed with the granting or withholding of benefits in
the same manner he would have had the union not been
present. See, e.g., Gold Circle Department Stores, etc., 207
NLRB 1005, 1014 (1973). Here, given Respondent's ac-
knowledgment that its decision to go forward with the
clambake was firm. it had no reason to postpone an-
nouncing the event and allowing it to linger as a sur-
prise, unless it wished to present the Union as an obstacle
preventing the employees' realization of benefits. This is
precisely what the law proscribes and, therefore, Re-
spondent's allusions to a surprise constitute as implied
promise of a future benefit in violation of Section 8(aX1).
5. The mock election
The last allegation of the complaint set forth in para-
gragh VI(i) charges Respondent with unlawfully polling
its employees by means of a mock election.
On July 9, members of the organizing committee ad-
vised the Union's business agent that Respondent's cam-
paign had seriously undermined the employees' prounion
sympathies and jeopardized its chances of winning the
a Several employees offered very vague testimony that company offi-
cials frequently would make statements such as their hands were tied, or
that the Union could make promises while they could not. Annette
Wallen referred to a conversation in which management mentioned "a
package deal" which could not be explained to the employees. Such evi-
dence is too murky and generalized to prove that unlawful promises of
benefits were made. If anything, such comments fall into the realm of
harmless campaign rhetoric
521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election scheduled for July 12. The following day, July
10, the Union formally withdrew its petition for the elec-
tion. On the same date, management relayed the informa-
tion to its employees and decided to go forward with
mock elections on July 12.
The evidence surrounding the conduct of these elec-
tions was abundant. Employees from all three shifts at
the Clay facility and from the Baldwinsville plant were
permitted to participate on a noncompulsory basis. Em-
ployees from each shift were selected to play the roles of
official observers at the polls;13 a ballot box was con-
structed by Devendorf and set upon a table in the area of
the plant where the group meetings had been conducted.
The ballot provided to each voter was an exact repro-
duction of the Board's notice of election; that is, it was
imprinted with the words "National Labor Relations
Board" at the head of the paper, over which the word
"Sample" was stamped in large letters. Empty squares la-
beled "yes" or "no" appeared midway down the sheet
which was otherwise blank. As ballots were handed out,
the individual's name was checked against the Excelsior
list of eligible employees. 14 Little effort was made by the
employees or the Company to ensure the secrecy of the
balloting. Further, Devendorf and Heinrich were present
during much of the voting, sometimes standing nearby or
leaning against a wall approximately 6 feet away from
the ballot box, or on other occasions wandering through
the voting area on the way to and from their offices. The
results of the election, a lopsided 186 to 8 against the
Union, were posted the next day.
The Board has ruled in Struksnes Construction Co.,
Inc., 165 NLRB 1062 (1967), that the polling of employ-
ees is lawful as long as the following standards are ob-
served: (I) the purpose of the poll is to determine the
truth of a union's claim of majority; (2) this purpose is
communicated to the employees; (3) assurances against
reprisals are given; (4) balloting is secret; and (5) the em-
ployer has not engaged in unfair labor practices or other-
wise created a coercive atmosphere.
Contrary to Respondent's assumption, the fact that the
poll of its employees was conducted after the election
petition was withdrawn does not insulate it from a duty
to comply with the dictates of Struksnes. See Helena
Laboratories Corporation, 228 NLRB 294 (1977). In evalu-
ating the manner in which this poll was conducted, I
conclude that Respondent did not comply with the
Struksnes criteria.
At the outset, Respondent contends that Struksnes is
inapplicable to an election which is prompted by em-
ployee requests and is employee-conducted. However,
Respondent's prepared outline listing the points which
were to be raised at the July 10 meeting has a notation
that the employees were to be asked if they desired a
mock election. I infer from this that, if the employees
had not initiated the proposal for such an election, Re-
13 On one shift, a supervisor acted as an observer.
14 Several witnesses who were members of the original organizing
committee noted that at the time of the elections their names were
crossed out on the Excelsior list. Although this is somewhat suspicious,
there was no evidence that these employees were discriminated against in
any way. Therefore, I decline to speculate as to why their names were so
marked.
spondent had every intention of doing so. More impor-
tantly, Respondent cannot disclaim responsibility for and
involvement in the conduct of the election when the
record establishes that management arranged the polling
place, fashioned the ballots, prepared the ballot box, pro-
vided the Excelsior list, permitted employees time off
from work to vote, and hovered nearby during the bal-
loting. Thus, it was in large measure an employer-spon-
sored poll and the way in which it was handled must be
measured against the Struksnes standards.
Accordingly, I agree with the General Counsel that,
once the Union had withdrawn from the election, Re-
spondent's purpose could not have been to assess the va-
lidity of a claimed majority. In all likelihood, Respond-
ent's motive was to rub salt into the wounds of the
Union's adherents and convince them of the futility of
continued support for the Union should it renew its or-
ganizational efforts. If these were Respondent's motives,
it failed to communicate them to the employees. The em-
ployees may have been assured during the preelection
period that they would suffer no reprisals for union ac-
tivity, but similar guarantees were not extended to pro-
tect their participation in the mock election. Further, al-
though the employees did not take precautions to keep
their ballots secret, the conditions under which the
voting was conducted afforded them little privacy. The
employees might well have believed that any effort to
conceal their ballots would be regarded as suspect in
light of management's hovering presence throughout
much of the balloting.
As to the final Struksnes criterion, while Respondent's
representatives engaged in some relatively minor unfair
labor practices during the preelection period, I do not
hold them responsible for creating a coercive atmos-
phere. If employees were apprehensive and insecure, it
must be attributed to their own fears nurtured by the
rumors which were flooding the plant. By July 12, the
employees understood full well that it was not a genuine
Board-conducted election in which they were participat-
ing. Not one of the employees who testified in this case
had the slightest belief that the election was bona fide or
was misled into believing that the election was Board-
sanctioned simply because the Agency's sample ballot
was utilized. The use of the Board's sample ballot in
these circumstances is not proscribed where it has been
in no way altered in form or content and has led no one
to assume that the Board lent its name or prestige to any
party. Compare Allied Electric Products, Inc., 109 NLRB
1270, 1272 (1954), with GAF Corporation, 234 NLRB
1209 (1978). Notwithstanding Respondent's innocence in
this respect, there is sufficient evidence of its failure to
observe the other Struksnes standards to conclude that its
conduct of the mock election violated Section 8(a)(1) of
the Act.
6. A Gissel order is unwarranted
The General Counsel urges that a bargaining order is
necessary in this case to remedy the coercive effects of
Respondent's severe and substantial unfair labor prac-
tices. Under the standards enunciated in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969), rehearing
522
EAGLE COMTRONICS, INC.
denied 396 U.S. 869, the Supreme Court has affirmed the
Board's authority to issue a bargaining order where an
employer's misconduct has been so outrageous and unfair
or so extensive and pervasive as to undermine the
union's majority strength and impede the election proc-
ess. However, where the unfair labor practices are so
minor as to have only a minimal impact on the election
machinery, a bargaining order will not be sustained.
Gissel Packing Co., supra at 1447-48. With these consid-
erations in mind, I am persuaded, based on my review of
the totality of Respondent's conduct, that a bargaining
order is unwarranted here.
Of the 13 allegations of unlawful practices set forth in
the complaint, 4 were found to have merit. Thus, as I
concluded above, Respondent violated Section 8(a)(1) of
the Act by promising its employees a surprise clambake;
by failing to assure the workers that in the event of a
strike they would not be permanently replaced but
would have a right to reinstatement; by implying there
would be a delay in the receipt of improved insurance
benefits; and by conducting an unlawful poll. Although
these infractions affected large segments of the work
force and cannot be regarded as isolated, I do not regard
them as so serious or of such a lasting quality as to with-
stand correction through the Board's traditional reme-
dies.
It is true that Respondent hinted that a surprise would
be forthcoming in the midst of the preelection period
and that it was widely understood that the surprise was a
clambake. However, the employees subsequently learned
that the monetary value of the fete was $34. It is ex-
tremely doubtful that, in the event of another election
some 2 years after the fact, the employees' sympathies
either for or against a union could be swayed by the
price of two tickets to a clambake.
Similarly, there will be at least a 2-year hiatus between
the time the implied threat to delay insurance benefits
occurred and the conduct of any subsequent election.
This passage of time is sufficient to cure any coercive
impact that threat may have had. In the interim, Re-
spondent may have arranged for a new group insurance
plan. If so, the employees will be in a position to deter-
mine whether benefits were actually delayed and wheth-
er Respondent's implied threat was little more than an
idle remark made in the heat of the moment. Further,
they will be capable of fairly appraising the value of the
benefit against the advantages of unionization.
In failing to advise the employees of their right to re-
instatement in the event of layoffs due to a strike, man-
agement officials at no time suggested that a strike was
inevitable or that it would pursue a course of action
which might bring about such a result. Their sin was one
of omission rather than commission and is one which can
readily be corrected through the posting of a Board
notice which properly advises employees of their rights.
The mock election was conducted after the Union
withdrew from the election and therefore it cannot have
served to undermine the Union's majority. Moreover, the
employees had no illusions they were participating in a
Board-conducted election. Therefore, they have no
reason to assume that, if another election were properly
conducted under the Board's auspices, the same condi-
tions would prevail.
In sum, Respondent's unfair labor practices primarily
took the form of oral statements containing veiled allu-
sions. This is the kind of conduct which should be dissi-
pated easily with a carefully worded notice and the pas-
sage of time. Further, this misconduct took place during
the course of what was a hard fought but generally
lawful campaign on the Company's part. There were no
threats of reprisal for union activity; the complaint is no-
ticeably barren of any allegations of discriminatory dis-
charges; there were no findings of threatened plant clo-
sure, no outright threats of job loss, no stripping away of
benefits, no efforts to solicit or redress employee griev-
ances, no accusations of unlawful interrogations, and no
promises of wage increases. In other words, none of the
flagrant transgressions which the Board and the courts
have regularly regarded as justification for the issuance
of a bargaining order were committed here. See. e.g.,
N.L.R.B. v. Jamaica Towing Inc., 602 F.2d 1100 (2d Cir.
1979); Faith Garment Company, Division of Dunhall Phar-
maceutical. Inc., 216 NLRB 299 (1979), affd. 630 F.2d
630 (8th Cir. 1980).
I conclude, therefore, that Respondent's violations fit
into the category of conduct described in Gissel Packing
Co., supra, as having only a "minimal impact on the elec-
tion machinery" which should not preclude the holding
of a fair election after imposition of the Board's tradition-
al remedy. See Lasco Industries, Inc., 217 NLRB 527
(1975); Tennessee Shell Company, Inc., 212 NLRB 193
(1974); Green Briar Nursing Home, Inc., 201 NLRB 503
(1973).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. By June 4, 1979, the Union was designated by a ma-
jority of Respondent's employees at the Baldwinsville
and Clay plants as their representative for purposes of
collective bargaining.
4. Respondent has violated Section 8(a)(1) of the Act
by promising employees future benefits, that is, a clam-
bake; by impliedly threatening a delay in the receipt of
improved insurance benefits; by failing to advise workers
of their right to recall in the event they were replaced
during a strike; and by conducting an unlawful poll to
ascertain employees' union sentiments.
5. Respondent did not violate Section 8(a)(1) of the
Act by threatening plant closure, a loss of jobs by re-
placing employees with applicants on file, a loss of bene-
fits due to expenditures for legal fees to contest the
Union, or a reduction in pay by bargaining from a mini-
mum wage base.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it be required to
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'
The Respondent, Eagle Comtronics, Inc., Clay and
Baldwinsville, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Promising its employees future benefits to forestall
their union activities.
(b) Impliedly threatening its employees with a delay in
receiving insurance benefits.
(c) Failing to advise employees of their right to rein-
statement as vacancies arise, in the event of an economic
strike.
(d) Conducting unlawful polls of its employees' union
sympathies and desires.
Is In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its facilities in Clay and Baldwinsville, New
York, copies of the attached notice marked "Appen-
dix."' 6 Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
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 Respondent
has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar it alleges violations of the Act not specifically
found.
'6 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
524