Ludwig Motor Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1976

222 N.L.R.B. 635 (N.L.R.B. 1976)

LUDWIG MOTOR CORP. 635
Ludwig Motor Corp . and International Industrial Pro-
duction Employees Union. Cases 29-CA-3717,
29-CA-3746-2, 29-CA-4084, and 29-RC-2549
January 30, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
posted a flyer on the bulletin boards in the ware-
house on February 20, the day before the election.'
The flyer contained an excerpt from the Sixth
Circuit's, decision, in Automation and Measurement
Division, The Bendix Corporation v. N. L. R. B.4 Printed
in bold typeface above and below the excerpt Re-
spondent stated: -
IF THE UNION TELLS YOU THAT WHAT YOU HAVE NOW
IS GUARANTEED , IT IS NOT TELLING YOU THE TRUTHI
. AS THE COURT SAID, THE TRUTH IS THAT YOU CAN
LOSE WAGES AND BENEFITS IN COLLECTIVE BARGAIN-
ING
On May 15, 1975, Administrative Law Judge Ber-
nard J. Seff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the findings of the Administrative
Law Judge? except his finding that Respondent vio-
lated Section 8(a)(1) of the Act by the statement of
its president during a preelection speech that the bar-
gaining process starts with a blank sheet of paper and
could result in the loss of benefits then enjoyed by
the employees.
During the course of its campaign, the Union
made several partisan statements to the employees
including claims that: (1) Respondent had done
nothing for its employees in the past; (2) employees
could not lose existing benefits through collective
bargaining and such benefits were guaranteed; (3)
employees "can only gain, you only get better
things" from collective bargaining; and (4) with the
Union they "will have fatter paychecks . . . guaran-
teed raises," free medical, dental, and eye care and
free-life and health insurance. In its communications
with Respondent during this period, the Union as-
sumed an aggressive posture. It expressed its position
with statements to President Bohn such as "You
don't like our Union: You are darn right not to like
us. This Union will cost you more money in the form
of wage increases and fringe benefits."
In response to these statements, President Bohn
i Member Penello with Chairman Murphy dissenting in part and Member
Jenkins dissenting in part.
2 Chairman Murphy does not agree that the Respondent violated Sec.
8(a)(I) by certain statements by Bohn as set forth in her separate opinion
attached hereto
On the same day, but more than 24 hours before the
election, President Bohn delivered a speech to the
employees which covered a wide range of subjects
including a detailed comparison of present benefits
with those allegedly provided by the Union's insur-
ance and benefit plans. President Bohn testified that
he stated, inter alia: (1) "all your present and/or fu-
ture benefits are negotiable . . . the negotiation is
going to start with a blank piece of paper and each
present wage or each present benefit will be negotiat-
ed. . . . There is nothing automatic. . . ." and (2)
"negotiations is nothing else but very simple horse
trading, it gets down to: I want this, what will you
give me instead? And ' since the Union themselves
have nothing to trade away, obviously the present
and/or future benefits may be discussed and may be
traded in order to get a union shop or check-off
clause." President Bohn testified that throughout the
speech he stressed his intention that, "if negotiations
should start , that Ludwig Motors obviously would
bargain in good faith, would bargain within the
frame of the law." I
We find that Respondent's statements, 'made in re-
sponse to exaggerated claims by the Union, consti-
tuted nothing more than an accurate description of
one possible consequence of lawful collective bar-
gaining. In light of Respondent's frequent assertions
that it would bargain in good faith and abide by the
law, it is clear that its purpose in discussing a possible
loss of benefits through collective bargaining was to
answer the Union's claims and thereby inform the
employees as to the realities of the collective-bargain-
ing process.6 In many respects, the situation here is
3 The Administrative Law Judge inadvertently referred to this posting as
occurring on January 10, 1974
a 400 F 2d 141 (1968) The excerpt reads, "The United States Government
and the N L R B do not guarantee employees that the collective bargaining
process starts from 'where you presently are in wage's, insurance, pensions,
profit sharing and all other conditions of employment "' '
5 Respondent also stressed its intention to bargain in good faith in the
many flyers which it distributed during the preelection period.
6 Respondent 's employees were also informed of management 's intention
to continue to provide for their economic welfare whether or not it had to
bargain with a union As evidence of this, one of Respondent's flyers reads-
Continued
222 NLRB No. 36
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analogous to that presented in The Singer Company.?
In that case a plant manager stated to employees,
inter alia, "bargaining would not necessarily mean in-
creases in benefits since good negotiators often start
at `zero' and go on from there... ." 8 The Board
found that the employer's statement was not a threat
in violation of Section 8(a)(1) of the Act.
As in The Singer Company, supra, we find that
President Bohn's statements as to the possible results
of lawful, good-faith collective bargaining were in-
tended to inform the employees of the economic real-
ities of the collective-bargaining process and carried
no implication that any benefit would be taken away
unilaterally .9 We find that these statements constitute
protected speech under Section 8(c) of the Act. Ac-
cordingly, we shall dismiss that portion of the com-
plaint which alleges that they were violative of Sec-
tion 8(a)(1).10
On the other hand we agree with the Administra-
tive Law Judge that Bohn impliedly threatened the
employees with a reprisal for voting the Union in
when he spoke of the possibility of the plant moving
or closing." Contrary to Chairman Murphy's analy-
sis, Bohn's references to the possibility of a move
were not confined to speculations about the
Company's reaction to "outrageous demands" by the
Union. While at one point in his speech he coupled
the "prediction" of a possible move with the Union's
demands being too high, he also said the following,
according to his own testimony:
Of course I told them if you vote for the Union
that is certainly up to you, it is your decision
and you got to make the decision yourself. If
you make the decision to vote for the Union,
Dana [the parent company] and Ludwig, then
we will have to make their decision and will
have to decide what to do depending on the de-
velopments, and Dana is a big company and has
various operations and warehouses in the U.S.
In the context of the entire speech, the reference to
the Company's having to "decide what to do" would
naturally have conveyed to the employees the idea of
a move or a closing. This "prediction" was not made
with reference to union demands, but rather to its
victory in the election without more. The fact that
elsewhere in the speech Bohn related the possibility
of a move or closing to anticipated union tactics does
not insulate the quoted remarks from attack. On the
contrary, the quoted remarks make somewhat dubi-
ous the contention that at the point where Bohn
sought to blame future union tactics for projected
company action he was engaging only in an econom-
ic prediction."
We have long recognized that threats of closing or
moving are among those to which employees are
most acutely sensitive. Indeed, as with the fabled
princess and the pea, the possibility of such a reprisal
can be felt by employees even after assurances are
piled upon assurances that an apparent threat was
not intended as such. Nonetheless an unequivocal as-
surance might in some cases be sufficient. Here, no
such assurance was given.13
We have also had occasion to observe that threats
of moving a plant may under certain circumstances
be the most coercive of all, since in the eyes of the
employees an employer which, like Respondent, has
plants at many locations, may be able to relocate the
unionized operation at relatively small sacrifice.14
And we note that the coercive effect of the message,
even if it could be considered in isolation to have
been minimal, would be magnified by coming direct-
ly from the president of the Company in a captive-
audience speech to all the employees on the day be-
fore the election.
As far as money and employee benefits go, I think you know, as we do,
that in order to get the competent people and keep the competent
people it takes to run our business , we are going to have to pay the going
rate in wages and in benefits or we are simply not going to get and keep
the people necessary to run this business . And that is true union or no
union, and will always be true
7 176 NLRB 1089 (1969). See also Computer Peripherals, Inc, 215 NLRB
No. 22 (1975), Stumpf Motor Company, Inc, 208 NLRB 431 (1974), and
Wagner Industrial Products Company, Inc, 170 NLRB 1413 ( 1968).
' 176 NLRB 1096 (1969)
9 Member Jenkins does not agree with this finding as set forth in his
attached separate opinion.
10 The Administrative Law Judge's overruling of Objection 2, which we
have adopted , buttresses our finding herein . Objection 2 reads:
During the speech on Wednesday, February 20, 1974, by Mr Gary
Bohn, he told the people that if the petitioning Union won the election
and he had to deal with said Union, any and all benefits being given to
the employees of Ludwig would be taken away from them
The Administrative Law Judge found that this objection "is not supported
in the record "
11 Chairman Murphy does not agree with this finding as set forth in her
attached separate opinion
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 as modified
below and hereby orders that Respondent, Ludwig
Motor Corp., Melville, New York , its officers , agents,
successors, and assigns, shall take the action set forth
12Cf The Singer Company, Friden Division, 199 NLRB 1195, 1210-12
(1972)
13 It is difficult to understand how Chairman Murphy is able to construe
Bohn's statement that "whatever happens, strike or no strike . . Ludwig
will go on," as a negation of his references to a possible transfer of opera-
tions
14 Automated Business Systems, a Division of Litton Business Systems, Inc,
a Subsidiary of Litton Industries, Inc, 205 NLRB 532, 536 ( 1974), enforce-
ment denied on other grounds 497 F 2d 262 (C A 6, 1974)
LUDWIG MOTOR CORP. 637
in the said recommended Order, as so modified:
1. Delete the words "and also saying that the bar-
gaining starts with a blank piece of paper and could
result in the loss of employee benefits" from para-
graph 1(a).
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
February 21, 1974, in Case 29-RC-2549 be, and it
hereby is, set aside, and that said case is hereby re-
manded to the Regional Director for Region 29 to
conduct a new election at such time as he deems that
the circumstances will permit the free choice of a
bargaining representative.
[Direction of Second Election omitted from publi-
cation.]15
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with the findings of my colleagues except
their finding that Respondent violated Section
8(a)(1) and interfered with the election through the
preelection statements of President Bohn that Re-
spondent might be forced to close or move its ware-
house if the Union made outrageous demands. In my
judgment, these statements constitute protected
speech under Section 8(c) of the Act particularly in
light of Respondent's serious financial condition. Ac-
cordingly, I would dismiss the complaint in its entire-
ty and certify the results of the election.
Respondent, a wholly owned subsidiary of the
Dana Corporation, operates one of Dana's 50 plants.
It is engaged in the warehousing and wholesale distri-
bution of replacement parts of foreign automobiles.
On June 1, 1973, Respondent acquired the assets of
Echlin Manufacturing Company and began opera-
tions at Echlin's Melville, New York, plant. Accord-
ing to the record, Echlin had been losing approxi-
mately $50,000 a month or $600,000' a year in the
operation of this facility. However, in spite of the
takeover by Respondent, losses continued.
Respondent's last quarterly report reflects that as of
February' 28, 1974, its losses from operation of the
Melville plant amounted to $54,000.
Early in January 1974 the International Industrial
Production Employees Union began an organiza-
tional campaign at Respondent's Melville facility.
The Union's campaign was marked by exaggeration
and vituperation. Flyers were distributed to employ-
ees which stated that Respondent had done nothing
for them in the past. Extravagant claims were made
as to what the Union would get for employees, such
as guaranteed raises, free medical, dental, and eye
care, and free life and medical insurance coverage.
15 [Excelsior fn omitted from publication.]
Employees were told that Respondent was "trying to
intimidate" them and was "instilling fear into your
minds that if you make a human error it will be your
last!" Alluding to the German ancestry of
Respondent's president, Gerhard Bohn, some flyers
intimated that he was tainted with Hitlerism. One
flyer, addressed "Heil Gerhard," stated, inter alia,
"YOU DON'T LIKE OUR UNION: You are darned right not
to like us. This Union will cost you more money in
the form of wage increases and fringe benefits. How
will your big boss, Dana, like that bitter pill."
On February 20, 1974, the day before the election,
President Bohn delivered a speech to the employees
in which he attempted to answer many of the claims
and accusations of the Union. Bohn testified that he
said, inter alia, "that if Ludwig is losing money, the
way Echlin lost money, $50,000 per month, $600,000
per year, there would be no way that Ludwig could
obviously profitably operate on Long Island and if
we cannot profitably operate on Long Island we
would have to do something in order to make a profit
and since we only have two years to go on the lease
we would have to see what we are going to do." Bohn
further testified that he said, "Let's assume that the
Union is demanding from Ludwig something which
they cannot afford. Then of course there is a possibil-
ity if we accept those demands Ludwig then go broke
[sic], it is a possibility it could go out of business or it
becomes [sic] non-competitive."
The Union lost the election conducted on Febru-
ary 21 by a vote of 29-21. Three of nine challenged
ballots were sustained by the Regional Director,
leaving the remaining challenged ballots not determi-
native of the election. Objections to the election were
timely filed by the Union and were consolidated for
hearing with the complaint in the unfair labor prac-
tice case. The complaint alleges, inter alia, that Presi-
dent Bohn's remarks concerning the possibility of
being forced to move, or relocate the Melville plant in
the event Respondent was faced with unreasonable
Union demands were violative of Section 8(a)(1).
Objection 1 alleges that by such remarks Respondent
interfered with the election. The Administrative Law
Judge found, and my, colleagues agree, that such con-
duct was violative of the Act and requires the setting
aside of the election and the direction of a new one.
I disagree.
The Board has recently ruled that under, circum-
stances more aggravated than those present herein,
an alleged threat to close a plant was not violative of
the Act. In Mt. Ida Footwear Company, A Division of
Munro Company, Inc.,I6 agents of the employer told
assembled employees: "I could mention a lot of
things about unions which might show you why sign-
217 NLRB No. 165 (1975).
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing their cards could be fatal to Mt. Ida Footwear."
The Board found this and similar statements to be
permissible campaign propaganda and held:
The statements,- in the context in which they
were made, merely expressed Respondent's posi-
tion that the employees would be better served
in terms of benefits by rejecting the Union and
that the employees should therefore not sign any
cards. The use of the word "fatal" was a refer-
ence to the possibility that unionization could
lead to difficulties if the Union were to strike to
obtain unreasonable demands. That the use of
"fatal" did not threaten plant closure is further
evidenced by Munro's statement in a later
speech, "We are here to stay." The Board re-
cently found a similar statement to be permissi-
ble campaign propaganda of the type which has
become commonplace in our elections." [Citing
Airporter Inn Hotel, 215 NLRB No. 156 (1974).]
In the instant case, Respondent's employees were
not likely to misinterpret Respondent's remarks as
threats of reprisal for supporting the Union. Presi-
dent Bohn informed Respondent's employees of the
financial difficulties which caused Respondent's pre-
decessor, Echlin, to close, and told them that further
losses due to unreasonable demands by a union
could have the same effect on Respondent. Thus my
conclusion must be considered in light of the plant's
financial history under Echlin's management and
Respondent's recent -quarterly report which revealed
a $54,000 loss. In addition, it is difficult to see how
the employees could have been restrained or coerced
by such observations in view of President Bohn's fur-
ther statement during the February 20 speech that,
"whatever happens strike or no strike . . . Ludwig
will go on." In Mt. Ida Footwear, supra, the employer
also stated in a speech, "We are here to stay," and
this was likewise relied upon by the Board as evi-
dence that the employer had not threatened the clos-
ing of its plant.18
12 Id.
18 In my judgment , the majority misinterprets President Bohn's testimo-
ny that the Company would have to "decide what to do" as relating solely
to what would happen if the employees voted for the Union The majority
fails to take into account that Bohn referred to making a decision "depend-
ing on the developments " In light of Bohn's subsequent statements con-
cerning the economic realities facing Respondent , it is clear that Bohn was
saying (1) if the employees voted for the Union, and (2) depending on the
developments , i e. whether the Union made outrageous demands in the pro-
cess of bargaining, Ludwig would have to decide what steps, if any, would
be necessary in order to remain economically viable
Furthermore , when viewed in context the remark is noncoercive I mmedi-
ately before he made the statement in question , Bohn told the employees,
"Dana and Ludwig won't do what is not right for you and all involved "
Clearly this was not a threat to close the plant, but rather was a commitment
to act for the common good . Bohn's subsequent statement that in spite of a
strike "Ludwig will go on" also emphasizes the noncoercive nature of the
speech If Bohn had said, "Dana [the parent company] will go on ," then it
In a case almost identical to this one, The May
Department Stores Company d/b/a The M. O'Neil
Company," the employer's,president responded in a
preelection speech -to the union's derogatory cam-
paign literature which personally attacked him and
derided his implementation of plans to revive an eco-
nomically failing store by saying:
I am a builder. I work with people. If the people
will not work with me I cannot build. It is the
only way I know how. I cannot work with bick-
ering, dissension , division, hostility. Everything
I try to do sabotaged-people sticking knives in
my back. If I can't work at the difficult job of
turning this downtown store around, I just have
to abandon it. I have to work in the branches. I
have to work with people who are interested in
seeing us get ahead rather than working with
people who are trying to destroy. You have to
tell me how you feel. This is your life.... 20
The Board dismissed the 8(a)(1) allegation based on
these remarks and held:
In our view, the disputed part of Emma's
speech did not constitute a threat to close the
store before allowing the employees to bargain
collectively, but, rather, was a reaction -to, and
an emotional protest against, the Union's 'per-
sonal attack on himself and on his implementa-
tion of plans to revive the store, and could rea-
sonably be understood as such by the
employees.21
In other cases, the Board has consistently held that
statements such as those made by President Bohn are
protected by Section 8(c) of the Act. In Birdsall Con-
struction Company,22 the employer's vice president
told the employees, "I predict that if we have to oper-
ate under a union contract which adds considerably
to our expenses, then we are certainly, as busi-
nessmen, going to have to consider very strongly the
necessity of moving our operations so as to reduce
our costs." The Board, finding this and similar state-
ments by the employer's officials to be protected by
Section 8(c), held:
Respondent's speeches amount to nothing
more than an objective statement of the finan-
cial problems which it would face in the event of
might be argued that Bohn was suggesting the transfer of Ludwig's opera-
tion to another facility in Dana's organization However, Bohn specifically
told the employees at the Ludwig plant that their plant would remain in
business Since I find Bohn's statement , "Ludwig will go on," to be an
unequivocal assurance that the plant would not be transferred or closed, it
follows that Respondent did not violate the Act through a threat of plant
closure
19211 NLRB 150 (1974)
20 Id
21 Id
22 198 NLRB 163 (1972)
LUDWIG MOTOR CORP. 639
unionization, followed by a prediction that such
problems could make relocation in the Miami
area an economic necessity.
On these facts, we view Respondent's
speeches not as containing unlawful threats of
retaliation in the event,, the employees selected
the union to represent them, but rather as a re-
cital of Respondent's belief regarding the de-
monstrable economic consequences beyond its
control which could flow from unionization23
Similarly, in LeBoe Tire and Rubber Company,
d/b/a Mission Tire & Rubber Company,24 the Board
dismissed an 8(a)(1) allegation'and overruled an ob-
jection relating to' an alleged threatened plant clos-
ing. The Board held:
We disagree with the Administrative Law
Judge's finding that Respondent violated Sec.
8(a)(1) of the Act through Supervisor Lee's May
5 statement to the effect that Respondent nei-
ther would be competitive nor able to remain in
business in the event the Union "came in" and
made the same demands on Respondent as are
contained in that Union 's contracts with others.
In our view , that statement is merely an expres-
sion of opinion reasonably based on known eco-
nomic facts which is protected by Sec. 8(c) of
the Act25
Upon facts similar to those in the instant case, the
Board in B. F. Goodrich Footwear Company 26 found
that allegedly coercive statements made by a supervi-
sor to a job applicant to the effect that "some of the
people in the company were trying to get the union
in, and that if the Union were voted into the compa-
ny, that the company would very likely . . . have to
close down because they couldn't afford a union be-
cause the first thing that they would want is higher
wages," were not violative of the Act. The Board
held:
On cross-examination, Honeycutt admitted
that during the interview Hardy discussed the
footwear industry with him, mentioning that the
industry was very competitive and that the Re-
spondent had not made a profit in several years.
It is thus apparent that the remarks of Hardy set
out above were made in a context of a discussion of
the economics of the footwear industry and
Respondent's poor economic performance. It is not
23 Id
24 208 NLRB 84 (1974)
25 Id. at 84
26 201 NLRB 353 (1973).
contended that Hardy's statement about the
competitive nature of the footwear industry or
about Respondent's financial losses were inac-
curate. Nor did Hardy say that if the employees
selected the Union the plant would inevitably close.
The point of his discussion with Honeycutt was
that, in view of its losses, Respondent could not
afford to grant large wage increases and if forced
to do so would, in his opinion, cease operations.,
This was not a.threat but an opinion based on de-
monstrable facts as to the economic consequences
which might reasonably be expected to result from
unionization. As such it was protected by Section
8(c) of the Act. [Emphasis supplied, fns.
omitted.] 27
I find that President Bohn's comments, made in
light of its already weakened economic condition,
were objective, economically realistic statements. In
my judgment, they were based on demonstrable eco-
nomic consequences beyond Respondent's control
which would surely follow the Union's presentation
of unreasonable demands. As such, I find they con-
stitute protected speech under Section 8(c) as inter-
preted by the Board in the cases cited above and
similar cases 28 Accordingly, I would reverse the Ad-
ministrative Law Judge's finding of an 8(a)(1) viola-
tion and overrule correspondent Objection 1, dismiss
the complaint in its entirety, and certify the results of
the election.
MEMBER JENKINS, dissenting in part:
My colleagues find nothing unlawful in Company
President Bohn's repeated warnings to employees
about the potentially deleterious consequences of
collective bargaining. They prefer to construe Bohn's
statements to employees concerning the possible loss
of existing benefits as nothing more than a hardhit-
ting rebuttal of the Union's "exaggerated claims"
aimed only at awakening employees to the supposed
"realities" of the bargaining process. I disagree.
In my judgment my colleagues' analysis is woeful-
ly wide of the mark. In the first place the Union's
"exaggerated claims" are rather typical campaign
propaganda, "puffing" that the Company had suffi-
cient time to respond to and that employees were
clearly capable of evaluating. Bohn's speech, on the
other hand, was delivered the day before the election
and his repeated reminders about the possible loss of
benefits 29 were bracketed by plainly unlawful threats
27 Id at 354.
28 Cf Fiberfil, Division of Dart Industries, 210 NLRB 1086 (1974), Federal
Paper Board Company, Inc, 206 NLRB 681 (1973), J. J Newberry Company,
202 NLRB 420 (1973), Southern Frozen Foods, Inc., 202 NLRB 753 (1973).
29 According to the credited testimony of employees Bohn indicated that
"he wouldn't just sign the contract . he would be started on a clean piece
of paper " Bohn also asserted that "original benefits . . might be lost" and
Continued
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to close or move the facility in the event of a union
victory. When Bohn's February 20 speech is evaluat-
ed, as it should and must be, in the context,30 it is
readily apparent that his frequent references to the
possible loss of existing benefits, particularly when
coupled with his threats to close or move the busi-
ness, were intended to inculcate in employees a sense
of futility and apprehension over the consequences
of unionization and collective bargaining.31
Under these circumstances the nice distinction
that my colleagues seek to draw between what they
characterize as "an accurate description of one possi-
ble consequence" of collective bargaining and an un-
abashed warning of economic reprisal for selecting a
bargaining agent can hardly be expected to hold
muck appeal for employees to whom the loss of jobs
or benefits is a real and personal threat. Accordingly,
I would adopt the Administrative Law Judge's Deci-
sion in its entirety and find a violation of the Act
predicated not only on Respondent's threat to close
or move the business but also on its veiled threat to
withdraw existing benefits.32
Industrial Production Employees Union or any
other labor organization. The bargaining unit is:
All employees including shipping and receiv-
ing, truckdrivers, and lead persons, excluding
office clericals, supervisors, and guards as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of their
own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all
such activities.
You are free to become and remain members of
International Industrial Production Employees
Union or any other labor organization, or to refrain
from becoming or remaining members of any labor
organization.
that employees might come out with less than they originally started be-
cause "nothing is guaranteed , everything starts fresh " Bohn himself admit-
ted warning employees that the Union had nothing to "trade away" only
"present and/or future benefits" in return for a union shop or checkoff
agreement . The Company also distributed and posted a flyer containing an
out-of-context statement found in a Federal court decision and utilized to
underline the Company's persistent theme that employees would jeopardize
existing benefits if they chose union representation
30 See Textron, Inc (Talon Division), 199 NLRB 131 (1972)
31 As one employee testified "I don't know how to explain it, he put a
scare into all of us " Administrative Law Judge's Decision , second par
before sec F.
32 My colleagues' reliance on The Singer Company, 176 NLRB 1089
(1969), is misplaced . There the plant manager's statement that negotiation
"often start at zero and go on from there" was unaccompanied by threats to
close or move the plant, or by repeated warnings that employees would risk
the loss of existing benefits if the union prevailed Moreover, my colleagues
make the error of failing to distinguish between statements that point out
that bargaining does not automatically or necessarily lead to increases in
benefits , and statements which constitute a transparent warning that ex-
isting benefits will be lost
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States, Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found we violated the law and
has ordered us to post this notice.
WE WILL NOT tell you in speeches or letters
that if the Union won we might close or move
the warehouse for the purpose of inducing you
to withdraw your support from the International
LUDWIG MOTOR CORP.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge : On May 23,
1974, charges were filed by International Industrial Pro-
duction Employees Union, herein called the Union. In
Cases 29-CA---37 17' and 29-CA-3746-2, the Regional Di-
rector for Region 29 issued a complaint and notice of
hearing against Ludwig Motor Corporation, herein called
Respondent or the Company, alleging violations of Section
8(a)(1), (3), and (5) of the Act.
Thereafter , on May 30, 1974, Region 29 issued a Report
on Challenged Ballots and Objections in Case
29-RC-2549 , and an order consolidating the above cases
for hearing on the objections to the "R" case.
The initial hearing was opened on July 16, 1974; the
complaint was amended on this date. Hearings were held
on varying dates from July 16, 1974, to January 16, 1975.
Pursuant to further charges and amended charges in Case
29-CA-4084 alleging violations of Section 8(a)(1), (3), and
(4), I granted the General Counsel's Motion to Consolidate
all cases on January 14, 1975. The hearing was then heard
on January 15 and 16, 1975, and was closed on the latter
date.
In. sum the charges alleged that Respondent discrimina-
torily discharged a group of 10 part-time employees; en-
gaged in interrogation of certain employees; subsequently
it was alleged that Respondent discharged an employee,
Anna Micele , because of her activities on behalf of the
Union and because she gave testimony at an NLRB hear-
ing. Respondent admitted it was engaged in commerce and
that the Union was a labor organization but denied the
LUDWIG MOTOR CORP. 641
commission of any unfair labor practices.
All parties were represented at the hearing and were ac-
corded full opportunity to be heard, to introduce relevant
evidence, to present oral agrument, and to file briefs. Briefs
were filed and Respondent's brief was filed, after an exten-
sion, on March 10, 1975. Upon consideration of the entire
record, the briefs and observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The business of the Respondent consists of the ware-
housing and wholesale distribution of replacement parts
for foreign automobiles. During the past year Respondent
purchased and had delivered to its place of business in
Melville, Long Island, New York, automotive parts and
other materials valued in excess of $50,000 directly from
States of the United States, other than New York. I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. I so find.
Background
Ludwig is a wholly owned subsidiary of the Dana Cor-
poration. Dana conducts a nationwide operation and has
50 plants of which Ludwig is one.
The record shows that Respondent acquired the assets
of Echlin Manufacturing Company and began operating
this plant at Melville, Long Island, on June 1, 1973. Ac-
cording to the undisputed testimony of President Gerhard
Bohn, Echlin, the predecessor company, lost approximate-
ly $50,000 a month or $600,000 a year in the operation of
this facility.
The Union commenced its organizing campaign early in
January 1974. By January 16 or 18, at which time there
were approximately 65 employees in the bargaining unit 2
of which the General Counsel said the Union had 38
signed authorization cards. The Union's secretary-treasur-
er, Lawrence Litman, made an oral (January 16) and tele-
graphic demand (January 18) for recognition. He was told
to process his claim for representation through the NLRB.
He filed a petition in Case 29-RC-2549. An election was
held on February 21, 1974. The vote was 29 against the
Union and 21 for it. There were nine challenged ballots.
Three of the challenges were sustained thus leaving the
result against the Union stand since the remaining ballots
could not affect the results of the election. Objections to
1 Respondent made an unopposed motion to correct the transcript The
motion is granted
2 The appropriate unit consists of All employees, including shipping and
receiving, truckdrivers, and lead persons of Respondent, exclusive of office
clericals, guards, and all supervisors as defined in the Act
the election were timely filed by the Union which will be
discussed infra in this decision.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Part-time Employees
There were 10 part-time employees who were dis-
charged:
Robert DiRusso January 22, 1974
Robert Kilduff January 22, 1974
Michael LoMonaco January 22, 1974
Kevin Donovan January 22, 1974
Frances Donnelly February 1, 1974
Pauline Maurio February 1, 1974
Susan Brzeski February 1, 1974
Jean Adams February 1, 1974
Nicoletta Cuozzo February 1, 1974
Mary Stillitano February 1, 1974
The Company explained its problems with part-time em-
ployees. Initially, when Bohn first took over the operation
in June 1973, not only did he find that the predecessor
company, Echlin, left the facility badly manned but the
labor market in Long Island was at this time tight and it
was impossible to secure adequate full-time employees.
The then warehouse manager, Bud Squazzo, no longer em-
ployed, suggested that the work of the warehouse could be
expedited if the Respondent hired permanent part-time
employees. In order to secure this type of help Squazzo
told applicants for jobs that they would have flexible
hours. Such employees worked from about 9 a.m. to about
1:30 p.m. The Company had been experiencing great diffi-
culty getting its orders "turned around" and shipped. The
problem was not helped by the part-timers. Delay in ship-
ments caused many customer complaints. The hiring of
part-timers did not help the problem of getting the orders
out on time. Starting sometime in November 1973, Bohn
met with Warehouse Manager Charles Crifasi and an ex-
pediter, Moe Mulqueen, who later, on December 19, be-
came comanager of the warehouse, to discuss some solu-
tion to this problem. At this time it was suggested that the
part-timers be let go since they had not worked out. They
only worked from about 9 a.m. until about 1:30 or 2 p.m.
and oftentimes left their work incompleted. This required
the full-time employees to drop what they were doing to
complete the work started by the part-timers. It was also
impossible to schedule the work of these employees be-
cause they only worked short shifts, on fluctuating hours
and therefore could not be relied on to complete their jobs.
This caused bottlenecks in the Company's operations.
With the advice of Crifasi and Mulqueen, Bohn decided
to eliminate the part-timers and replace them with full-time
employees. Other similar discussions took place in Decem-
ber at which point Bohn decided to let these employees go.
In December 1973 the job market on Long Island in the
Melville area eased so that it became less difficult to secure
full-time employees than had been the case in September
and October 1973.
Other similar discussions took place about the backlog
problem and the role played in that connection by the utili-
zation of part-time help. In mid-December 1973, it was
determined that part-time positions would be eliminated. It
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was further decided that the present part-timers would be
offered full-time employment with full wages and partici-
pation in the benefit programs available to full-time work-
ers. If the part-time employees' were either unable or un-
willing to accept full-time work their jobs would be
eliminated . Crifasi suggested that this decision be held in
abeyance until after Respondent's Christmas party and the
Christmas and New Year's holidays were over. Bohn
agreed. However, by the week of January 21, 1974, Bohn
was in the warehouse where he noticed that some part-time
employees were still employed. Bohn took a firm stand,
said there had been too much stalling on effectuating the
decision made in December, and insisted that his decision
be implemented now that the holiday season was over. At
this point Crifasi proceeded to talk to two high school stu-
dents who were working on a part-time basis.
Crifasi spoke to LoMonaco and Donovan and told them
that although he realized both had student status and
would not be able to accept full-time jobs, at Bohn's in-
structions they were offered such positions. He also noti-
fied them that they would not be able to continue to work
for the Company on a part-time basis. Donovan said he
might be able to work an additional hour but that he could
not accept a full-time job because of his school obligations.
LoMonaco said he was involved in a school athletic pro-
gram and intended to quit his job anyway. Consequently,
both LoMonaco and Donovan were let go on January 22,
1974. Students Kilduff and DiRusso were similarly told of
Respondent's decision to eliminate part-time employees
and they too were terminated.
On January 23 Crifasi spoke to part-time employees Stil-
litano and Sanfilippo. Sanfilippo said she would be inter-
ested in accepting full-time work. Stillitano stated she
would not work full time. On the same day Mulqueen
spoke to the part-time women workers in the labeling sec-
tion of the warehouse. He told Susan Brzeski, Nicoletta
Cuozzo, Pauline Maurio, Jean Adams, and Frances Don-
nelly that part-time jobs were being eliminated and invited
them to accept full-time work with full pay and all the
benefits the regular employees received. Three of the part-
timers, Adams, Donnelly, and Brzeski, said they would ac-
cept full-time work. Cuozzo and Mauno said they were not
interested in full-time jobs.
Later that day Mulqueen was told that the three women
who at first had accepted full-time jobs wanted additional
time to discuss the matter with their husbands. Mulqueen,
with Bohn's approval, agreed to extend the time for mak-
ing this decision to Friday, January 25. On Friday, Don-
nelly told Mulqueen that if this was the last day for the
girls to make a decision they wanted their paychecks. One
of the girls said she thought it was not fair for them to be
dismissed without a week's notice prior to termination.
Bohn was contacted by Crifasi and agreed to further ex-
tend the time for making a final decision another week-
until February 1. Thereafter, Sanfilippo was reemployed as
a full-timer on February 12; Adams was reemployed on
February 19; thus both Brzeski and Adams were reem-
ployed prior to the NLRB election which took place on
February 21. Finally, another part-timer, Donnelly, ap-
plied for and was given full-time employment on February
27.
Respondent's brief points out, "Since early December
1973, when serious consideration was given to the elimina-
tion of part-time jobs, Respondent has not hired any per-
sons in a part-time capacity."
Mulqueen testified that he requested Bohn's permission
to retain one part-time employee, Dominick Guido, on the
payroll. He explained that while he was working as an ex-
pediter he had trained Guido to assist him in special work
known as profiling.3 After he was promoted to comanager
of the warehouse, Mulqueen had little time to continue this
work which had previously taken him one-half of each
workday. Guido was the only employee; either part or full
time, qualified to perform this special task. Bohn agreed
that Guido could be retained until the project was complet-
ed but he would then have to accept full-time employment
or be terminated. It should be noted that another part-
timer, Kilduff, testified that he had performed the same
general work as Guido. Kilduff's testimony was contra-
dicted by his pretrial affidavit in which he had stated that
Guido was "sort of in charge" of the upstairs section where
the profiling work was done. The General Counsel points
out that the record shows that Guido was one of the few
employees who had not signed a union authorization card
and had stated to a fellow employee that he did not want
to be involved with the Union. Additionally, there is no
evidence that Respondent knew whether Guido was for or
against the Union or whether he had signed- a union card.
It is significant to note that nowhere in the record is
there evidence that any of the part-timers were known to
the Company to be active or interested in the Union. It is
true that the Company's timing of the discharge of the
part-time employees is suspicious since it took place at a
time when the Union's organizational efforts were at a high
level. On balance and absent proof of Respondent's knowl-
edge of union activities by a preponderance of credible
evidence, I credit Respondent's explanation for the termi-
nation of the part-timers as being due to business reasons.
I find that, based on the record, none of the part-timers
had engaged in any union activities apart from signing
union cards which was not proven to have been known to
Respondent. Furthermore, four of the dischargees request-
ed and were rehired by Respondent. If the Company had
intended to rid itself of known union adherents it is diffi-
cult to explain why it so readily rehired four of these em-
ployees and offered reemployment to all of them if they
would have agreed to work full time.
B. The Discharge of Anna Micele
The General Counsel states in his brief that Micele was
"clearly the chief witness for General Counsel and gave the
most damaging testimony concerning Respondent of any
of the witnesses." She was in fact more than one of the
chief union adherents. She was the witness whose testimo-
3 Profiling is the process involving the allocation of bins or shelves for
stocking the automotive parts distributed by Respondent This process re-
quires the determination of the bin or shelf capacity of the warehouse,
familiarity with customer demand for each automotive part, knowledge of
the physical size of the part, and a knowledge of the shelf and bin sizes in
which parts will be stored Also involved was the compilation of multiple
part numbers and uniform numbers for each part
LUDWIG MOTOR CORP. 643
ny forms the groundwork for the entire case.
Micele was first employed on August 29, 1973, and she
was discharged October 23, 1974. According to Micele, on
the date of her discharge she was pushing boxes full of
automotive parts down the conveyor belt. She was pushing
slowly because the belts were not working by electricity.
She claims she was 25 or 30 feet from Mulqueen and "he
hollered over to me and told me that I was fired but I just
... kept pushing and he said to me if you don't get the
hell out of here I will have you thrown the hell out of here,
so I really knew he screamed that I was really fired." She
admitted she never asked Mulqueen why she was fired. It
should be remarked that Micele impressed me as an ag-
gressive and belligerent person.
Mulqueen's version of the facts that precipitated her dis-
charge bore no resemblance to the story told by Micele. If
he in fact hollered or screamed at her it seems strange that
no one else heard his allegedly loud voice. Mulqueen testi-
fied that Micele was hired as a packer who worked in the
packing area. He said he had occasions to talk to Micele
about wandering around the warehouse when she was sup-
posed to be working.
Mulqueen testified on direct examination:
Q. What did you tell Micele at that time?
A. Well, I told her to stop floating around the ware-
house and try to stay in her own area.
Q. What did she say?
A. Well, "if you don't like my work, give me a pink
slip. "
Q. What did you say?
A. I said, "I'll be the judge of that. Just go back to
your area and keep busy."
I was outside. Anna- was standing between the con-
veyor belts. I says, "Anna there's no work there,
there's nothing on the conveyor belts to be packed or
stuffed would you.go inside and give someone a hand
picking orders."
And Anna says, "If I don't will I get a pink slip"
I said, "Just go inside and help someone picking an
order."
She said, "If I don't will I get a pink slip?"
I said, "Yes you will."
She said, "Well give me your pink slip."
I said, "You got it, you're fired."
Q. What did she say at that point?
A. She didn't say anything.
In the context of the above quotes from the record it is a
reasonable inference that she did not say anything because
she knew why she had been fired. She had three times
refused to obey instructions. She had a chip on her shoul-
der and was insubordinate and provocative. She in effect
dared Mulqueen to fire her. He obliged.
Micele's story does not hold water. It is impossible to
believe that Mulqueen, out of thin air and totally without
provocation, would scream at her that she was fired.
C. Credibility of Micele,
The record is replete with instances of evasive and con-
tradictory statements made by Micele.
The complaint in Case 29-CA-4084 alleges that Micele
was discharged because she gave testimony before the
NLRB and because of her concerted activities. The allega-
tions aver that she was discharged in violation of Section
8(a)(4), (3), and (1). The evidence concerns her testimony
and that of Supervisors Mulqueen and Crifasi. Micele testi-
fied that she had some conversations with Mulqueen and
Crifasi a few weeks after she gave testimony at the end of
July 1974, as follows:
Q. Could you tell us what happened?
A. I was talking to Charlie (Crifasi).
Q. Would you tell us what Charlie said to you?
A. He asked me, "were you down at the hearing."
I said "yes," he said "did you mention my name"
and then Moe Mulqueen came over and said you were
down at the hearing . . . I was down at the hearing
before the National Labor Relations Board.
I told the truth, exactly the way the truth was told to
me and Moe Mulqueen said to me, first Charlie says
that yes, I was supposed to go down, he says, I had
gotten a subpena to go down.
He said, but I did not go down because those subpe-
nas were not legal, yours was not legal because they
were not signed by a Judge, they were signed by an
attorney.
He said you did not have to go.
Q. Who said that?
A. Charlie and Moe said you should have kept your
mouth shut.
Q. What did Charlie say?
A. He asked if I mentioned his name. I said I did.
He asked me if I mentioned Larry Paul's name (a su-
pervisor) and I said yes I did.
Q. What else did he say, Charlie?
A. He said I should have kept my mouth shut.
Q. Anything else?
A. As I told you, he told me and Charlie that about
subpenas, that we got was not signed by the Judge,
they were signed by an attorney.
Q. What did Mulqueen say?
A. Mr. Mulqueen told me, also that I should keep
my mouth shut and he says all you people that went
down to the Board are going to go out that door, one
by one but instead we went out three's, two's and
one's.
And he said for coming down here and testifying to
the Board, that we're going to be out one by one, out
the door and I went out the door.
It should be noted that these alleged threats were made
in July and Micele was discharged October 23, 1974. While
it is true that the time lapse between July and the end of
October might be explained on the basis that the Company
was biding its time so as not to create suspicion this seems
to be unlikely in the instant case. Micele was discharged
for rank insubordination having nothing to do with having
given testimony. The alleged threats and the act of dis-
charge were very remote in point of time. At the very least
it must be said that the General Counsel did not sustain his
burden of proof and I find that Micele was discharged for
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause. Furthermore both Mulqueen and Crifasi testified
credibly and flatly denied having threatened Micele be-
cause she gave testimony before the Board.
Micele's testimony was interwoven with inconsistent
statements. She said she was given a 6-month merit in-
crease 2 weeks before it was due to buy her allegiance away
from the Union. The Respondent's records, which were
offered as an exhibit at the hearing, show that she in fact
received this increase 3 weeks later than would normally
have been the case because the Company changed its
method of making merit increases.
When faced with inaccurate and inconsistent testimony
she said her memory is poor. There are frequent statements
by her "that I can't remember; I had the virus very bad,
I'm not myself; I don't remember dates because I've been
very sick and I have high fevers and did quite a bit to my
head recently."
She iterated and reiterated during her testimony state-
ments like: I am telling you the truth; I said I told you the
truth which I did; As my oath of God; I will take the oath
on the Bible; I could have said it because it was the truth;
it is the truth; it is the truth, maybe I did say it; it is true.
Her frequent protestations of the truth of her statements
sounded hollow and were reminiscent of Shakespeare's
quote from Hamlet: "The lady doth protest too much
methinks."
As a further example of untrue statements which are
threaded through her testimony, other witnesses also called
by the General Counsel as his witnesses flatly contradict
what she said. Specifically Micele testified that she had
given authorization cards to certain warehouse employees,
including Irma Menusan, Joanne Becker, and Ruth Sanfi-
lippo. Respondent's brief calls attention to the fact that
Micele consistently maintained that she did not encourage
or suggest that employees should sign these cards. She
sought to minimize her role in securing employee signa-
tures and returning them to the Union. Menusan testified
she had been given a card by Micele who told her that
almost everyone had signed the card at the warehouse and
that she would be a fool not to sign. Micele testified that
she knows Menusan and that Menusan had asked for a
card. When asked if she told her that almost everybody
else had signed, Micele replied, "I certainly did not." She
continued with the statement that she "didn't say anything
to Menusan."
Becker testified on behalf of the General Counsel. She
said Micele gave her a card and told her " ... it was for
the Union and it's better if I join so I won't get in trouble."
When Micele was asked if she told Becker that she should
sign a card so that she wouldn't get in trouble, she replied
"No, I did not." Sanfilippo also testified for the General
Counsel and said " . . . a woman named Ann" gave her a
card and said, the Union was trying to get in, would I be
interested and I said "Yes," I thought I would be, and she
explained about the nice union building and the dental
plan and I signed the card. Micele was asked if she gave a
card to Sanfilippo and she said "Yes." She was then asked
if she had any conversation about the card. She replied, "I
did not." Q. "Didn't you say anything to her?" A. "No."
The three women who testified spoke forthrightly without
hesitation and I credit their statements . While Micele
might have forgotten one or two statements from the above
three witnesses the fact that she could not remember any-
thing about the three conversations brands Micele as an
unreliable witness. It should be further noted that the rec-
ord shows that there is no corroboration of Micele's testi-
mony.
Insofar as General Counsel places his major reliance in
support of the 8(a)(1) allegations in the complaint on the
testimony of Micele I conclude that his reliance on her
testimony is misplaced. She is an incredible witness and I
find it impossible to credit her testimony. I recommend
that all allegations in the complaint dependent on Micele's
testimony be dismissed.
D. Other 8(a)(1) Incident
There is an additional allegation in the complaint that
Respondent , by Supervisor Larry Paul, interrogated Joseph
Collins as to whether he signed a union card . This interro-
gation is alleged as a violation of Section 8(a)(1) of the Act.
In the absence of other credibly proven instances of inter-
rogation the Collins incident appears to be insignificant
standing alone and does not warrant the issuance of a
remedial order. Arguably even if it is true I find it repre-
sents an isolated instance and should be dismissed.
E. Bohn 's Speeches to the Employees
In the course of its campaign the Union issued a large
number of flyers, some of which intimated that Bohn is
tainted with Hitlerism by addressing him as Herr Gerhard
Bohn, Heil Gerhard, etc. These references to his German
heritage angered Bohn. The Union also made extravagant
claims of what they would "get" the employees like a dollar
an hour increase in wages, free dental exams and treat-
ment, free eye exams and glasses , and many other improve-
ments in vacations, holidays, insurance and severance pay.
It is not the policy of the Board to police electioneering
propaganda leaving the evaluation of such material to the
good sense of a company's employees.
However some of these numerous belittling bulletins
contained language to the effect that Respondent did not
give satisfactory benefits to its employees. In addition to
the above types of "free" services which would be extended
to employees who joined the Union, emphasis was placed
on the medical services provided in the health center and
clinic maintained for the benefit of union members.
In order to counter certain of the Union's extravagant
claims Bohn called a meeting in the facility on January 10
in which he read off to the employees a listing of the bene-
fits then being given to the workers. Bohn for his part post-
ed on the bulletin boards in the warehouse a sentence torn
from context in the language of Bendix Corp. v. N.L.R.B.,
400 F.2d 141 (C.A. 6, 1968), wherein it is stated, "The U.S.
government and the NLRB do not guarantee employees
that the collective bargaining process starts from where
you are in wages, insurance, pensions and all other condi-
tions of employment." From this quotation Respondent is-
sued its own flyer wherein, in bold caps, it is stated, "As
the court said, the truth is that you can lose wages and
benefits in collective bargaining." This is true but Respon-
LUDWIG MOTOR CORP. 645
dent drew from it a theme that emphasized the loss em-
ployees could-incur in present benefits that is recurrent in
its major speech.
Bohn met with his attorneys and Robert Arquette, a la-
bor relations official from the parent company, Dana, and
rehearsed carefully permissible language in a 24-hour
speech he delivered to all his employees on February 20,
one day before the NLRB election of February 21. I am
satisified that Bohn did not violate the 24-hour rule. He
began his speech a few minutes after 9 am. and it was
completed about 9:40 a.m.
In the course of many rambling remarks he stated ideas,
which in compendium, covered some of the following
points: Bohn told the employees that they could lose bene-
fits if the Union were elected; if the employees decide on a
union Dana and Ludwig will have a decision to make and
then significantly added that Dana is a big corporation and
has operations all over-the United States; the Company has
a 2-year lease on its present property; after the expiration
of the 2 years the Company might move or close if the
Union's demands are too high; bargaining begins with a
blank piece of paper and all demands, including present
benefits, are up for negotiation. It seems clear that the im-
pression was implanted in the minds of the employees that
if the Union won the election the Company might move or
close its plant. Elsewhere in both the speech and in letters
sent to all its employees Bohn said if the Union won, the
Company would bargain hard, but in good faith. Fur-
ther, that one of the union flyers stated it had a completed
contract drafted for the Respondent to sign. Bonn's reac-
tion was that no one would force Dana or Ludwig to sign
a readymade contract or agree to outrageous demands of
the kind set forth in the Union's literature. Every item
would be bargained toughly and the Company would not
agree to a prepared contract-no way; that while he would
bargain in good faith he would not be kicked around.
The fact that Bohn juxtaposed the statement that neither
he, Ludwig, nor Dana would be kicked around; that Dana
had many warehouses (approximately 50); this could hard-
ly be expected to be understood in any other way except
that Ludwig could be closed down or moved to another of
Dana warehouses if the Union came in. Coupled with this
thinly veiled threat is the material suggesting that bargain-
ing could result in even loss of the present benefits.
Respondent's witness, Elaine Dawes, gave a significant
answer to one of the question put to her by Respondent:
Q. Did he say anything about the possibility of los-
ing benefits if the Union won?
A. He did talk about that we could wind up losing
them because he said you start bargaining . . . and so,
you know nothing is guaranteed, everything starts
fresh, you know.
At another point in the speech employee Sanfilippo testi-
fied:
A. He said that if the Union came in, the contract
would be started, he wouldn't just sign a contract .. .
he would be started on a clean piece of paper.
He said that everything that went into the contract
would be negotiated. He said there is a chance of the
original benefits that we already have, they might be
lost.
. he said that everything that went into-the con-
tract would be negotiated and he would bargain in
good faith for the people and try to, you know keep
everything for us. But there is a chance of us coming
out with less than we originally started with.
The General Counsel in his brief points out that "the
mere statement that the Union's demands might cause the
Company to close is not sufficient to establish that its im-
plication was based upon `demonstrably probable conse-
quences' beyond the Employer's control." The speech con-
tained no cost comparisons which might provide a factual
basis for proving the plant would be forced to close if the
Union represented the employees.
As the Board stated, "Typically such threats are sought
to be masked in the language of prediction, but this does
not alter their character as coercive pronouncements in-
tended as here to restrain employees in the free exercise of
rights to organize and bargain. "5 .
Similarly Bohn's admitted remarks about the possibility
of closing the facility should the Union's demands be too
high should also be considered unlawful. In N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969) the stan-
dards for evaluating an employer's prediction of the possi-
ble effects of unionization are measured as follows:
[The employer] may ... make a prediction'as to the
precise effect he believes unionization will have on his
company. In such case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably prob-
able consequences beyond his control or to convey a
management decision already arrived at to 'close the
plant in case of unionization.... If there is any im-
plication that an employer may or may not take action
solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the
statement is no longer a reasonable prediction based
on available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the court below that "[c]onveyance of the
employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not
a statement of fact unless, which is most improbable,
the eventuality of closing is capable of proof."
The employees who listened to Bohn's speech were not
people schooled in the niceties of legal phraseology but
were unsophisticated workers. This fact is clearly docu-
mented by the testimony of employee Becker who was so
nervous and scared that she could hardly speak.- However
her only recollection of what Bohn said was that if the
Union came in, he'd close the doors. On cross-examination
she said: "I don't know how to explain it, he put a scare
into all of us."
In sum, Bohn's speech contained some truths mixed in
4 Mohawk Bedding Company, 204 NLRB 277 (1973).
5 Emerson Electric Co, 177 NLRB 75 (1969)
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with other statements the effect of which was to communi-
cate to the employees that they might lose benefits in the
course of good-faith but hard bargaining and union de-
mands could force the Company-to either move to another
of Dana's many installations or go out of business. The
frequent allusions to loss of benefits and either moving or
closing the business in its totality were thinly veiled threats.
Taken overall I find and conclude that Respondent violat-
ed Section 8(a)(1) of the Act by his speech of February 20,
1974.
F. Challenged Ballots and Objections to the Election
The election took place on February 21, 1974. The vote
was 29 against the Union and 21 for it. There were nine
challenged ballots. The ballots of Al Malazzi, Neal Ger-
skon, and Chris Martinez were challenged because their
names did not appear on the voter eligibility list. The Re-
gional Office conducted an investigation on May 30, 1974,
as the result of which these challenges were sustained since
the three employees in question began their employment
on January 29 and the eligibility date was for the payroll
period ended January 26. The Regional Office concluded
that the remaining six challenged ballots would not be de-
terminative of the election. I sustain these challenges.
The Union timely filed seven objections of which the
Region dismissed Objections 3 and 4. Objections 5 and 6
allege that the 10 part-time employees were discriminatori-
ly discharged. I have found that these allegations are with-
out merit. I dismissed said allegations having found that
this group of employees were discharged for business rea-
sons. I overrule these objections.
Objection 7 deals with averments made by employee
Anna Micele. I dismissed the unfair labor practices con-
cerning Micele having found that she is an incredible wit-
ness and not worthy of credence. I also dismissed Objec-
tion 2 having found that it is not supported in the record.
However, as is explained supra I found that President
Bohn's speech of February 20 was violative of Section
8(a)(1) since his threats to close or move the plant and his
oblique statements that if the Union won the employees
could lose their present benefits were illegal. I sustain this
objection and recommend that the election of February 21,
1974, be set aside. I recommend further that a new rerun
election take place at a time deemed appropriate by the
Regional Director.
Having reached this conclusion it appears unnecessary
to deal with the issue of the authenticity and propriety of
the solicitation of union authorization cards. The best test
of the majority status of the Union will be determined by
the results of the rerun election I have recommended.
H. The Wage Increase of May 4, 1974
According to the testimony of Robert Arquette, Dana's
industrial relations administrator, a meeting was held at
the main office of the Dana Corporation in Toledo, Ohio.
Present at this meeting from Ludwig were Bohn and Mul-
queen; attorney Hancock and Tneshmann, Arquette and
Joseph Shirra, who is the labor relations manager of the
industrial relations staff. The purpose of the meeting was
to discuss a general wage increase applicable to all ware-
houses operated by Dana. At that time the industrial rela-
tions staff was making wage surveys of all its plants. The
purpose of these inquiries was to determine whether the
work force was being properly paid in view of the infla-
tionary pressures then being felt throughout American in-
dustry.
Arquette explained-that some of the Company's plants
had existing union contracts. For example one plant in the
Chicago area had a 3-year contract with the UAW which
by its terms did not require a wage increase at that time.
However it was felt that the employees were underpaid for
the area and a wage increase was granted to these employ-
ees.
Dana took into consideration the area wages paid, by
competitors of Ludwig. A further consideration was the
fact that the employee turnover was very bad at Ludwig. In
order to meet these problems Dana decided to grant a gen-
eral wage increase of 40 cents per hour, effective May 4,
1974.
In the course of this discussion the fact that Ludwig was
then involved in NLRB proceedings came up. A business
decision was made that unless Ludwig's workers were giv-
en the same increase Dana had decided to grant to all its
other employees, Ludwig would be below its competitors'
wages for the area and Respondent would be unable to
hire and retain competent help. This decision was ground-
ed on sound economic reasons and is not at variance with
the Board's position in similar situations. It should also be
pointed out that this increase took place almost 4 months
after the election took place.
G. The Question of the Issuance of a Bargaining Order
Without minimizing the seriousness of my finding that
the president of the Company made a veiled threat to close
or move the plant if the Union made outrageous demands,
the problem still remains whether this 8(a)(1) violation ne-
cessitates the issuance of a bargaining order. Stated in an-
other way , has the Company committed outrageous and
pervasive unfair labor practices sufficient to warrant an
order to bargain within the meaning of the Gissel case? I
think not . In my opinion the use of a traditional Board
notice posted for 60 days would clear the air sufficiently so
that a fair rerun election could be held at a time deemed
appropriate by the Regional Director.
Concluding Findings
Assuming arguendo that the Union had a sufficient num-
ber of valid authorization cards to establish its majority
status when the demand for recognition was made on Jan-
uary 16, 1974, the Gissel case, 395 U.S. 575, contains an
important caveat.
Even though the Union had been validly designated
by a majority of Respondent's employees,
Respondent's refusal to recognize and bargain with it,
without more, is insufficient basis for recommending
an order that Respondent recognize and bargain with
the Union. In order to justify such an order it must be
LUDWIG MOTOR CORP. 647
shown that Respondent engaged in unfair labor prac-
tices marked by "outrageous" and "pervasive" unfair
labor practices sufficiently serious that the possibility
of erasing such practices and insuring a fair election
by the use of traditional remedies though present is
slight.
In a recent case, Lasco Industries, Inc., 217 NLRB No. 1
(1975), the Board held "that all the unfair labor practices
committed herein, even when considered in their totality,
are not of such magnitude as to warrant the issuance of a
bargaining order under the guidelines set forth by the Su-
preme Court in Gissel Packing Co." As has been set forth in
detail, supra, such is not the case in the instant matter.
Accordingly, I have recommended the use of traditional
remedies and further that a second election take place at a
time deemed appropriate by the Regional Director.
The record shows that Bohn's remarks to his employees
that they might lose their present benefits, that if the Union
won the bargaining would start with a blank piece of pa-
per, and his reiteration of the possible loss of present bene-
fits were calculated to impress upon them the likelihood of
the loss of these benefits. Taken in the context in which
they were uttered I find such statements to be a threat to
take away such benefits and, as such, violative of Section
8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed herein have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. This includes, for the
reasons set forth above, a recommendation that Respon-
dent cease communicating to its employees, by speeches or
otherwise threatening, directly or indirectly, to close or
move its warehouse or to take away benefits presently
being accorded its employees. I shall further recommend
that a second election take place after the traditional post-
ing of notices to its employees assuring them of the protec-
tion of the Act.
CONCLUSIONS OF LAW
1. Ludwig Motor Corp. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Industrial Production Employees
Union is a labor- organization within the meaning of Sec-
tiooi.2(5) of the Act.
3. All employees including shipping and receiving,
truckdrivers and lead persons excluding office clericals, su-
pervisors and guards as defined in the Act constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Respondent's president, in the course of a preelection
speech, said that if the Union won he might close or move
the warehouse; he also said that the bargaining process
starts with a blank piece of paper and could result in the
loss of benefits then enjoyed by the employees. By so doing
Respondent engaged and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. The refusal of Respondent to recognize and bargain
with the Union on the basis of authorization cards did not
constitute a violation of Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER6
Ludwig Motor Corp., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Respondent's president saying that if the Union
won he might close or move the warehouse; and also say-
ing that the bargaining starts with a blank piece of paper
and could result in the loss of employee benefits.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist the
above-named labor organization, or any other labor orga-
nization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection as guaranteed by Section 7 of the Act or to
refrain from any or all such activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its Melville, Long Island, New York, facility
copies of the attached notice marked "Appendix." 7 Copies
of the notice on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
6 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.
7 In the event that the Board's Oider is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized representative, shall be posted by Respondent spondent to ensure that said notices are not altered, de-
immediately upon receipt thereof and be maintained by it faced, or covered by any other material.
for 60 consecutive days thereafter, in conspicuous places, (b) Notify the Regional Director for Region 29, in writ-
including all places where notices to employees are cus- ing, within 20 days from the date of this Order, what steps
tomarily posted. Reasonable steps shall be taken by Re- Respondent has taken to comply herewith.