General Stencils, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1972

195 N.L.R.B. 1109 (N.L.R.B. 1972)

GENERAL STENCILS, INC. 1109
General Stencils , Inc. and International Union of Dis-
trict 50, United Mine Workers of America. Case
29-CA-1028
March 30, 1972
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER'AND MEMBERS FANNING
AND KENNEDY
On August 15, 1969, the National Labor Relations
Board issued its Decision and Order in the above-enti-
tled proceeding,' finding that the Respondent had en-
gaged in and was engaging in certain unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, and
ordering the Respondent to cease and desist therefrom
and to take certain affirmative action, including bar-
gaining with the Union upon request. Thereafter, the
United States Court of Appeals for the Second Circuit
issued a decision2 enforcing the Board's order in part,
denying enforcement in part, and remanding the pro-
ceeding to the Board for further consideration of the
propriety of the bargaining order.
The Board has again reviewed the entire record in
this case, pursuant to the court's remand, and makes
the following additional findings and conclusions:
In remanding this case to the Board, the court left
undisturbed the Board's original findings that Re-
spondent engaged in numerous unfair labor practices
both before and after the Union's demand for recogni-
tion, including (a) interrogating an employee concern-
ing a statement given to a Board agent, (b) threatening
to eliminate certain existing benefits, (c) threatening to
lay off employees if work got slow, (d) threatening to
enforce a dormant no-smoking regulation, (e) threaten-
ing to discharge employees through institution of a new
tardiness rule, and (f) threatening to close the plant. All
of the threats specifically were conditioned on the
union victory in anelection.
In its initial decision, the Board concluded that this
conduct, in addition Jo certain other statements and
interrogations not fqund by the court to violate the Act,
constituted flagrant and, widespread unfair labor prac-
tices which tended to destroy the employees' free
choice in the selection of a bargaining representative.
Finding that the lingering effect of such conduct made
a fair election dubious, if not impossible, the Board
ordered Respondent to recognize and bargain with the
Union without, the necessity of an election.
In declining to enforce the Board's bargaining order,
the court stated that, in view of its refusal to find unlaw-
ful certain conduct relied on by the Board, it had con-
siderable doubt that the remaining unlawful conduct
was of sufficient severity to justify an order to bargain.
Thus, the court remanded the case to the Board for the
purpose of reconsidering the propriety of its original
remedy in the light of the remaining unlawful conduct.
Upon reconsideration, we adhere to the original con-
clusion that an order to bargain is necessary to remedy
the effects of Respondent's unlawful conduct and to
effectuate the policies of the Act. Such a remedy, in our
opinion, clearly falls within the standards set forth in
N.L.R.B. v. Gissel Packing Company.3
In refusing to enforce the Board's bargaining order,
the court began its evaluation of the Respondent's un-
lawful conduct by noting that there was no evidence
that the threat to close the plant, made by, Respondent's
general manager to only one employee, was dis-
seminated to other employees. According to the court,
had evidence of such dissemination been present, a
bargaining order clearly would have been warranted.
The court then discussed the threats to eliminate minor
benefits. Thus, the court stated, "This leaves us with
the unlawful interrogation of Kretschmer about his
statement to the Board agent ... and the threats to a
few employees to withdraw benefits of a relatively mi-
nor nature." The court concluded that the undis-
seminated threat of closure, coupled with the remain-
ing minor violations, does not justify a bargaining
order.
Thus, inexplicably, the court's analysis, appears to
discount the importance of two specific violations of
comparable gravity to the threat of closure; namely, the
threat to lay off and the threat to discharge employees
in the event the Union won an election.
There can be no doubt as to the seriousness of these
threats. All involved direct loss of employment and
were made by a company official who had the power, to
carry out his ominous predictions. The threats were no
less serious or effective simply because they were made
by one in overalls rather than a suit and tie. Klugman's
position of authority-he was the general manager-
was well known. Indeed, in the employees' eyes he was
the employer: it was, Klugman to whom the demands
for recognition were made; it was Klugman who was
told by Lamatima that she wanted to withdraw her
statement to the Board because she was scared. Klug-
man had the authority to carry out the threats, and
every employee knew it.
A direct threat of loss of employment, whether
through plant closure, discharge, or layoff, is one of the
most flagrant means by which an employer can hope to
dissuade employees from selecting a bargaining repre-
sentative. Such conduct is especially repugnant to the
purposes of the Act because no legitimate justification
can exist for threatening to close a plant or to impose
178 NLRB 108.
N.LR.B. v General Stencils, Inc., 438 F 2d 894 ' 395 U S. 575
195 NLRB No. 173
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more onerous and severe working conditions in the
event of a union victory.' Such threats can only have
one purpose, to deprive employees of their right freely
to select or reject a bargaining representative!
For all those reasons, we do not doubt that, in threat-
ening to close the plant, to lay off, and to discharge
employees upon a union victory, Respondent engaged
in proscribed conduct of the most egregious sort. Nor
do we understand the court to disagree. Accordingly,
we perceive that our purpose upon this remand is to
reexamine the currency which may be attributed to
those threats, either by direct proof or by inference
therefrom, and the impact of the threats under the
conditions which prevailed.
To deal first with the most salient violation, we do
not regard as determinative the fact that the threat of
plant closure was made to only one of the 32 em-
ployees. That fact is, indeed, only the beginning of
analysis . A threat of such serious consequences for all
employees for selecting the Union will, all but inevita-
bly, be discussed among employees. That is a reality of
industrial life which the Board has long recognized in
situations involving not only threats of closure, but
even less serious threats which nevertheless affect every
employee in the unit.' The general validity of that sup-
position is attested by the record here. As noted by the
Trial Examiner, employee Lamatima testified to several
conversations during which employees discussed what
action Respondent might take if the Union won. And
Respondent's general manager, Klugman, likewise tes-
tified that he had overheard several employees discuss-
ing the Union. Here, moreover, the probability that the
threat of closure was made known to other employees
was increased by the fact that other serious threats-
notably layoff and. discharge-were also made to em-
ployees Thomas, Kretschmer, and Lamatima. We con-
clude, in short, that, while there may exist a situation
in which a serious threat may, in fact, remain isolated,
the burden of proving such an unlikely event rests with
the Employer. Here that burden was not discharged.
Such threats may, of course, be presumed to have
had a severe initial impact on the employees. But initial
impact is not the focus of our inquiry. Under Gissel we
must attempt to measure the impact over time and,
also, to assess the likelihood that any lasting impact can
be mitigated by remedies short of an order to bargain.
Mathematical precision of analysis is not to be expected
in such a task. Merely requiring the Employer to re-
frain from repeating such threats will not, of course,
erase the threat from the employees' memory. The im-
' Klugman 's statements were not even couched as predictions of foresee-
able consequences.
' See Standard Knitting Mills, Inc., 172 NLRB No. 114 (threats to 4
employees in a unit of 3000); Garland Corp., 162 NLRB 1570 (threats to
3 of 600); W. T Grant Co., 168 NLRB 93 (threats to 7 of 30); and Darby
Cadillac, Inc., 169 NLRB 315 (threats to 3 of 44).
pact of the threat lingers long after the utterances have
been abated . Moreover , the standard remedy for less
severe violations-the posting of a notice informing
employees that the employer will not repeat his unlaw-
ful conduct-often prolongs that impact by insuring
that each and every employee is reminded that such a
threat was made . Aware that the employer has once
threatened him with discharge or plant closure, an em-
ployee is likely to find little security in a promise that
the threat will not be reiterated . In summary , the Board
must evaluate Respondent 's unlawful conduct and de-
termine whether the severity and resultant impact of
such conduct have destroyed the likelihood that a true
picture of employee sentiment can be obtained through
the election process . Such a task is always difficult; it
is no less so in the present case-a close case made even
closer by the court's conclusion that two allegations of
unlawful interrogation could not be sustained . Yet, in
attempting to predict the impact of the unlawful con-
duct in the present case , we remain mindful of the
following considerations:
(1) The Employer made not one threat, but a series
of serious threats which , if carried out, would affect
every employee in the unit . It is realistic , indeed, to
conclude that each potentially affected employee had
reason to learn the nature of such threats and to discuss
the possible consequences with fellow employees.
(2) The threats about which we are most concerned
involved nothing short of complete termination of em-
ployment . While employees may express little concern
over the possible loss of certain minor benefits, the
threatened loss of employment contingent on a union
victory can be expected to produce no less than the
result desired by its perpetrator-fear of serious re-
prisal for exercising a statutory right . It is unlikely that
employees remain free to exercise that right in the face
of such dire consequences.
(3) The threats herein were not made by a shop
foreman or other minor representative or management.
They were made by Respondent 's general manager, a
man who possessed the power not only to threaten but
also to turn threat into reality . Threats made by one in
such a position will be seriously regarded by employees,
and, thus , the risk is increased that the threats will
accompany employees to the voting booth.
We believe that these considerations are helpful in
distinguishing the present case from those cases, re-
ferred to by the court,' in which the Board declined to
issue a bargaining order . A review of those cases con-
vinces us that they are, indeed , distinguishable.
In Blade-Tribune the unlawful conduct consisted of
interrogation of employees concerning their union sym-
pathies, an implied promise of possible new benefits,
' Blade-Tribune Publishing Company, 180 NLRB 432 ; SchrementiBros.,
Inc.. 179 NLRB 853; and Stoutco, Inc., 180 NLRB 178.
GENERAL STENCILS, INC. 1111
and a change in the work schedule of one union adher-
ent. The employer made no threat to close the plant,
nor were there any other direct threats to layoff or
discharge employees for selecting the Union. None of
the violative conduct in that case was qualitatively
similar to the threats herein, and each violation was
easily remedied by traditional means.
In Stoutco the Board found the employer guilty of
threatening to close the plant, threatening loss of cer-
tain existing benefits, imposition of less favorable work-
ing conditions , promising certain benefits, and making
several coercive statements . However, all of the unlaw-
ful conduct was committed by a first-line foreman with
no authority to carry out any severe threats. Moreover,
many of the foreman's statements, though clearly coer-
cive, were made during give-and-take discussions often
initiated by the employees and consisted largely of ex-
pressions of the foreman's personal views.
In Schrementi Bros., the employer interrogated one
employee about her union sympathy and engaged in an
emotion-laden outburst of physical violence against
nonemployee union organizers. The Board did not re-
gard that conduct, under the circumstances, as carry-
ing an irremediable threat of reprisals at the work place
against employees who voted for unionization. More-
over, the assault did not occur under circumstances
suggesting that such conduct would recur.
Thus, in Schrementi Bros, the unlawful conduct,
although a serious violation, was readily remedied by
traditional means, and in the two other cases the im-
pact of the unlawful conduct was narrowed either be-
cause of the nature of the conduct or the position of the
perpetrator. We conclude that those cases are suffi-
ciently different from the instant case so as not to fore-
close our resort to a bargaining order.
It is clear that the principles enunciated by the Su-
preme Court in Gissel leave the Board free, upon
proper evaluation, to determine the appropriate
method by which unfair labor practices shall be remed-
ied, taking into consideration the seriousness of the
conduct, the probable impact that conduct will have on
any future election, and the efficacy of alternative reme-
dies. We are directed to draw upon our knowledge and
expertise in evaluating the effects of any misconduct to
determine whether the policies of the Act will best be
effectuated by directing an election or by dispensing
with an election and relying on some more accurate
indicator of employee sentiment. Where as here the
violative conduct has destroyed the conditions under
which an election can be relied on to indicate employee
choice, the Act's sometimes divergent purposes to pro-
tect employee choice and prohibit unlawful conduct are
equally well served by directing the employer to bar-
gain with the union. We, thus, adhere to our earlier
determination that a bargaining order is an appropriate
remedy. The Employer's conduct-in particular, the
threats of plant closure, layoff, and discharge-is of
such gravity as to render a reliable election unlikely,
even if the Employer were to discontinue his unlawful
conduct.' Accordingly, we shall affirm our bargaining
order.
SUPPLEMENTAL ORDER
Based on the foregoing, and the entire record in this
case, the National Labor Relations Board hereby
affirms its Order issued in this proceeding on August
15, 1969, except as herein modified:
1. Delete paragraph 1(a) of said Order and substitute
therefor the following:
(a) "Interrcgating employees about any statements
given to agents of the National Labor Relations
Board."
2. Substitute the attached Appendix for the Appen-
dix to the original Decision and Order.
CHAIRMAN MILLER, dissenting:
No recent decisional task has more perplexed this
Board, or confounded the courts which review our
decisions, than that committed to us in Gissel." To
determine whether an order to bargain is an appropri-
ate remedy for employer interference with rights pro-
tected by Section 7 of the Act. This case well illustrates
the reasons for the difficulty.
The standards by which we must decide whether to
enter an order to bargain are uniquely amorphous. The
Supreme Court has instructed us to consider: "the ex-
tensiveness of ... unfair practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future."' The Court thus made abun-
dantly clear, as my colleagues correctly state, that the
aim of our inquiry must be somehow to quantify the
impact upon employees which follows from unlawful
conduct by their employer." In such an inquiry, there
can be few per se rules. We must be alert in each case
to the inescapable fact that while the categories of con-
duct prohibited by the Act are finite, there are infinitely
various circumstances which will influence employee
perceptions of such prohibited conduct. And, under
Gissel, it is that infinite variety which we must address.
' In reaching this conclusion we deem it inappropriate to consider em-
ployee turnover since the original entry of the bargaining order. An em-
p^oyer whose misconduct has occasioned the proceedings should not be
permitted to escape his duty to bargain because of the delay that is the
"unfortunate but inevitable result of the procedure required in the Act."
N.L.R.B. v. L. B. Foster Co., 418 F.2d 1 (C.A. 9); N.L.R.B. v. The Kostel
Corporation d/b/a Big Ben Shoe Store, 440 F.2d 347 (C.A. 7).
° N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
Id. at 614.
° "If the Board finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and that employee sentiment
once expressed through cards would, on balance, be better protected by a
bargaining order, then such an order should issue." Id.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The task is made much more difficult by the fact that
it is neither possible nor desirable to probe the con-
sciousness of the affected employees to make a subjec-
tively based measurement of the impact of employer
conduct. We must, in this inquiry, attempt to draw
reasonable inferences from objective events."
The simplest circumstances will serve to illustrate
the point. The discriminatory discharge of a union ad-
herent is routinely cataloged as an egregious violation
with far-reaching coercive impact. And, indeed, in the
overwhelming majority of such cases, the discharge
will be regarded, or suspected, by other employees to
be precisely what it is: punishment of a union adherent.
Nevertheless, if the protected activities of the dischar-
gee were unknown to the employee group, and if the
discharge occurred under such circumstances that the
employee group in fact perceived the discharge to have
been for just cause, then the violation, though nonethe-
less offensive to the statute, must be assigned little or
no weight in determining whether a bargaining order is
an appropriate remedy.
A similar problem of evaluation arises under Gissel,
where an employer unlawfully offers promotion to a
leading employee organizer in exchange for cessation of
his organizing activities. Where the offer is declined,
and the fact of the offer never communicated to the
employee group, little if any impact upon employee free
choice could be expected from the violation. Yet if the
promotion were accepted, and the organizing effort
aborted for lack of a champion, the violation would be
of major significance in the Gissel calculus.
Notwithstanding these imponderables we have been
taken to task by the court here, and by others as well,
for our failure to articulate, at the least, a rough set of
working guidelines by which we approach our judg-
mental task. With due regard for those same imponder-
ables, I believe that the criticism is deserved. My pur-
pose in filing a separate opinion is to outline my
understanding of those principles, however broad,
which have informed the Board's judgment in these
cases, and which merit both articulation and future
adherence.
Initially, our decisions suggest two categories of em-
ployer misconduct which may usefully be regarded as
sufficient per se to justify imposition of an order to
bargain: (1) the grant of significant benefits and (2)
" "It would indeed be a rare case where the finders of fact could probe
the precise factors of motivation which underlay each employee 's choice.
Normally , the conclusion that their choice was restrained by the employer's
interference must of necessity be based on the existence of conditions or
circumstances which the employer created or for which he was fairly re-
sponsible and as a result of which it may reasonably be inferred that the
employees did not have that complete and unfettered freedom of choice
which the Act contemplates ." N.L.R.B . v. Link-Belt Co., 311 U.S. 584, 588.
See also Radio Officers' Union of the Commercial Telegraphers Union, AFL
[A.H. Bull Steamship Company] v . N.L.R.B., 347 U.S. 17, 50-51; N.L.R.B.
v. Gissel Packing Co., supra, 608.
repeated violation of Section 8(a)(3). In United Packing
Company12 and several other recent cases respondent
employers have reacted to a union organizing cam-
paign by promptly identifying and remedying a source
of employee dissatisfaction . In United Packing, a wage
increase was promised during the campaign and deliv-
ered after the employees voted against the union in a
Board-conducted election . It was clear the wage in-
crease was offered and granted to thwart the union. It
was clear to us in assessing the employer 's conduct that
our traditional remedy for that violation , which does
not include rescission of the wage increase , would not
eradicate the impact of the employer 's action . There,
clearly, the establishment of a bargaining relationship
was the only means by which the employees ' rights to
an untrammeled choice could be protected . The neces-
sity for a bargaining order in that case was further
demonstrated by the employer 's collateral credible
threats to discontinue business and discharge em-
ployees if the union were selected . Those added viola-
tions, however , were not crucial to the imposition of a
bargaining order remedy."
Similarly , the reassignment , demotion , or discharge
of union adherents will carry a'message which cannot
be lost on employees in the voting group . While there
is some slight chance that a single 8 (a)(3) violation will
not be perceived as employer retribution , repeated vio-
lation will rarely if ever be misinterpreted . The impact
on employees might be erased if our standard make-
whole remedy could be swiftly obtained . But unfortu-
nately , in the usual litigated case , restoration to em-
ployment comes months or years later, if at all, and
thus the coercive effect of the discrimination is unlikely
ever to be undone . The Board , therefore, since Gissel,
has regularly issued a bargaining order where a union
majority was dissipated by such tactics . See, e.g.,
Drives, Incorporated, 172 NLRB No. 101 and 179
NLRB 526, enfd . 440 F.2d 354 (C.A. 7). J. H Rutter-
Rex Manufacturing Co., Inc., 164 NLRB 5, enfd. in
part and remanded in part 415 F.2d 1133 (C.A. 6), 180
NLRB 878, enfd . 434 F. 2d 1318 (C.A. 6).
These, I believe, are the only two categories of con-
duct where we can , with confidence , suggest a per se
rule. Manifestly , the case before us is not within either
category, and the feature which removes it from either
is the absence of employer action. The employer who
identifies the sources of employee discontent and reme-
dies them, or identified the principal union adherents
and removes them , demonstrates by his actions that he
will oppose the union by unlawful means and that em-
" 187 NLRB No. 132.
" See, e .g., Tower Enterprise, Inc., 182 NLRB 382, where a bargaining
order was predicated on a single 8(a)(1) violation, a general wage increase
announced immediately after the Union's demand for recognition, and em-
ployee discontent over low wages had precipitated the organizational ac-
tivity.
GENERAL STENCILS, INC. 1113
ployees who support it do so at their grave peril. The
message is communicated to all by means which will be
clear to all. In the matter of employer resistance to
employee rights, actions do indeed speak louder than
words.
Once we depart the realm of action, as we must in
this case, and enter the world of speech divorced from
action, our decisions under Gissel appear at first blush
to be so diverse that no rules can be discerned. But
there are reasons which, at least in part, justify that
diversity. Where an employer discharges union adher-
ents, or increases employee benefits, no sentient em-
ployee in the unit can doubt what occurred or the depth
and strength of the employer's oppostion to the union.
These characteristics are in sharp contrast to the char-
acteristics of statements and threats, divorced from ac-
tion, such as those presented here. Threats attributed
to company officials may or may not have been uttered;
they may or may not have been uttered in the fashion
described by one employee to another; and they may or
may not be communicated, even where uttered, beyond
the initial audience. Most important, even where
threats are uttered, accurately repeated, and widely
disseminated the threats may be disbelieved and thus
fail to influence employee action. In short, we can be
sure that employees will hear the same words differ-
ently, and react to them with far greater diversity than
they will react to the occurence of a demonstrable
event.
This distinction between action and speech requires
that in each case where a Gissel remedy is sought exclu-
sively on the basis of threats," we must attempt to
answer three specific, but closely related, questions:
1. What actions were threatened?
2. Were the threats under all circumstances, likely to
be seriously regarded?
3. How widely were the threats disseminated among
the employee group?
In this case, my colleagues and I agree substantially
with respect to the answers to the first two questions
and the significance which attaches to those answers. It
is the third point upon which we disagree and it is upon
that disagreement that my dissent is based.
1. What actions were threatened: My colleagues have
accurately stated that the threats made in this case
involved a threat of loss of employment for some or all
unit employees and, for that reason, are of the gravest
consequence. The threat of plant closing has long been
recognized as a uniquely destructive tool. Threats of
stricter work rules enforced by discharge, though less
serious, may nonetheless be beyond the reach of stand-
ard remedies depending on the milieu in which they
occur.
I believe that the threat of plant closure must be
regarded, for Gissel purposes, as more coercive than
any other threat, and more likely to have a lasting
impact on an employee group. The reasons seem quite
plain to me. The threat of plant closure is the one
serious threat of economic disadvantage which is
wholly beyond the influence of the union or the control
of the employees."
One may draw a sharp contrast in this case between
the threat of closure and the lesser threats of more
stringent enforcement of attendance rules and smoking
restrictions. Employees might have several grounds to
view the latter threats as less serious, but would cer-
tainly have two. First, they would understand that the
threatened discipline could be avoided by their own
adherence to already well known rules. That is, even if
the threatened action were taken, discipline would not
be a certainty as to any employee. Second, and in my
view considerably more important, most employees
will understand-and they will surely be told repeat-
edly by union organizers-the matter of enforcement of
work rules is a subject of bargaining. If the union is
designated as representative, the employees will be able
to use their collective strength to resist changed en-
forcement measures, and they will know it.
A threat of plant closure is different. The employees
will understand that their own actions or inactions will
not influence their continued employment. I think it
safe to assume, as well, that most employees under-
stand that union representation is no safe-guard against
plant closure."
2. Were the threats likely to be seriously regarded.-
This question requires us to grapple with the most
elusive concept in the Gissel construct. In attempting
to answer this question we must rely as much on our
common sense and generalized experience in labor rela-
tions as upon the decisions of the Board and courts.
There are, however, several considerations which will
ordinarily enlighten our deliberations.
a. Source of the threats: A threat of discipline, dis-
charge, or plant closure delivered, as in this case, by the
shop owner or plant manager will ordinarily be more
credible than the same threat by a low level supervisor
who is known to lack the authority to effect his threat.
b. Deliberateness of the threats. Coercive statements
in campaign literature or to purposely summoned em-
ployees or groups will ordinarily be more seriously re-
garded than similar statements arising during an infor-
" 1 believe these general principles are equally applicable to the analysis
of other 8(a)(1) violations such as coercive interrogation and promises of
benefit, as well as to the analysis of assertedly "isolated" 8(a) (3) conduct.
" The Sinclair Co., 164 NLRB 261, enfd. 397 F.2d 157 (C.A. 1), affd.
sub nom N.L.R.B. v. Gissel Packing Co., supra.
" Textile Workers Union ofAmerica v. Darlington Manufacturing Co.,
380 U.S. 263.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mal discussion or in the casual give-and-take of the
shop floor or beer parlor.
c. Generality of the threats: A threat of specific action
or discipline is likely to be more seriously regarded than
a generalized threat of unidentified harm or disadvan-
tage.
I conclude from the facts of this case that the threats
which were made were likely to be seriously regarded
by the employees. They were made by the general
manager who was known to have the authority to effect
the actions threatened. Although the force of the
threats might be somewhat mitigated by the fact that
they came during discussions with individual em-
ployees, that factor is, in my judgment, overborn by the
fact that each of the threats was quite specific in the
nature of the action threatened.
3. Were the threats disseminated: The record is silent
on whether the single threat of plant closure, made to
one employee who resigned shortly thereafter, was ever
communicated to any other employee. Nor does the
record show that the lesser threats were ever repeated
by the employees to whom -addressed. On that state of
the record, I am unwilling to hold that the General
Counsel discharged the burden of showing that the
threats affected the employee group. I am unwilling to
engage in the presumption of my colleagues, and put
the Respondent to the impossible burden of showing
the absence of dissemination. In evidentiary terms, it
makes no sense whatever to permit the only witness
who heard a threat to testify that the threat was made
but to remain silent on the question whether he dis-
closed the threat to any other employee. A chain of
dissemination is a relatively easy matter to establish
through testimony of employees who participated in
the transmission. But nondissemination is virtually im-
possible to prove except by the denial of most or all of
the employees in the affected group. I suggest that my
colleagues, under the guise of an evidentiary presump-
tion, have erected in fact a rule of law that dissemina-
tion of every threat will be conclusively presumed.
In summary, I do not doubt that the statements by
Respondent could have affected the election atmos-
phere, interfered with the free exercise of employee
choice, and prevented the conduct of a fair rerun elec-
tion. In my view, however, there is not sufficient show-
ing that that occurred. I would deny the requested
order to bargain, and I respectfully dissent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees about
statements given to agents of the National Labor
Relations Board.
WE WILL NOT threaten to enforce a no-smok-
ing rule if a majority of our employees selects In-
ternational Union of District 50, United Mine
Workers of America, or any other labor organiza-
tion , to represent them.
WE WILL NOT threaten to impose a tardiness
rule, or threaten employees with discharge
through the implementation of this rule, if a
majority of our employees selects International
Union of District 50, United Mine Workers of
America, or any other labor organization, to
represent them.
WE WILL NOT threaten to refuse to make loans
to our employees if a majority of our employees
selects International Union of District 50, United
Mine Workers of America, or any other labor or-
ganization , to represent them.
WE WILL NOT threaten to cease providing our
employees with coffeebreaks (or free coffeebreaks)
if a majority of our employees selects International
Union of District 50, United Mine Workers of
America, or any other labor organization, to
represent them.
WE WILL NOT threaten w close the plant if a
majority of our employees selects International
Union of District 50, United Mine Workers of
America, or any other labor organization, to
represent them.
WE WILL NOT threaten employees with layoffs
if work is scarce, contrary to our established prac-
tice of avoiding layoffs, if a majority of our em-
ployees selects International Union of District 50,
United Mine Workers of America, or any other
labor organization, to represent them.
WE WILL NOT refuse to bargain collectively
with International Union of District 50, United
Mine Workers of America, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization, to
form, join , or assist any labor organization, to bar-
gain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
GENERAL STENCILS, INC.
from any and all such activities , except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive representa-
tive of all our employees in the bargaining unit
described below with respect to rates of pay,
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
of General Stencils, Inc., employed at its
plant, exclusive of guards, watchmen , and all
supervisors as defined in Section 2(11) of the
Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members
1115
of the above-named Union or any other labor or-
ganization.
GENERAL STENCILS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 16 Court Street , Fourth Floor, Brooklyn, New
York 11201, Telephone 212-596-3535.