National Micronetics, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1985

277 N.L.R.B. 993 (N.L.R.B. 1985)

NATIONAL MICRONETICS
National Micronetics , Inc. and International Union
of Electrical, Radio and Machine Workers,
AAFL-CIO. Cases 3-CA-10123 and 3-RC-7892
9 December 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 31 August 1981 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief. '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three.-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings, findings,' and
conclusions2 as modified and to adopt the recom.
mended Order as modified. Contrary to the judge,
we find that the Respondent did not violate Sec-
tion 8(a)(1) of the Act or engage in objectionable
conduct when it asked employees to give the em-
ployer another chance or when it distributed copies
of a Board decision to employees.3
1. The judge found that on two occasions the
Respondent made illegal promises of benefits, by
asking employees to give it another chance. The
judge found in section III,A,(1) of the decision that
Supervisor Sturrock summoned employee VanWa..
genen to the office a few days before the election
to discuss the Union and problems at the Company.
During this conversation, Sturrock asked VanWa-
genen what it was he did not like about the Com-
pany. Sturrock told VanWagenen the Respondent
was a small Company, it was still growing, and
The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In addition, the Respondent contends that the judge's rulings , credibil-
ity resolutions, and factual findings are the result of bias. After carefully
examining the entire record, we are satisfied that this allegation is with-
out merit. There is no basis for finding that bias and partiality existed
merely because the judge resolved important factual conflicts in favor of
the General Counsel's witnesses . As the Supreme Court stated in NLRB
v. Pittsburgh Steamship Co., 337 U S 656, 659 (1949), "[T]otal rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact."
2 In his discussion of the Respondent 's overly broad no-solicitation rule
at sec. III,A,(s), the judge cited T.R.W. Bearings, 257 NLRB 442 (1981)
We do not rely on T.R W. Bearings in finding that this rule was overly
broad; rather, we rely on Our Way, inc., 268 NLRB 394 (1983), overrul-
ing T.R. W. Bearings.
3 We shall modify the judge's recommended Order to follow and
remedy more accurately the actual violations found , as well as to reflect
these reversals, and shall issue a new notice to employees
993
there was "a lot to look forward to." Sturrock said
he was aware that the Respondent had neglected
to keep up with other companies in the past and
asked VanWagenen to give them a second chance
to see if they could make things better.
The judge also found in section III,A,(x) of the
decision that Vice President Robinson held a meet-
ing of employees in his office soon after the repre-
sentation petition was filed to ask employees not to
support the Union. During this meeting, Robinson
told employees he was new in his position, he was
really a decent individual, and they should give
him some time. The judge concluded that by
asking the employees to give the Respondent more
time or a second chance the Respondent meant
they should vote against the Union and let the Re-
spondent improve benefits and working conditions
without collective bargaining. Therefore, he found
these statements illegal and objectionable promises
of benefits. We disagree.
We find that both of these statements are too
vague to rise to the level of illegal promises of ben-
efits or objectionable conduct. The statements do
not promise that anything in particular will happen.
Instead , the Respondent indicated a general desire
to make things better. Generalized expressions of
this type, asking for "another chance" or "more
time," have been held to be within the limits of
permissible campaign propaganda.4 Therefore, we
dismiss the allegations that the statements were un-
lawful promises in violation of Section 8(a)(1) of
the Act, and we overrule the objection based on
these statements.5
2. The judge found that the Respondent made
objectionable threats of reprisals against employees
if they selected the Union as their bargaining repre-
sentative, by distributing copies of the Board deci-
sion in Oxford Pickles.6 The judge found in section
III,A,(q) that the Respondent distributed to all em-
ployees photocopies of this decision as reported at
77 LRRM 1049, with a handwritten statement at
the top saying: "HERE'S THE FACTS from the
NATIONAL LABOR RELATIONS BOARD-
THEY ARE NEUTRAL. THIS IS THE LAW-
READ IT." The LRRM headnotes had been un-
derlined and characterized as follows:
4 See Allied/Egry Business Systems, 169 NLRB 514, 517 (1968), where
the Board found that saying the employer and the employees had a very
bright future and asking the employees to give the plant manager a
chance to prove they did not need an outsider to speak for them were
merely vague suggestions that did not support a finding the employer had
made unlawful promises to its employees.
5 We affirm the judge's finding that Supervisor Sturrock unlawfully in-
terrogated employee VanWagenen in the same conversation by asking
why he favored the Union.
6 190 NLRB 109 (1971) The complaint also alleged this conduct was
unlawful
277 NLRB No. 95
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FACT # 1 - LMRA does not require that
employer accede to all union demands or, after
bargaining, retain all current benefits; ... .
FACT #2 - . . . in fact employer may per-
manently replace economic strikers and presence
of union does not prohibit an employer from
moving its plant should eco-
FACT #3 - nomic conditions dictate; ... .
FACT #4 - . . . that all union promises of
improved benefits are not attainable without prior
employer assent; ... .
The text of the decision had been bracketed, under-
lined, and characterized as follows:
TRUE - With regard to the answer to the
questions, there is no requirement in the Act
that an employer accede to all union demands
or, after bargaining, retain all current benefits.
Nor does the presence of a union prohibit an em-
ployer from moving its plant should economic
conditions so dictate. Similarly, an employer
may permanently replace economic
TRUE - strikers. . . . all union promises of
improved benefits are not attainable without prior
Employer assent.
The judge concluded that by distributing this deci-
sion to all employees with certain portions high-
lighted, the Respondent made objectionable threats
of reprisals, particularly noting that the Respond-
ent's action took place during an election campaign
marred by numerous 8(a)(1) violations and objec-
tionable conduct of a similar nature. The judge
cited Glassmaster Plastics Co.,7 where the Board
found that disseminating the Board decision in
Oxford Pickles was objectionable conduct, but dis-
tinguished CBS Records Division,8 where the Board
found that reading excerpts from the Oxford Pickles
decision to employees was lawful.
Contrary to the judge, we find CBS Records Di-
vision persuasive,9 and we overrule Glassmaster
Plastics Co. to the extent it is inconsistent with this
decision. The highlighted portions, of the LRRM
report are accurate statements of the law,1 ° and
7 203 NLRB 944 (1973).
8 223 NLRB 709, 717 at fn 18 (1976).
S The judge also cited CBS Records Division in sec III ,A,(f) of the de-
cision, where he found an illegal interrogation. Although we agree with
the judge's finding that the interrogation was coercive under the circum-
stances of this case, we do not rely on the rationale in CBS Records Divi-
sion to support our finding
10 An employer is not required to agree to any of the union's proposals
during collective bargaining , see H K. Porter Co v. NLRB, 397 U.S 99
(1970), does not have to retain all current benefits after bargaining, see
NLRB v. Katz, 369 U.S 736, 745 (1962); is not prevented from moving its
plant for economic reasons by the presence of a union, see Textile Work-
ers V. Darlington Mfg. Co., 380 U.S. 263, 269-273 (1965), and may perma-
nently replace economic strikers, see NLRB v Mackay Radio & Telegraph
Co., 304 U.S 333 (1938) Further, a union must obtain the employer's
assent to gain improved benefits, see H. K Porter Co v NLRB, supra
the Respondent had a right to disseminate such in-
formation," especially when the Union had mis-
stated the law on these points during the election
campaign. The Respondent distributed the Board
decision merely to rebut the Union's misrepresenta-
tions.12 We find that distributing accurate copies of
a 'Board decision with portions highlighted and
characterized as "true" can in no way be construed
as an illegal threat or as objectionable conduct.
Therefore, we dismiss the allegation that the Re-
spondent violated Section 8(a)(1) of the Act and
overrule the objection regarding distribution of the
Oxford Pickles decision.
3. The judge found that on three occasions
during the week before the election the Respond-
ent made illegal threats to close the plant and relo-
cate its operations to California. The judge found
in section III,A,(ee) of the decision that one day,
about a week before the election, President Buoy-
master gave speeches to large groups of employees
at all of the Respondent's three Kingston plants,
where he asked the employees to vote against the
Union in the election the next week. During these
speeches, Buoymaster told the employees he had a
great affection for the Kingston area, but two of
the Respondent's Kingston plants were losing
money, the Respondent was working hard to cut
these losses, and a union would not help this effort.
He said the Respondent had plants in California
and a plant in Mexico where the labor rate was
about $1.30 an hour, he -had an obligation to the
stockholders to operate the plants profitably and, if
anything made them economically uncompetitive,
he had the right to relocate them. Finally, he stated
that the Respondent's California competitors
bought their parts from the Japanese, that the Re-
spondent could have saved $100,000 by doing the
same thing instead of using the parts made at the
Kingston plants, but that it did not want to do so.
The judge found in section III,A,(k) of the deci-
sion that Supervisor Hocker had a conversation
about the union organizing campaign with employ-
ee Tortorella later that same day, while Hocker
was handing out antiunion literature. During this
l i An employer may tell its employees that all of their existing benefits
are negotiable and that certain benefits might be reduced or eliminated
through collective bargaining, see Computer Peripherals, 215 NLRB 293
(1974), and Stumpf Motor Co, 208 NLRB 431 (1974); may tell its employ-
ees that with a union economic conditions could force work to be
moved, see Southern Frozen Foods, 202 NLRB 753, 754-755 (1973), enfd.
501 F.2d 868 (D.C Car 1974); and may tell its employees that economic
strikers can be permanently replaced, see Eagle Comtronics, 263 NLRB
515 (1982), and Care Inn, Collierville, 202 NLRB 1065 (1973), enfd 496
F 2d 862 (6th Cir. 1974).
i z During the campaign the Union told employees that the Respondent
could not relocate its plant if the Union won the election, that striking
employees could not be replaced, and that employees could not lose ben-
efits in collective bargaining
NATIONAL MICRONETICS 995
conversation, Hocker told Tortorella that in his
opinion President Buoyrnaster would not hesitate
to shut the plant and move it to California if the
Union got in and the plant was no longer competi-
tive in the Kingston area. Hocker explained that
the plant was competing with the Japanese and
might not be profitable with a union.
The judge also found in section III,A,(n) that
,Operations Manager LaLonde summoned employ-
ee Friedlander to the office the day before the
election to discuss the Company's financial situa-
tion. During this conversation, LaLonde told
Friedlander that if the Union came into the plant it
would adversely affect the profitability of the oper-
ation and that he could move the floppy line in a
week.
The judge concluded that by equating unioniza-
tion with unprofitability and unprofitability with
plant relocation, the Respondent made illegal
threats to close the plants and relocate if the Union
won the election. He noted that these statements
were not predictions based on objective facts as to
probable consequences beyond the Respondent's
control, which would be lawful under NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969), but
rather were calculated threats uttered in the con-
text of numerous other more explicit threats of a
similar nature.
We agree with the judge's conclusion that these
statements were illegal threats, but only for the fol-
lowing reasons. As we stated above, an employer
may lawfully tell its employees that changed eco-
nomic conditions due to unionization could cause it
to move elsewhere. Thus, where an employer
points out specific effects of unionization that
might cause it to become unprofitable, such as
higher wages or production losses during strikes, it
may properly raise the possibility that a loss of jobs
could result from unionization.13 In this case, how-
ever, the Respondent did not point to any objec-
tive facts that would be likely to change as a result
of unionization and cause it to become unprofit-
able. Instead, the Respondent merely noted that its
Kingston plants were already uncompetitive, when
compared to its plants in California and Mexico
and to its Japanese suppliers, and stated that it
could easily relocate these unprofitable plants if the
Union won the election. Furthermore, the Re-
sporldent made these statements at the end of a
long antiunion election campaign during which five
of its highest management officials had repeatedly
made explicit threats to close the Kingston plants
and relocate the work in California if the Union
won the election. Therefore, we find that the Re-
13 See Tri-Cast, Inc, 274 NLRB 377 (1985).
spondent's statements were not merely permissible
predictions of the possible effects of unionization,
but rather were illegal threats that the Respondent
intended to close the Kingston plants if the em-
ployees elected a union. We agree with the judge
that the Respondent violated Section 8(a)(1) of the
Act and engaged in objectionable conduct when it
made these statements.
4. Finally, the judge found that the Respondent
made illegal misstatements about an employee's
right to reinstatement after a strike under Laid-
law.14 The judge found in section III,A,(x) of the
decision that Vice President Robinson held several
meetings with employees about a week before the
election, where he asked the employees to vote
against the Union in the election. In these meetings,
Robinson told employees that during a strike every
employee could and would be permanently re-
placed, that he had 400 job applications on file
from people who were ready to take their jobs,
that he could hire people off the street to replace
strikers, and that he could make permanent jobs for
those employees. When an employee objected to
Robinson's statements, noting that employees could
be permanently replaced only during economic
strikes and that any strike against the Respondent
would not be an economic strike, Robinson contra-
dicted him by stating that employees could be per-
manently replaced in any strike. The judge con-
cluded that these statements implied that a striking
employee would lose his job without any chance of
returning to work and thus misrepresented an em-
ployee's reinstatement rights under Laidlaw. There-
fore, he found that the Respondent made illegal
threats of reprisals for engaging in protected activi-
ty.
Although we agree with the judge's conclusion
that these statements were illegal threats, we do
not rely on the cases he cited in support of this
conclusion. In Eagle Comtronics,15 the Board held
that an employer may lawfully tell employees they
are subject to permanent replacement during an
economic strike without fully detailing a striker's
reinstatement rights under Laidlaw, so long as the
employer does not threaten that employees who
strike will be deprived of their reinstatement rights
or actually misrepresent a striking employee's Laid-
law rights. In this case, however, the Respondent
did not limit its remarks to economic strikers. In-
stead, it effectively told employees that unfair labor
practice strikers could be permanently replaced. In
Redway Carriers, 274 NLRB 1359 (1985), the Board
14 Laidlaw Corp., 171 NLRB 1366 ( 1968), enfd 414 F 2d 99 (7th Cir.
1969), cert denied 397 U.S. 920 (1970)
is 263 NLRB 515 (1982)
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found similar statements to be unlawful threats.
Therefore, we agree with the judge that the Re-
spondent violated Section 8(a)(1) of the Act and
engaged, in objectionable conduct when it made
these statements.I6
AMENDED CONCLUSION OF LAW
substitute the following for the judge's Conclu-
sion of Law 4.
"4. By the acts and conduct set forth above in
Conclusion of Law 3; by coercively interrogating
employees' about their union sympathies and activi-
ties; by threatening employees with closing or relo-
cating the plant if they should select the Union as
their collective-bargaining representative; by
threatening to discharge employees if they engage
in, or are reported to have engaged in, union ac-
tivities; by threatening not to promote employees if
the Union should become their collective- bargain-
ing representative; by threatening employees with
stricter job classifications and denial of interdepart-
mental transfers if the Union should become their
collective-bargaining representative; by telling em-
ployees that they had forfeited any chance of ad-
vancement by engaging in union activities; by cre-
ating the impression among employees that their
union activities are under its surveillance; by solic-
iting employee grievances during the representation
election campaign for the purpose of adjusting such
grievances ; by impliedly promising employees ben-
efits in order to dissuade them from supporting the
Union; by distributing discount coupons to employ-
ees in such a manner as to create the impression
that it is providing benefits to dissuade them from
supporting the Union; by disparately maintaining a
bulletin board in such a manner that prounion cam-
paign propaganda can be defaced or removed, but
preventing antiunion campaign propaganda from
being defaced or removed; by imposing an overly
broad no-solicitation rule prohibiting employees
from engaging in union activities during their
breaktime; by telling employees that a strike would
be inevitable if the Union won the election; by tell-
ing employees that it would not bargain with the
Union if the Union won the election; by telling em-
ployees that it would discontinue their existing ben-
efits if it had to bargain with the Union; by telling
employees that they could be permanently replaced
in any strike ; and by attempting to pin the blame
for its prospective refusal to make improvements in
wages and benefits on the possible action of the
16 In adopting the judge 's various interrogation findings , Member
Babson does not rely on the ,fudge 's cite to Centre Engineering, Inc., 253
NLRB 419 ( 1980) Also, in adopting the various violations at sec.
III,A ,(x) of the judge's decision , he finds it unnecessary to precisely rely
on all the judge's comments or case citations
Union in filing objections or charges with the
Board , the Respondent violated Section 8(a)(1) of
the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , National Micronetics , Inc., Kingston,
New York, its officers , agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraphs 1(a)
through 1(o).
"1. Cease and desist from
"(a) Coercively interrogating employees about
their union sympathies and activities.
"(b) Threatening employees with closing or relo-
cating the plant if they should select the Union as
their collective -bargaining representative.
"(c) Threatening to discharge employees if they
engage in, or are reported to have engaged in,
union activities.
"(d) Threatening not to promote employees if
the Union should become their collective -bargain-
ing representative.
"(e) Threatening employees with stricter job
classifications and denial of interdepartmental trans-
fers if the Union should become their collective-
bargaining representative.
"(f) Telling employees that they had forfeited
any chance of advancement by engaging in union
activities.
"(g) Creating the impression among employees
that their union activities are under its surveillance.
"(h) Soliciting employee grievances during the
representation election campaign for the purpose of
adjusting such grievances.
"(i) Impliedly promising employees benefits in
order to dissuade them from supporting the Union.
"(j) Distributing discount coupons to employees
in such a manner as to create the impression that it
is providing benefits to dissuade them from sup-
porting the Union.
"(k) Disparately maintaining a bulletin board in
such a manner that prounion campaign propaganda
can be defaced or removed but preventing antiun-
ion campaign propaganda from being defaced or
removed.
"(1) Imposing an overly broad no-solicitation rule
prohibiting employees from engaging in union ac-
tivities during their breaktime.
"(m) Telling employees that a strike would be in-
evitable if the Union won the election.
"(n) Telling employees that it would not bargain
with the Union if the Union won the election.
NATIONAL MICRONETICS
"(o) Telling employees that it would discontinue
their existing benefits if it had to bargain with the
Union.
"(p) Telling employees that they could be per-
manently replaced in any strike.
"(q) Attempting to pin the blame for its prospec-
tive refusal to make improvements in wages and
benefits on the possible action of the Union in
filing objections or charges with the Board.
"(r) Delaying promised pay increases or denying
overtime to employees or otherwise discriminating
against them with regard to their hire or tenure in
order to discourage their support of and activities
on behalf of International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or any
other labor organization.
"(s) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election of 29
and 30 October 1980 among the Respondent Em-
ployer's employees is set aside.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The (`rational Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees
about their union sympathies and activities.
WE WILL NOT threaten employees with closing
or relocating the plant if they should select a union
as their collective-bargaining representative.
WE WILL NOT threaten to discharge employees if
they engage in, or are reported to have engaged in,
union activities.
WE WILL NOT threaten not to promote employ-
ees if a union should become their collective-bar-
gaining representative.
WE WILL NOT threaten employees with stricter
job classifications and denial of interdepartmental
transfers if a union should become their collective-
bargaining representative.
WE WILL NOT threaten employees that they have
forfeited any chance of advancement by engaging
in union activities.
997
WE WILL NOT create the impression among em-
ployees that their union activities are under our
surveillance.
WE WILL NOT solicit employee grievances
during a representation election campaign for the
purpose of adjusting such grievances.
WE WILL NOT impliedly promise employees ben-
efits in order to dissuade them from supporting a
union.
WE WILL NOT distribute discount coupons to em-
ployees in such a manner as to create the impres-
sion that we are providing benefits to dissuade
them from supporting a union.
WE WILL NOT disparately maintain a bulletin
board in such a manner that prounion campaign
propaganda can be defaced or removed but pre-
vent antiunion campaign propaganda from being
defaced or removed.
WE WILL NOT impose an overly broad no-solici-
tation rule prohibiting employees from engaging in
union activities during their breaktime.
WE WILL NOT tell employees that a strike is in-
evitable if a union becomes their collective -bargain-
ing representative.
WE WILL NOT tell employees that we will not
bargain with a union if a union becomes their col-
lective-bargaining representative.
WE WILL NOT tell employees that we will dis-
continue their existing benefits if we have to bar-
gain with a union.
WE WILL NOT tell employees that they will be
permanently replaced in any strike.
WE WILL NOT attempt to pin the blame for our
prospective refusal to make improvements in wages
and benefits on the possible action of a union in
filing objections or charges with the Board.
WE WILL NOT delay promised pay increases or
deny overtime to employees or otherwise discrimi-
nate against them with regard to their hire or
tenure in order to discourage their support of and
activities on behalf of International Union of Elec-
trical, Radio and Machine Workers , AFL-CIO or
any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WILL make William Clark and Ronald Klaw-
son whole for any loss of pay or benefits they have
suffered by reason of our discrimination against
them, with interest.
NATIONAL MICRONETICS, INC.
Thomas J. Sheridan, Esq. and Alfred M. Norek, Esq., for
the General Counsel.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph B. Summa, Esq . and Henry Kelston, Esq., of Hart-
ford, Connecticut , for the Respondent.
Nicholas Lewis, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Albany and
Kingston, New York, and Washington, D.C., upon an
amended complaint,' consolidated with objections to an
election, 2 which was issued against Respondent, National
Micronetics, Inc., by the Acting Regional Director for
Region 3, alleging, that the Respondent violated Section
8(a)(1) and (3) of the Act. More particularly, the amend-
ed complaint alleges tha the Respondent threatened that,
in the event of unionization, it would relocate plant fa-
cilities, move to Mexico or California, replace existing
employees with Mexican employees, purchase parts from
Japan and lay off employees, replace striking employees,
discharge employees, deny promotional opportunities to
employees, impose more onerous working conditions
upon employees, and restrict communication among and
between employees. It further alleges that the Respond-
ent promised employees that, if they rejected unioniza-
tion, it would increase benefits, including the installation
of a pension plan. It also alleges that the Respondent co-
ercively interrogated employees concerning their union
activities; told employees that bargaining would start at
the bottom, would not bargain with a union, and would
force a strike; and that the Respondent instituted in-
creased benefits in the form of consumer discount cou-
i The principal docket entries in Case 3-CA-10123 are as follows.
Charge filed herein by International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO, CLC (the Union or IUE), against the Re-
spondent on November 24, 1980; amended charge filed on December 22,
1980; original complaint issued against the Respondent by the Acting Re-
gional Director for Region 3 on December 22, 1980; the Respondent's
answer filed on December 31, 1980; amended complaint issued against
the Respondent on January 5, 1981, order consolidating case with objec-
tions filed in Case 3-RC-7892 on January 6, 1981; second amendment to
complaint issued on January 30, 1981, third amendment to complaint
issued April 27, 1981; fourth amendment to complaint issued on May 5,
1981, the Respondent's amended answer filed on May 8, 1981, hearing
held in Kingston and Albany, New York, and Washington, D.C, on May
11-13, 19, and 20 and June 12, 1981, briefs filed with me by the General
Counsel and,the Respondent on or before June 27, 1981. The principal
docket entries in the consolidated representation case are as follows: Peti-
tion for election filed by the Union seeking to represent a unit composed
of employees at the Respondent's three plants in Kingston, New York, on
August 29, 1980, Stipulation for Certification Upon Consent approved by
Regional Director on September 11, 1980, for election in a unit of pro-
duction, maintenance, and plant clerical employees at the Respondent's
three Kingston, New York plants, election held on October 29 and 30,
1981, at which the Petitioner received 121 votes, and 197 votes were cast
against the Petitioner; objections to conduct of election filed by the Peti-
tioner on November 6, 1980
2 The Respondent admits, and I find, that it is a New York corporation
which maintains' its principal office in West Hurley, New York, and
plants in West Hurley and Kingston, New York, where it is engaged in
the manufacture and sale of recording heads and other technological
products. In the course and conduct of its business, the Respondent annu-
ally ships directly to points and places outside the State of New York
goods and merchandise valued in excess of $50,000. The Respondent is
an employer within the meaning of Sec 2(2), (6), and (7) of the Act. The
Union is a labor organization within the meaning of Sec. 2(5) of the Act.
pons for the purpose of dissuading employees from sup-
porting the Union. The amended complaint also alleges
that the Respondent rescinded overtime work assigned to
Ronald Klawson and denied to William Clark the full
amount of a promised wage increase because of union-
related considerations. For the most part, these allega-
tions of unlawful activity are identical to timely objec-
tions to the conduct of the elections which the Charging
Party herein filed on November 6, 1980. The Respondent
denies the commission of each and every statutory viola-
tion and act of objectionable conduct alleged herein.
Upon these considerations, the issues herein were
joined.4
FINDINGS OF FACT
I. JURISDICTION
For about 12 years, Respondent has operated a plant
or plants in Kingston, New York, a small town located
near the Hudson River about 50 miles south of Albany.
With the help of local financing and local governmental
inducements, the Respondent established a plant in 1969
and it has grown to three plants plus a corporation head-
quarters. At the so-called Semi-Films plant on Route 28
in West Hurley, the Respondent manufactures microelec-
tronic components which are sold directly to various
customers. In this operation, it employs about 70 hourly
rated employees on three shifts. At the Grand Street fa-
cility in Kingston, one division purchases raw powder
and hot presses it into bricks and blocks. In another part
of the Grand Street plant, the Respondent does glass
bonding of various pieces to form components. In these
operations about 120 hourly rated individuals are em-
ployed. At the Broadway plant, the electronic parts are
wafered, cut, and machined. About 90 hourly rated indi-
viduals are employed at that plant. Most of the output of
the Broadway and Grand Street plants is then trans-
ferred to one of two plants which the Respondent ac-
quired in 1971 from a customer. At these plants, the
components are assembled, tested, and shipped. At these
plants in San Diego, it employs about 400 employees. In
addition, the Respondent operates a plant on a subcon-
tract basis in Tijuana, Mexico, about 40 miles from the
San Diego plants.
The principal operating head of the Respondent com-
pany is Ned Buoymaster, who founded the Company in
New York and was a Kingston resident until about 2
years ago when he transferred his residence to Califor-
nia. Although Buoymaster visits the Kingston plants fre-
quently, the plants operate under the general direction
and control of Thomas Selig, the Respondent's group
vice president for Kingston activities. At no time have
any of the Respondent's employees been represented by
any labor organization.
3 The petition herein was filed on August 29, 1980, and the election
was conducted on October 29 and 30, 1980. Accordingly, any conduct
alleged as a basis for setting aside the election must have taken place
within that tin eframe Goodyear Tire & Rubber Co, 138 NLRB 453
(1962)
4 Certain errors in the transcript are noted and corrected
NATIONAL MICRONETICS
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine
Workers, AFL-CIO (the Union) began an organizing
drive in May 1980, under the supervision of International
Representative- Anthony Corrao. After the Union filed a
representation petition on August 29, the campaign
became heated and ended in a union defeat on October
30. With one or two exceptions, the events detailed here-
inafter occurred during that period of time.
III. THE ALLEGED UNFAIR LABOR PRACTICES
(a) ][ credit the testimony of Maintenance Lead Opera-
tor James Countryman that, early in the campaign,
David LaLonde, his supervisor and now the senior man-
ager at the Broadway plant, came up to Countryman at
the Grand Street plant, where both were then employed,
and told Countryman that the employees were talking
union, Countryman replied that this was the first he had
heard of it. LaLonde stated, "You know we can move
this plant" and then walked away. This statement consti-
tutes a threat of reprisal for union activities in violation
of Section 8(a)(1) of the Act, but does not amount to ob-
jectionable conduct affecting the results of the election
because it occurred before the commencement of the
Goodyear period.
(b) A few weeks later, Countryman and LaLonde had
another conversation about the organizing drive in La-
Londe's office at the Grand Street' plant. During this
conversation, LaLonde told Countryman about his expe-
rience in another plant in Pennsylvania which was union-
ized. He suggested to Countryman that people sometimes
get bombs put in their mailbox and that having a union
was no way to run a business. He also said that it is not a
hard thing to move a plant. This latter statement consti-
tutes a violation of Section 8(a)(1) of the Act but is not
objectionable conduct because it occurred outside the
Goodyear period.
(c) I credit Countryman's testimony that, on the
Monday before the election, he spoke with LaLonde in
the latter's new office at the Broadway plant. The pur-
pose of Countryman's visit was to ask LaLonde for a
raise for an employee named Stephan Burt. LaLonde
told Countryman to come back Thursday "if we're still
there." Countryman, who by then had surfaced as an
active union adherent, told LaLonde that he had not
come to the office to fight with LaLonde. The latter re-
plied, "But we're in a fight."' LaLonde went on to say
that if the vote on Wednesday went "yes," the first thing
the Union would do would be to demand a dues check-
off and close a union shop. He said that the Company
would never agree to those proposals and there would
be a stalemate and a strike. Countryman argued with La-
Londe, saying that he did not think this would happen,
reminding LaLonde that it would be the people in the
plant who would have to vote to go on strike. LaLonde
countered by saying that "When the union man tells you
you're on strike, you're on strike." He insisted that
unionization meant friction in the shop and that it was
simply no way to run a business, it would mean that
Countryman could not come in and talk to him on a one-
on-one basis as they were doing now without a shop
999
steward. LaLonde said he was a compassionate man. He
was not worried about himself, but was concerned for
the people in the plant who would be out of work if a
union came in. He added, "I like California. I like the
weather out there."
LaLonde's statement to Countryman to come back
after the election "if we're still there" and similar re-
marks indicating that the plant would close if the Union
won the election are threats which both violate Section
8(a)(1) and constitute objectionable conduct. The further
statement equating unionization with the inevitability of
strikes is also objectionable conduct and a violation of
the Act. Louis Gallet, Inc., 247 NLRB 63 (1980).
(d) I credit Countryman's testimony that, sometime in
mid-September, he had occasion to speak with Support
Operations Manager Ronald Naccarato at the Broadway
plant. They were near a poster of a woman who was
carrying a "Strike" sign. Countryman observed that he
did not think there was going to be a strike. Naccarato
replied that he did not care whether there was a strike or
not because he would be working in any event. He
added that "We just built a building in California and
this plant would fit in there perfectly." Naccarato's latter
statement is a threat to move the plant in the event of
unionization or a strike and is both a violation of Section
8(a)(1) and objectionable conduct.5
(e) I credit the testimony of Paul Soura that about a
month before the election Machine Shop Supervisor
Rich Tamburro spoke to him at the Grand Street plant
and asked him what percentage of the Grand Street em-
ployees had signed union cards. Soura refused to reply.
This question constitutes coercive interrogation, violates
Section 8(a)(1) of the Act, and is objectionable conduct.
(f) Sometime late in July or early August, Soura had a
conversation with Tamburro in the latter's office. Short-
ly after the conversation began, they were joined by
Naccarato. Naccarato admits asking Soura, who was in
the course of telling Tamburro what was wrong with the
Company and how the Union could right those wrongs,
what the Union could do for him. Soura replied that the
Union could provide increased salary, better benefits,
and more paid holidays. Naccarato replied that the wage
rate at National Micronetics was about par for the area,
since Kingston was a depressed area. Soura then asked
Naccarato why, if the pay was so low, did he leave IBM
and come to work for the Respondent. Naccarato an-
swered that he thought that the Company had potential
growth. I credit Soura's testimony that Naccarato added
that if the Union came in with their high demands for
money the Company could close "just, like that," and
snapped his fingers. He also stated that the presence of a
union would cause tension to exist between supervisors
and union members. Naccarato's questioning of Soura in
these circumstances constitutes coercive interrogation
and his statement concerning the closing of the plant in
the event of unionization constitutes an illegal threat.
CBS Records Division, 223 NLRB 709 (1976). Although
5 Normally a violation of Sec 8 (a)(1) of the Act constitutes objection-
able conduct affecting the results of an election unless the violation is de
minimus Dal-Tex Optical Co, 137 NLRB 1782 ( 1962), Caron Internation-
al, 246 NLRB 1120 (1979).
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these utterances violate Section 8(a)(1) of the Act, they
occurred before August 29 so they do not constitute ob-
jectionable conduct.
(g) Sometime in mid-September, Soura had a conversa-
tion in the machine shop with Production Manager Fred
Pohler, who was making a tour of the Grand Street
plant at the time. I credit Soura's testimony that, in the
course of:the discussion, Pohler asked Soura whether the
latter had any plans for advancement. He said he had
been watching Soura and liked the way he worked. He
also noted that there was a supervisory position open in
the department located across the hallway from the ma-
chine shop and that someone like Soura could fit nicely
into that job. At the time, Soura was wearing a union
button or buttons. Pohler assured Soura that the fact that
he was wearing union buttons had nothing to do with his
statement concerning the supervisory position, but added
that if the Union got in, it would be hard to go from any
hourly rated position to supervisory status. Pohler's
latter comment constitutes a threat in violation of Sec-
tion 8(a)(1) of the Act and also amounts to objectionable
conduct.
(h) Michele Conorman is a janitorial employee at the
Broadway plant and works on the night shift. A few
days before the October 29-30 election, Naccarato spoke
with her at length concerning the Union. I credit her
statement that Naccarato told her on this occasion that
he had no doubt in his mind that if the Union got in, the
plant would move to California and the Company would
purchase the parts for its California operation from
Japan. This statement is a violation of Section 8(a)(1) of
the Act and is also objectionable conduct.
(i) Shortly before the election, Utility Operator Wil-
liam Terwilliger had a brief conversation with Produc-
tion Control Supervisor John Cashara near the produc-
tion control room at the Grand Street plant. In the
course of this discussion, Terwilliger expressed the view
to Cashara that things would function a lot easier at the
Company when the Union gets in. Cashara replied that
Terwilliger should check with Richie Tamburro because
he had worked in another plant which had shut down
because of the Union.6 This statement constitutes a
threat to close the plant in the event of unionization, vio-
lates Section 8(a)(1) of the Act, and is objectionable con-
duct. Centre Engineering, 253 NLRB 419 (1980); General
Dynamics Corp., 250 NLRB 719 (1980).
(j) Machinist Michael Modeen testified, without con-
tradiction, that about a month before the election he had
occasion to speak with his former supervisor Clark An-
gevine in Angevine's office at the Grand Street plant.
The occasion for the conversation was Modeen's period-
ic performance review. In the course of this evaluation,
Angevine asked Modeen how he felt about the Union.
Modeen declined to answer. Under the circumstances of
this questioning, Angevine's inquiry amounts to coercive
interrogation, which violates Section 8(a)(1) of the Act
and is objectionable conduct. Centre Engineering, supra.
6 Cashara's admitted statement on this occasion to Terwillinger was
"check with Rtchie Tamburro He used to work for a place that had a
union and ... [it is] not in existence any longer." There is no material
difference between what Terwilliger testified Cashara said and what Ca-
shara admitted saying
(k) Ronald Tortorella is a utility operator on the
second shift at the Grand Street plant. About a week
before the election, he had a conversation about the or-
ganizing campaign with his supervisor, Ron Hocker,
while Hocker was handing out some antiunion literature.
This conversation followed soon after a speech which
Company President Ned Buoymaster had given to a
massed assembly of Grand Street employees. Hocker
told Tortorella that, in his opinion, if the Union got in,
Buoymaster would exercise his right of shutting down
the plant and moving it to California if he felt it was no
longer competitive in the Kingston area. Tortorella
asked Hocker why he felt this way and Rocker replied
that the Japanese were the Company's main competitors
and it was possible that the Company's profitability
would no longer exist in Kingston under a union. Rock-
er's admitted statement, equating unionization with lack
of profitability and lack of profitability with moving the
plant to California, constitutes a threat which violates
Section 8(a)(1) of the Act and is objectionable conduct.
Robert VanWagenen, a former machinist at the Grand
Street plant, was summoned to the office of his supervi-
sor, Robert Sturrock, a few days before the election.
Sturrock is the new product design manager. Sturrock
had heard from personnel specialist Brenda Hagadorn
that Brenda Hagadorn's father, an official at another area
plant, had interviewed VanWagenen for a job and that
VanWagenen had told Hagadorn's father, in the course
of that interview, that he was sure he would be fired if
the Union lost the forthcoming election at National Mi-
cronetics. Sturrock asked VanWagenen what it was he
did not like about the Company. VanWagenen men-
tioned that wages were not up to scale and that the
Company lacked fringe benefits. Sturrock replied that
National Micronetics was a small company and was still
growing and "there's a lot to look forward to." I credit
VanWagenen's testimony that Sturrock told him that he
was aware that the Respondent had neglected to keep up
with other companies in the past and he asked VanWa-
genen to give them a second chance to see if they could
make things better. Sturrock tried to assure VanWagenen
that he had a good record and that he did not have to
fear for his job if the Union lost. VanWagenen said he
had no objection to working for Sturrock, but that the
employees in the bond and bar department were working
for supervisors who were very bad. He said that they
needed a contract and needed to work under a set of
rules which required supervisors to treat all employees
alike. They discussed production problems, the purchase
of ventilating equipment, and the fact that they had not
gotten around to installing the ventilating equipment be-
cause of production problems. Toward the end of their
discussion, Sturrock asked VanWagenen why he felt the
way he did about unions. VanWagenen replied that it
was because unionization gave employees a chance to sit
across the table with the Company' and bargain. Stur-
rock's request to VanWagenen to "give the company a
second chance" amounts to a promise of benefits in the
event the Union is defeated and his question to VanWa-
genen as to why the latter favored unions constitutes ille-
gal interrogation. Both statements violate Section 8(a)(1)
NATIONAL MICRONETICS
of the Act and are objectionable conduct.' Hubbard Re-
gional Hospital, 232 NLRB 858 (1977).
(m) Just before the election, Buoymaster made a tour
of each of the plants, shaking hands with each employee
and, in effect, electioneering in support of a "No" vote at
the election. In the course of his tour, he met VanWa-
genen, who was wearing an IUE pin. I credit VanWa-
genen's testimony to the effect that Buoymaster looked
at his IUE pin and said that he wished VanWagenen
would give him a second chance so he could keep the
operation in the area. VanWagenen asked Buoymaster
why he waited so long to come around and find out all
the problems that the employees had, and Buoymaster
gave no responsive answer. He just asked VanWagenen
to reconsider his position and walked away. Buoymas-
ter's request that VanWagenen give the Company a
second chance to keep the Company in the area amounts
to an implied threat that supporting the Union would
cause the plant to move. This statement is a violation of
Section 8(a)(1) and is objectionable conduct.
(n) The day before the election, Robert Friedlander, a
machinist on the first shift at the Broadway plant, was
summoned to the office of Operations Manager David
LaLonde, where they discussed the financial status of the
Company. During the course of this discussion, LaLonde
showed Friedlander various financial statements pertain-
ing to the Respondent's operations. I credit Friedlander's
testimony that LaLonde told him on this occasion that if
the Union came into the plant, it would adversely affect
the profitability of the operation and that he could move
the floppy line in a week.8 This statement amounts to a
threat to relocate a portion of the Respondent's oper-
ation, in the event of unionization, violates Section
8(a)(1) of the Act, and is objectionable conduct.
(o) During September and October, Charles Havlin, an
inspector at the Grand Street plant, was repeatedly ques-
tioned in conversations with his supervisor, Clark Ange-
vine, as to how Havlin felt about the Union, why Havlin
wanted to join a union, and how many members he
thought the Union had.9 This repeated interrogation vio-
lates Section 8(a)(1) of the Act and is objectionable con-
duct. Centre Engineering, supra; Birdsall Construction Co.,
198 NLRB 163 (1967), enfd. 487 F.2d 288 (5th Cir.
1973).
(p) I credit the uncontradicted testimony of Betty
Gallo, an assembly line employee at the Broadway plant,
that a few days before the election her supervisor, Larry
Walters, spoke to her concerning the election. He told
her that she did not have to vote "yes" now but could
wait, suggesting that if she did not get any benefits or
what she wanted, she could vote again in 6 months or a
year. This statement constitutes an implied promise that
the Respondent would grant benefits to employees if
7 The fact that VanWagenen testified that he did not regard Sturrock's
statements to be promises or threats is immaterial and is not even proper
testimony. It went into evidence because no objection was interposed to
it. It is well established that the Board utilizes an objective standard, not
a subjective standard , in determining whether statements constitute
threats or promises Fidelity Telephone Co, 236 NLRB 166 (1978).
s In fact, the Respondent did move a portion of the, floppy line to its
San Diego plant a few months later
9 Ilavlm's testimony concerning these conversations is uncontradicted,
as Angevine did not testify.
1001
they voted against the Union. As such, it violates Section
8(a)(1) of the Act and is objectionable conduct.
(q) The Respondent distributed to all its employees a
xeroxed copy of the summary of a Board decision in
Oxford Pickles, 190 NLRB 109 (1971), as it appeared in
77 LRRM 1049. Before distributing the copy of this
page, the Respondent wrote in ink at the top of the page:
"Here's the facts from the National Labor Relations
Board. They are neutral. This is the law-read it." The
Respondent also underlined and highlighted certain mat-
ters appearing in the LRRM headnotes and summary.
The Respondent underlined and characterized as "Fact
No. I" the quotation, "LMRA does not require that em-
ployer accede to all union demands or, after bargaining,
retail all current benefits." As "Facts No. 2 and 3," it un-
derlined the sentence "in fact, an employer may perma-
nently replace economic strikers and presence of union
does not prohibit an employer from moving its plant
should economic conditions dictate." As "Fact No. 4,"
the Respondent underlined "all union promises of im-
proved benefits are not attainable without prior employer
assent." In the portion of the LRRM case report which
quotes the text of the Board decision, the Respondent
highlighted the statement in the Board's decision which
read:
With regard to the answers to the questions , there is
no requirement in the Act that an employer accede
to all union demands or , after bargaining , retain all
current benefits. Nor does the presence of a union
prohibit an employer from moving its plant should
economic conditions dictate . Similarly , an employer
may permanently replace economic strikers.
The Respondent also emphasized with a notation "True"
the statement "all union promises of improved benefits
are not attainable without prior employer assent."
The Board has been of two minds concerning the pro-
priety of disseminating as campaign propaganda copies
of its majority decision in Oxford Pickles. In Glassmaster
Plastics Co., 203 NLRB 944 (1973), the Board held that
such activity contained both threats of reprisal and
promises of benefits and found it to be objectionable on
that account. In CBS Records Division , supra, the re-
spondent disseminated a copy of the Oxford Pickles deci-
sion along with a cover sheet summarizing its main
points. He also read at a massed assembly of employees
one small excerpt from the decision relating to an em-
ployer's duty to bargain and its right to replace econom-
ic strikers. The Board found in CBS that the employer's
conduct was not objectionable. Faced with this choice of
precedents, I can only conclude that the determinative
factor concerning the legality or illegality of distributing
the Oxford Pickles decision as a piece of campaign propa-
ganda is the context in which it is done. In this case the
Respondent's action took place against a background of
extensive activity which has been found to be either a
violation of Section 8(a)(1) of the Act or objectionable
or both. Accordingly, as it contains this coloration, the
Respondent's distribution of, the Oxford Pickles decision
in this case must perforce fall under the umbrella of the
Glassmaster decision, so I find it to be objectionable con-
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct which affected the result of the October 29-30 elec-
tion.
(r) I credit the testimony of Diana Eckert, an employ-
ee in the loading department at the West Hurley plant,
that sometime in June her supervisor, Al Troccia, called
her aside for a private meeting near the loading dock. In
the course of this conversation, Troccia told her that a
friend of hers named Connie had been "fingered" as
having talked with the Union and that he had also heard
her name mentioned in this connection. He told Eckert
that he did not want to hear her name mentioned again
in this connection or she would not have a job. He went
on to say that he had received a note accusing her of
taking documents from his desk and xeroxing them. He
warned her if he ever had proof that she was doing this,
she would be fired. Troccia's statement that Connie had
been "fingered" as talking with the Union and that Diana
Eckert had been mentioned in connection with union; ac-
tivities is an attempt to create the impression that the
union activities of employees are subject to company sur-
veillance. Both this statement and his threat to Diana
that she would be fired if her name again came up in the
context of her union activities violate Section 8(a)(1) of
the Act.
(s) Troccia also told Diana Eckert that she could talk
union on her lunch hour but not on her breaktime be-
cause breaks were being paid for by the Company. This
instruction imposed an overly broad no-solicitation rule
on her for which there is no business justification. Ac-
cordingly, it offends settled Board and court law on the
subject and is a violation of Section 8(a)(1) of the Act.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945);
Bandag; Inc., 225 NLRB 72 (1976), enfd. 583 F.2d 765
(5th Cir. 1978); Stoddard-Quirk Mfg. Co., 138 NLRB 615
(1962); Singer Co., 220 NLRB 1179 (1975); and Campbell
Soup Co., 225 NLRB 222 (1976). See also TRW Bearings,
257 NLRB 442 (1981).
(t) Diana Eckert complained that on August 23 Troc-
cia rode by her house on his motorcycle and stopped to
speak to her. He reportedly told her that he had been
talking with a supervisor and asked her if she had signed
a statement against somebody. He wanted to know if it
was he that she had signed a statement against and if she
knew who did sign the statement and what it was about.
Troccia denies making these statements. Even if Diana
Eckert's testimony is credited, the comments recounted
by her as having been made on this occasion do not
amount to a violation of the Act because there is no evi-
dence that the statement in question related to protected
activity, a Board investigation, or even to labor relations
generally. Accordingly, so much of the amended com-
plaint which alleges violations in this regard must be dis-
missed.
(u) During the organizing campaign , the Company
permitted both prounion and antiunion literature to be
posted on company bulletin boards. Diana Eckert com-
plained that after she had posted a piece of union litera-
ture on the bulletin board, it had been removed, defaced,
and reposted in an altered form. In its altered form, it ap-
peared to be a piece of antiunion literature. When she re-
moved the defaced copy, Keith Klein, the quality assur-
ance supervisor at the West Hurley plant, told her that
she could not remove any literature from the bulletin
board, and said she could be punished for doing so. She
complained to Klein that someone had taken her litera-
ture down, defaced it, and put it back on the bulletin
board. Klein said there was nothing the Company could
do about that because the person responsible was not
seen doing so. However, Diana Eckert was seen remov-
ing literature and she would be punished if she did it.
An employer may, in the absence of contract provi-
sions to the contrary, limit or forbid the use of an em-
ployee bulletin board located on company premises for
the purpose of posting any kind of personal material.
Where, as here, an employer permits campaign materials
to be posted, it must do so on an even-handed basis.
Challenge Cook Bros., 153 NLRB 92 (1965). Group One
Broadcasting Co., 222 NLRB 993, 999 (1976); Midwest
Stock Exchange, 244 NLRB 1108 (1979). In the instant
case, there was an obvious lack of even-handedness in
maintaining the bulletin board for campaign propaganda.
Diana Eckert was criticized and threatened with punish-
ment for attempting to rectify the violation of the Re-
spondent's rules by one of the Respondent's antiunion
employees, while the Respondent professed inability to
police its own rule with respect to employees who saw
things the Respondent's way. Accordingly, Klein's threat
to Diana Eckert was, under these circumstances, a viola-
tion of Section 8(a)(1) of the Act and was also objection-
able conduct.
(v) About a week before the election, Buoymaster told
Tamburro to inform employees at the Grand Street plant
that he would be going from shop to shop and from
office to office and would be available to discuss any
problems which employees might have. Early in the
morning, employees Ken Gsell and Paul Soura requested
permission to speak with Buoymaster and were able to
do so. They were later joined by Joe Gleich They
began bringing to his attention certain problems which
they were experiencing in the machine shop and stated
that they were looking to the Union for help in address-
ing problems that the Company had been overlooking.
Specifically, they complained about the poor ventilation,
the condition of the floor, and the condition of the old
machines. They also said that they wanted more sick
days and more holidays. I credit Gleich's testimony that
Buoymaster responded by discussing the fact that the
Japanese were causing the Company to lose money and
that the Respondent had lost about $1.5 million in the
Kingston area. He said that they could not continue to
operate and lose that kind of- money and that with a
union they could not afford to go on like that. He said
that the Japanese could easily supply the Respondent's
West Coast division for the same price that the Kingston
plants were selling that division. Gleich asked Buoymas-
ter if he thought that the Kingston employees were over-
paid. Buoymaster replied that he thought that there was
more to it than that. To the complaints which were
voiced, Buoymaster stated that at that moment his hands
were tied and he could not do anything about their com7
plaints, but that he would look further into the condi-
tions they mentioned.
NATIONAL MICRONETICS
Soliciting employee grievances during an election cam-
paign with a view toward adjusting them is a violation
of Section 8(a)(1) of the Act and is also objectionable
conduct. Reliance Electric Co., 191 NLRB 44 (1971); Hi-
Lo Foods, 247 NLRB 1079 (1980); Montgomery Ward &
Co., 253 NLRB 196 (1980); Berger Transfer & Storage
Co., 253 NLRB 5 (1980). It is of little consequence that
in the course of such solicitation an employer makes an
express disclaimer of doing anything about the griev-
ances it uncovers, if in fact it moves to remedy the griev-
ances or if it also promises, at the same time, to look into
the problems which have been brought to its attention.
Illinois Central Community Hospital, 224 NLRB 632
(1976); EMR Photoelectric, 251 NLRB 1597 (1980). Stride
Rite Corp., 228 NLRB 224 (1977). Statements such as
"my hands are tied," made in response to employee de-
mands for improvements during a representation carn-
paign, have also been held to be violative of the Act, in
that they have been regarded as an attempt by an em-
ployer to place the stigma of refusal to grant benefits on
a union. Centre Engineering, 253 NLRB 419, 421 fn. 12
and cases cited therein. In this case, Buoymaster, who
makes his home in California, came to Kingston during
the final week of the campaign to engage in some vigor-
ous electioneering, much of which is discussed elsewhere
in this decision. Making the rounds to solicit employee
grievances was a part of this electioneering effort.
Sounding out employees at this critical interval could
have no other purpose than to implant in their minds the
idea that the Company was receptive to their complaints
and would do something about them. Statements like
"my, hands are tied," and "I will look into your com-
plaints" in no way detract from this message and serve
only to reinforce an impression the Respondent wished
to convey without incurring the legal onus of conveying
it. Accordingly, I conclude that by soliciting grievances
from Kingston employees during the final week of the
campaign, Buoymaster violated Section 8(a)(1) of the
Act and engaged in objectionable conduct.
(w) For a number of years, local merchants (or local
outlets o' national concerns) have supplied the Respond-
ent with discount coupons or similar promotional offers
which would permit employees to obtain such things as
eyeglasses, auto transmission work, and rental cars at re-
duced prices. Normally such discount benefits were dis-
tributed to employees once or twice a year. In the course
of one of the instructional meetings which the Respond-
ent ]Labor Counsel Summa held for first line supervisors
in July 1980, he mentioned that the Respondent was
looking into developing some programs to provide bene-
fits for employees as a means of counteracting the union
drive that was in progress. Within the next month, the
Respondent distributed to employees three discount ben-
efits-one for rental cars, one for eyeglasses, and one for
transmission work-which had been made available by
local merchants. No such aggregation of discount bene-
fits in such a short period of time had ever been previ-
ously made available. It is obvious, both from the timing
and bunching of discount coupons and Summa's an-
nouncement to supervisors, that thses coupons were dis-
tributed in the number and manner they were in order to
convey the employees the idea that they did not need a
1003
union to obtain benefits as the Respondent's employees.
Accordingly, this distribution constitutes a grant of bene-
fits which violates Section 8(a)(1) of the Act. Because
this grant anticipated by a few weeks the filing of the
representation petition, it does not constitute objection-
able conduct.
(x) About September 4, 1980, Wes Robinson, a vice
president of the Company, held a number of small meet-
ings of employees in his office at the Grand Street plant
at which he discussed the organizing drive which had
just reached the stage of the filing of a representation pe-
tition. He held other similar meetings later in the cam-
paign. Robinson had a prepared text which he used
during one of these meetings. However, from time to
time he departed from this text in response to employees'
questions and comments or because he felt that the deliv-
ery of his message would be impaired by simply reading
from a piece of paper. The thrust of his text was to con-
vince employees not to support the union drive. I credit
the testimony of former Supervisor Ronald Klawson that
at the meeting he attended Robinson told employees that
if a union came in, it would make outrageous demands
which would break the Company. Robinson mentioned
that he was new in his particular job, that others could
vouch for the fact that he was really a decent individual,
and he asked employees to give him some time. He
stated, in the course of the discussion, thal the Company
could not deal with a union. Klawson objected and
brought up the case of Chrysler and its union, observing
that the two sides sat down and worked out their prob-
lems. Robinson replied he felt that there was no way that
the Union trying to organize National Micronetics would
be agreeable and there was no way that the Company
would be able to exist with them.
I credit the testimony of William Morris, William Ter-
williger, and Thomas Peoples to the effect that at an-
other employee meeting, held by Robinson, Robinson
stated the Respondent could not afford a union. He
stated that if the Union came in, the Company would ne-
gotiate only "by law" but there would be no contract
the employees would have to "walk." Robinson also said
that the employees would lose everything they now had
because we "would start from the bottom and work our
way up." He went on to say that every employee could
be permanently replaced and that the Company had 400
applications in the office from people who were ready to
take their jobs. Morris interrupted Robinson and object-
ed to his statement, saying that employees could,only be
permanently replaced in the event of an economic strike
and, if a strike occurred, it would not be an economic
strike. Robinson contradicted him, stating that employees
could be permanently replaced in any strike. He also told
employees that the Company could close down its
Kingston operation, buy parts from Japan, and have
them shipped to the West Coast plants.
I credit the testimony of Robert VanWagenen that at
another employee meeting Robinson told employees that
if the Union won the election and the Respondent could
demonstrate that it was losing money, it could either
close the plant or employees could end up with less than
they already have. He also said that by law the Compa-
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny had to negotiate with the Union, but it did not have
to give them anything and it could force employees out
on strike. He mentioned that he had 400 job applications
in his office and he could hire employees off the street to
replace strikers and make permanent jobs for those em-
ployees.
I credit the testimony of Joseph Gleich that during
one of Robinson's employee meetings, Robinson stated
that because of the Company's financial problems it
could not afford a union. Robinson went on to say that if
the Union came in, it would call an economic strike and
the Company would not negotiate at all. He also in-
formed employees that during an economic strike all
striking employees could and would be replaced. Gleich
began to ask Robinson some questions, including a ques-
tion concerning a long-proposed pension plan. Robinson
simply said it was in the works, but he could not promise
anything since it was illegal at this point to promise ben-
efits. Gleich began to argue with him, asking him why it
was that he could not promise anything good but could
promise employees the worst, like strikes and relocation
of the plant. Robinson's reply was, "That's not a prom-
ise. That's a fact." Gleich went on to ask Robinson how
the Company could afford to train strike replacements.
Robinson answered, "That's just it. If the Union gets in
and they strike, we can't afford to replace them and train
people. We'll just have to move out of the area."
It is an unfair labor practice and objectionable conduct
for an employer, in the course of an organizing cam-
paign, to tell employees that bargaining would start
"from scratch" or "from the bottom up," if the thrust of
these remarks is to connote the idea that the Respondent
would discontinue existing benefits if it had to engage in
collective bargaining. Madison Kipp Co., 240 NLRB 879
(1979); Centre Engineering, supra; Taylor-Dunn Mfg. Co.,
252 NLRB 799 (1980). Announcing an anticipatory refus-
al to bargain in the event of unionization is likewise vio-
lative of the Act. Buckeye Tempo Gamble-Skogmo, 240
NLRB 723 (1979). Such statements do not lose their ille-
gal character because, on other occasions or indeed on
the same occasion, an employer spokesman proclaims co-
lorable compliance with the law by saying that it will
bargain in good faith: Contradicting oneself is no defense
to an unfair labor practice charge, since an employer
spokesman who "carries water on both shoulders"
simply leaves his hearers in the position of being reason-
ably apprehensive that their employer may violate the
law and interfere with their Section 7 rights. Robinson's
above-quoted remarks offend in these particulars. Chester
Valley, Inc., 251 NLRB 1435 (1980).
Likewise, telling employees that unionization inevita-
bly leads to strikes constitutes a violation of the Act.
Louis Gallet, Inc., supra. As noted before, asking employ-
ees to give the Employer another chance is a violation of
the Act and asking employees to give the Employer
more time, meaning to vote against the Union and let the
Employer improve benefits and conditions without col-
lective bargaining, falls in the same category. EMR Pho-
toelectric, supra; C-F Air Freight, 247 NLRB 403 (1980).
It has also been repeatedly held that misstatements of an
employee's right of reinstatement after a strike, as set
forth in Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), is a violation of Section 8(a)(1)
of the Act because inherent in such misrepresentations or
misstatements is the threat of complete loss of employ-
ment in the event an employee exercises his Section 7
rights. Webel Feed Mills, 217 NLRB 815 (1975); Utlaut
Memorial Hospital, 249 NLRB 1153 (1980); Peat Mfg.
Co., 251 NLRB 1117 (1980); Piezo Technology, 253
NLRB 900 (1980). A threat to close the plant in the
event of unionization is an obvious violation. Robinson's
quoted remarks violate Section 8(a)(1) and are objection-
able conduct for these reasons as well. Statements that
striking employees can and will be replaced, that job ap-
plications of 400 strike replacements are on file, that
strikers other than economic strikers could be replaced,
and that permanent jobs would be made for strike re-
placements carry the unmistakable message that striking
is the equivalent to losing one's job and that once an em-
ployee goes out on strike, he or she has no chance of re-
turning to work for the Respondent.
(y) I do not credit statements by various employee
witnesses that the Respondent's spokesman told them
that union authorization cards would be made available
to the Respondent for inspection. I believe that these em-
ployees confused the announced procedure of supplying
the Board with W-4 forms for verification of a showing
of interest with actual inspection by the Respondent of
cards which had been signed. Accordingly, I would dis-
miss so much of the amended complaint which alleges
surveillance or impression of surveillance of union activi-
ties through inspection of union cards and would over-
rule the objection to the election in this regard.
(z) Sometime before the representation petition was
filed, Thomas Selig , Respondent's group vice president
for Kingston activities, addressed groups of employees at
the Respondent's three Kingston plants. At that time, he
conducted a total of nine meetings and presumably
reached all or almost all the Respondent's 400 Kingston
employees. He told employees that he wanted to make
sure that they realized the implication of signing union
cards, that it would be possible for them to end up with
a union even without an election on the basis of signed
cards, and he further wanted them to know that he was
strongly opposed to the unionization of plants. He out-
lined for them the mechanics of the Board's election pro-
cedure. He informed them that the election, which
would take place in the event a representation petition
was filed, would be a secret-ballot election. He assured
employees that the Board would oversee whatever the
Company and the Union did in the way of campaigning.
There was nothing in Selig's remarks on this occasion to
warrant a finding of a violation. As they were made
before the filing of a representation petition, they could
not in any event be regarded as objectionable conduct.
(aa) Shortly after the petition was filed, Selig and
Edward Finnegan, the Respondent's financial and admin-
istrative vice president, spoke at a series of massed as=
semblies at each of the Kingston plants to discuss what
the Respondent came to call its pension profit-sharing
NATIONAL MICRONETICS
plan.' 0' With the help of a projector and overlays, it out-
lined the course of the Respondent's efforts over the past
2 years in instituting this amorphous fringe benefit-dis-
playing correspondence with prospective fund adminis-
trators, government agencies, and others. The outline of
the Selig-Finnegan explanation stopped with a time con-
temporaneous with the beginning of the union drive. I
do not think that the discussion constituted anything
other than an informational effort and I believe that no
promises, expressed or implied, were made on those oc-
casions. Accordingly, I would dismiss so much of the
amended complaint which alleges a violation in this
regard and overrule the objection leveled at these talks.
(bb) On October 30, following the defeat of the Union
at the representation election, Selig sent a memorandum
to all Kingston employees which read, in pertinent part:
I want to write and personally thank and congratu-
late you on defeating the IUE attempt to organize
our company.
The IUE has one last chance to prove [to] us that
they were really interested in the welfare of Nation-
al Micronetics Employees and not their own treas-
ury. If the IUE is truly concerned about the welfare
of our employees they will accept the results of a
fair secret ballot election and allow all of us to im-
mediately join together and get to work solving the
problems that face us.
On the other hand, if the IUE does not accept the
results of the fair democratic election, but instead
files frivolous unfair labor practices and objections,
this which would serve no purpose but to harass the
company and its employees and thus delay the posi-
tive measures which can only benefit all of us. This
will also very clearly show us the IUE's true
colors.
Selig's parting shot did not explain to employees that ex-
pected benefits would have to be deferred pending the
outcome of an election in order to avoid the appearance
of impropriety. It simply was an attempt to head off the
filing of charges and objections-many which have been
proven to be meritorious-by anticipatorily pinning the
blame for its refusal to grant improvements and benefits
to employees on a labor organization which might wish
to exercise its rights under the Act, but had not yet done
so. As such, this letter violates Section 8(a)(1) of the Act.
Centre Engineering, supra.
(cc) Ronald Klawson was hired as a production super-
visor on the night shift at the Grand Street factory. In
mid-September 1980, he was demoted to a nonstiperviso-
ry position but without loss of income. Late in Novem-
ber he was laid off. On October 21 and again on October
10 From discussions in the record from counsel and witnesses, it is dif-
ficult to determine just what kind of plan the Respondent was talking
about It was not talking about the creation of a fund which would pay
reined employees fixed amounts on a periodic basis (pension plan) and it
was not talking about a current distribution of a portion of the profits to
employee shareholders (profit-sharing plan) The shape of what emerged
in this discussion was something called a profit-sharing-pension plan, but
which was really not a plan for much of anything.
1005
25, Klawson authored two vigorous prounion letters
which were disseminated by the Union just before the
election to all the Respondent's Kingston 'employees.
About October 24, John Cashara, the supervisor of pro-
duction control at the Grand Street factory, called
Klawson into his office and began to talk with him. He
told Klawson that he was aware of his union activity and
stated that he could not understand why Klawson had
done what he had done. I credit Klawson's testimony
that Cashara told him on this occasion that he had given
up his chance for advancement in the Company and, spe-
cifically, any chance of moving to Cashara's job if and
when Cashara was promoted. About that time, Fred
Pohler, the production manager at the Grand Street fac-
tory, walked into Cashara's office from his own office
next door and briefly participated in the conversation in
progress. Pohler told Klawson that it was too bad that
he had chosen to affiliate with the Union because he had
a good background in production control and this was
the kind of experience the Company was looking for.
A few days later, Klawson had occasion to enter
Pohler's office, where they discussed the second union
campaign letter that Klawson had written. Pohler told
Klawson that it was too bad that he had gone ahead
with the letter and he had hoped that Klawson would
have used better judgement. He told Klawson that he
felt that he had given up any chance for advancement at
Micronetics. Klawson replied by stating that he felt the
Company needed a pension plan, that the employees
were grossly underpaid, and that there were numerous
safety violations in the plant. At this point, Robinson
happened to walk into Pohler's office. Pohler asked
Klawson to repeat to Robinson' what he had just said
and Klawson did so. Robinson's reply was a request to
Klawson to give him a chance because he thought that
he could improve the situation.
Statements by Pohler and Cashara that Klawson had
forfeited any chance of advancement by engaging in
union activities constitute violations of Section 8(a)(1) of
the Act. C-F Air Freight, supra. I find that they occurred
before the election so they also constitute objectionable
conduct. Robinson's request to Klawson to "give him a
chance," because he thought he could improve the situa-
tion, is an illegal promise of benefit, given for refraining
from union activities, which violates Section 8(a)(1) of
the Act and is also objectionable conduct.
(dd) Keith Klein was formerly the quality assurance
supervisor at the West Hurley plant (just outside Kings-
ton). During the election campaign, he held frequent em-
ployee meetings to discuss matters which were in issue.
During one such meeting, which took place just before
the election, Klein told employees that, if the Union
came in, there would be strict job classifications and em-
ployees would not be able to switch from department to
department. He also suggested that this rigidity would
probably lead to layoffs. He told employees that, for a
long time, the Company has not been listening to its
work force but now they were aware of its problems and
there were going to be some changes made. He did not
specify what those changes might be. Klein's remarks
concerning strict job classifications, impai red opportunity
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to switch jobs, and possible layoffs constitutes a threat
which violates Section 8(a)(1) of the Act and is objec-
tionable conduct. His other remark about changes which
were going to be made constitutes a promise of benefits
which also violates Section 8(a)(1) of the Act and is ob-
jectionable conduct. Hinky Dinky Super Markets, 247
NLRB 1176 (1980); Lyman Steel Co., 249 NLRB 296
(1980).
(ee) On the Friday before the election , Buoymaster
gave massed assembly speeches to all employees on all
shifts in each of the three Kingston factories. He spoke a
total of six times and attempted to deliver the same re-
marks on each occasion. He did not use a text for the
bulk of his remarks but did read verbatim the final state-
ment on each occasion. Much of the testimony in this
record is devoted to conflicting versions of just what
Buoymaster said on each of these six occasions . i i Rec-
onciling these differing versions is a difficult chore and,
in the last analysis, a pointless one because , in the light
of the violations and objectionable conduct found above,
any finding relating to the Buoymaster speeches would
not affect the recommended Order in the complaint case
or the disposition of the representation case.
Buoymaster began each of his talks by noting that a
representation election was going to take place the fol-
lowing week, that the decision to be made at the election
was an important one, and that the he hoped the employ-
ees at the Kingston plants would vote for the Company
and against the Union. He recounted how the Company
started in the Kingston area with the help of local banks
and governmental agencies and he said he had affection
for the Kingston area. t 2 However, he told them that the
Company had been losing money in the Grand Street
and Broadway operations, that it was working hard to
cut these losses, and that a union would not help this
effort. He stated that modifications were going to have
to be made in order to make the Company profitable but
he did not spell out what these modifications might be.
He mentioned the fact that the Company had plants in
San Diego and that it had a plant in Tijuana, Mexico,
where the labor rate was about $1.30 per hour . He stated
that he had an obligation to the stockholders to operate
the plant profitably and that if anything made it impossi-
ble for it to be economically competitive, the Company
had the right to relocate. He also mentioned that the
Company's California competitors buy their products
from Japanese companies and that the Respondent could
have saved $100,000 by doing the same thing rather than
using the products of the Kingston plants, but it did not
want to do so.
i i In response to prompting by leading questions, many witnesses pro-
duced by the Respondent testified that Buoymaster did not threaten to
move the plant or to buy parts from the Japanese in the event of union-
ization Other witnesses quite emphatically understood him to be say that
if the Union came in, the Company would move to California or Mexico
and the Kingston employees would lose their jobs Under well-estab-
lished precedents, characterizations, reactions, and inferences drawn by
members of an audience are not dispositive of whether a speech does or
does not exceed permissible bounds.
12 Buoymaster lived in the Kingston area about 20 years, but moved to
California about 2 years ago Since his relocation, he visits the Kingston
plants on a frequent basis
An employer who presses an antiunion campaign
effort to the ultimate limits the law allows takes the risk
that it will go too far and, when it does, the Board and
the courts have expressed little sympathy with a tactic
they have labeled "brinkmanship." Piezo Techonology,
supra; Wausau Steel Corp. v. NLRB, 377 F.2d 369 (7th
Cir. 1967); NLRB Y. Solbora Knitting Mills, 572 F.2d 936
(2d Cir. 1978); NLRB v. Rollins Telecasting, 494 F.2d 80
(2d Cir. 1974). Although subjective reactions of particu-
lar employees do not determine whether a given speech
violates the Act, the risk that a reasonably prudent em-
ployee may misunderstand the remarks of his employer
when it urges a "No" vote, and be reasonably led to be-
lieve that unionization will cause loss of jobs, plant relo-
cations, and other adverse consequences is on the speak-
er. The Respondent has urged me to evaluate Buoymas-
ter's statements, as well as other wrongful acts alleged in
the amended complaint, in proper context, and indeed I
will, both as to external context of Buoymaster's state-
ment concerning the Respondent's economic difficulties,
its plants in other locations, the low wage rate in Tijua-
na, his ability to purchase parts more cheaply from
Japan, and his right to relocate the plant if it became
economically unfeasible to remain in Kingston, is that
they came as the final (or semifinal) blows in a constant
hammering at employees that had taken place for nearly
3 months. This campaign effort, euphemistically de-
scribed as vigorous or spirited, was also illegal in many
particulars. As found above, company spokesmen fre-
quently employed threats and promises to achieve their
ends. Buoymaster's comment concerning the possibility
of operating at other locations in the event of unioniza-
tion was not the first talk that some employees had heard
on this subject. The other expressions of this same
thought were not uttered in carefully crafted phrases. If,
on the basis of other employer statements, employees
reasonably put two and two together in listening to
Buoymaster and then came up with four, the Respondent
is responsible for the sum total.
With respect to the speech itself, Buoymaster's whole
purpose in delivering it was to urge employees to vote
against the Union and to give them reasons for doing so.
His opening remarks were a "Vote No" pitch and his un-
flattering references thereafter to the Union were a reit-
eration of the same theme. If the "bottom line" of a
speech was "Vote No," then anything said within the
framework of the speech was merely for emphasis. What
relevance does the existence of other plants in California,
the low wage rate in Tijuana, the economic losses at
Kingston, the low price of Japanese parts, and the right
to relocate have in a speech urging rejection of the
Union unless it was to let the audience know that these
possibilities were definitely in the offing if they did not
follow the speaker's advice? Buoymaster's explanation
that he combined these supposedly unconnected thoughts
into one statement simply to let the Kingston employees
know what a generous and indulgent Company they
were working for is unworthy of comment. Any doubt
as to the Company's continued indulgence and generosi-
ty was quickly dispelled by his reminder of its right to
relocate if it became uncompetitive. Although Buoymas-
NATIONAL MICRONETICS
ter's explicit remarks were not that unionization equaled
plant relocation, the equation he drew for employees was
that unionization-lack of connpetitiveness-plant reloca-
tion. This was not a Gissel-authorized prediction based
on objective facts but a calculated threat spun out at
some length. As such, it violated Section 8(a)(1) of the
Act and is objectionable conduct.
B. The Alleged 8(a)(3) Violations
1. The elimination of Klawson's overtime
After Klawson was demoted to a nonsupervisory posi-
tion, he and other production control employees at the
Grand Street plant were frequently assigned Saturday
overtime on a rotating basis. On the last Saturday of
each month, several employees in this section, including
Klawson, normally worked together to take inventory.
According to Klawson, he frequently worked in tandem
with Anton W. Eisenbeil. If one had Saturday duty, the
other normally did not, except on the last Saturday of
the month.
Recollections of witnesses differed on who worked
which Saturdays in October 1980. The Respondent's
records indicate that Eisenbeil worked overtime on Oc-
tober 4, 11, and 25 and on November 1. They also reflect
that Klawson worked overtime on October 4, 18, and 25,
but not on November 1. It is the assignment of overtime
to Eisenbeil on November I and not to Klawson that
gives rise to Klawson' s claim of discrimination.
On October 21, the Respondent posted a duty roster
both for regular weekly work and for Saturday schedule
for Klawson and Eisenbeil during the first four Satur-
days in November. Klawson was scheduled to work on
November 1 and 15 and Eisenbeil was scheduled to
work on November 8 and 22. On October 30, the second
day of the election, Cashara told Klawson that Saturday
overtime was being eliminated, except possibly on the
last Saturday of each month. As a result, Klawson did
not work on November 1, although he subsequently
learned that Eisenbeil did. Neither worked any additional
overtime in November and Klawson was laid off late in
November.
It should be noted that between the time that the duty
roster was posted on October 21 and the time Klawson
was notified on October 30 that he would not work on
November 1, Klawson had blossomed forth as a leading
union adherent. He wrote two widely circulated proun-
ion campaign letters, which were discussed, supra, and
he was the subject of several violative statements uttered
by Cashara, Pohler, and Robinson during or just before
the same week his overtime was canceled. Klawson was
the Union's observer at the October 29-30 election and
this fact became known just before his overtime was can-
celed.
When Cashara notified Klawson that he would not be
working on November 1, the explanation that he gave
was that all Saturday overtime was thereafter being can-
celed, except on the last weekend of the month. This
was not entirely true. Eisenbeil's overtime was not can-
celed until after November 1, on which date he substitut-
ed for Klawson. The Respondent's fallback explanation
for this reassignment, offered at trial, was that the substi-
1007
tution of Eisenbeil for Klawson was brought about in
order to follow the customary rotation of Eisenbeil and
Klawson, noting that Eisenbeil had not worked on Octo-
ber 18 while Klawson did, and that on October 25, the
last Saturday of the month, both men had worked. This
explanation ignores the fact that the November 1 assign-
ment to Klawson was made in writing on October 21,
the Tuesday following the Saturday when Klawson
worked and Eisenbeil did not. No mention was made at
that time of the excuse prompting the eventual switch
and there is no reason to believe that any unfairness
arose from this schedule, as posted, since Klawson
worked a total of three Saturdays in October and Eisen-
beil worked the same number.
Based on factors of company knowledge, collateral
animus, the timing of the elimination of Klawson's No-
vember 1 overtime, and the deceptiveness with which it
was done, I conclude that the Respondent eliminated
Klawson's November 1 overtime in order to take reprisal
against him for his leading effort in the unsuccessful
union campaign. The Respondent's action in this regard
violates Section 8(a)(1) and (3) of the Act.
2. The delay in Clark's promotion
Between May 5, 1980, and January 5, 1981, William
Clark was employed as a vacuum technician at the
Broadway Street plant. I credit his testimony to the
effect that, when he was interviewed on May 5 by Nac-
carato, he was told that he would be hired as a proba-
tionary employee at $3.92 per hour and, if at the end of 3
months he proved satisfactory, he would be given a raise
to $5 per hour and reclassified as a salaried nonexempt
employee.13 On August 7, Naccarato and Clark had a
performance review, in the course of which Naccarato
told Clark that he had exceeded the Company's expecta-
tions but that he was getting a raise only to $4.40 rather
than $5 because if the Respondent gave him too much,
its action could be construed as a favor designed to influ-
ence him to vote against the Union.
On Monday, October 19, after returning from a week-
long training session in Detroit, Clark encountered Ray
Grogan, who is now the Respondent's plant manager.
Grogan asked Clark why he was wearing a union button,
pointing out to him that the Company had just spent a
lot of money to provide him with a week of training in
Detroit. Clark replied that the training was the only
promise the Company had kept. When he explained what
had taken place at his initial interview, Grogan replied
that he had not been aware of the problem but that there
was nothing he could do for the moment because of the
forthcoming election. He did promise Clark that after the
election he would see what he could do about Clark's
complaint. The week following the election Clark was
given a raise to $5 per hour, as promised, and was reclas-
sified into a salaried nonexempt position.
It has frequently been said that when faced with the
question of making wage increases and other improve-
13 In addition to demeanor, this resolution is also based on the fact that
the raise which Clark ultimately received in early November, along with
the reclassification, was exactly what he claims had been promised to him
on May 5
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments in benefits during an election campaign, an em-
ployer is obligated to act as if there were no campaign in
progress. If a promised wage increase has been sched-
uled, it may take place as scheduled. Where regular and
recurring increases normally fall due, they may be paid.
In this instance, the Repondent did not act on August 7
as if there were no union in its labor relations picture. It
denied Clark 60 cents of a promised $1.08 hourly raise
under the credited reason that a representation campaign
was taking shape. How the Respondent could justify a
48 cents raise at this time, despite the organizing effort
which was in progress, but deny the full amount prom-
ised because of possible preelection improprieties, is a
question that has not been answered and which the Re-
spondent sought to avoid answering by a defense, the
factual premises of which has been discredited. When, on
August 7, the Respondent denied Clark a promised raise
and reclassification because of union-related consider-
ation, it violated Section 8(a)(1) and (3) of the Act.
When, on October 19, it again postponed this raise, it
again violated Section 8(a)(1) and (3) of the Act and en-
gaged in objectionable conduct within the Goodyear
period.
On these findings of fact, and on the entire record, I
make the following
CONCLUSIONS OF LAW
1. The Respondent, National Micronetics, Inc., is now
and at all times material herein has been engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By denying overtime to Ronald Klawson and by de-
nying or postponing a wage increase to William Clark
because of union-related considerations, the Respondent
violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3; by threatening employees to relocate or
close the plant if the Union became their bargaining
agent; by coercively interrogating employees concerning
their union sympathies and activities; by threatening em-
ployees with stricter job classifications and denials of
interdepartmental transfers in the event the Union
become their bargaining agent; by coercively interrogat-
ing employees concerning their union sympathies and ac-
tivities; by theatening employees with stricter job classifi-
cations and denials of interdepartmental transfers in the
event the Union become their bargaining agent; by solic-
iting employees' grievances during a representation elec-
tion campaign for the purpose of adjusting them; by tell-
ing employees that it would not bargain with a union if it
became the duly selected bargaining agent of employees;
by telling employees that they had forfeited opportunities
for promotion by engaging in union activities; by im-
pliedly promising benefits to employees by asking them
to give the Respondent a second chance and vote against
the Union; by disseminating among employees a copy of
a Board decision so marked to imply that employees
would be discharged for engaging in strike activity; by
telling employee that another employee had been "fin-
gered" as a union supporter; by threatening to discharge
employees if they engaged in or were reported to have
engaged in union activities; by attempting to create
among employees the impression that their union activi-
ties are subject to company surveillance; by disparately
maintaining a bulletin board so that prounion campaign
propaganda could be removed or altered with impunity
while protecting procompany propaganda from being re-
moved or altered; by distributing discount coupons in
such a manner as to create the impression that the Com-
pany was providing benefits to dissuade employees from
supporting the Union; by telling employees that they
would be permanently replaced for striking without let-
ting them know about reinstatement rights; and by at-
tempting to pin the blame for a prospective refusal to
make improvements in wages and benefits on the possi-
ble action of the Union in filing charges or objections
with the Board, the Respondent violated Section 8(a)(1)
of the Act.
5. Such acts and conduct recited above in Conclusion
of Law 4, which occurred between August 29 and Octo-
ber 30, 1980, constitute objectionable conduct affecting
the results of a representation election which was con-
ducted among certain of the Respondent's Kingston em-
ployees on October 29 and 30, 1980, and warrants the
setting aside of said election.
6. The aforesaid unfair labor practices and objection-
able conduct have a close, intimate, and adverse affect
on the free flow of commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices and objectionable conduct af-
fecting the conduct of an election, I will recommend that
it be required to cease and desist therefrom and, to take
other affirmative actions which are designed to effectu-
ate the purposes of the Act. Because the independent
violations of Section 8(a)(1) of the Act found herein are
repeated and pervasive, I will recommend to the Board a
so-called 8(a)(1) remedy designed to suppress any and all
violations of that Section of the Act. Hickmott Foods, 242
NLRB 1357 (1979). The recommended Order will also
provide that the Respondent be required to make whole
Ronald Klawson and William Clark for any loss of earn-
ings which they may have suffered by reason of the dis-
crimination practiced against them, in accordance with
the Woolworth formula (F. W. Woolworth Co., 90 NLRB
289 (1950)), with interest at the adjusted prime rate used
by the Internal Revenue Service for the computation of
tax payments. Olympic Medical Corp., 250 NLRB 146
(1980); Isis Plumbing- Co., 138 NLRB 716 (1962). I will
also recommend that the Respondent be required to post
the usual notice, advising its employees of their rights
and the results in this case.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
14 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Continued
NATIONAL MICRONETICS 1009
ORDER
The Respondent , National Micronetics, Inc., Kingston,
New York, and its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union sentiments and activities.
(b) Threatening employees to relocate the plant or
close the plant if the Union should become their bargain-
ing agent.
(c) Threatening employees stricter job classifications
and denials of interdepartmental transfers if the Union
should become their bargaining agent.
(d) Soliciting grievances from employees during a rep-
resentation election campaign for the purpose of redress-
ing their grievances.
(e) Telling employees that it would not bargain with a
union if a union became their duly selected bargaining
agent.
(f) Impliedly promising benefits to employees to dis-
suade them from supporting the Union.
(g) Disseminating among employees a copy of a re-
print of a Board decision marked to imply that employ-
ees would be discharged for engaging in strike activity.
(h) Threatening to discharge employees because they
engage in or are reported to have engaged in union ac-
tivities.
(i) Attempting to create among employees the impres-
sion that their union activities are subject to company
surveillance.
(j) Disparately maintaining a bulletin board in such a
manner that nonunion campaign propaganda could be
defaced or removed while protecting procompany cam-
paign propaganda from being defaced or removed.
(k) Distributing discount coupons to create the impres-
sion that the Company was providing benefits to dis-
suade employees from supporting the Union.
(1) Telling employees that They would be permanently
replaced if they exercised their right to strike.
(m) Attempting to pin the blame for a prospective re-
fusal to make improvements in wages and benefits on the
possible action of the Union in filing charges or objec-
tions with the Board.
(n) Discouraging membership in and activities on
behalf of International Union of Election, Radio, and
Machine Workers, AFL-CIO or any other labor organi-
zation by postponing promised wage increases or deny-
ing employees overtime , or otherwise discriminating
against employees in their hire or tenure.
(o) By any other means or in any manner interfering
with, restraining , or coercing employees in the exercise
of rights guaranteed them by Section 7 of the .Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole William Clark and Ronald Klawson
for any loss of pay or benefits which they have suffered
by reason of the discriminations found herein, in the
manner described above in the remedy section.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll and other records necessary to analyze the amounts
of backpay due under the terms of this Order.
(c) Post at the Respondent 's place of business in and
about Kingston, New York, copies of the attached notice
marked "Appendix ." 15 Copies of this notice , on a form
provided by the Regional Director of Region 3, shall be
posted immediately on receipt and maintained by the Re-
spondent for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 3-RC-7892 be sev-
ered from Case 3-CA-10123, that the election conducted
is set aside, and that Case 3-RC-7892 be remanded to
the Regional Director for Region 3 for the purpose of
conducting another election at such time as he deems the
circumstances will permit the free choice of a bargaining
agent.
IT IS FURTHER ORDERED that, insofar as the amended
consolidated complaint alleges, matters which have not
been found herein to be violations of the Act are dis-
missed.
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102A8 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses. Labor.Relations Board."