Noral Color Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 567 (N.L.R.B. 1985)

NORAL COLOR CORP
Noral Color Corporation and Chicago Local 458,
Graphic Communications International Union,
AFL-CIO
Noral Color Corporation and Mark L . Schwartz, Pe-
titioner and Chicago Local ' 458, Graphic Com
munications International Union, AFL-CIO.
Cases 13-CA-23136 and' 13-RD-1475
25 September 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 19 September 1984 Administrative Law
Judge Robert A. Giannasi issued the attached deci-
sion. The General Counsel and the Charging Party
filed exceptions and supporting briefs, and the Re-
spondent filed a brief in response to the exceptions,
cross-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 briefs- and has
,decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and, orders that the Respondent, Noral Color
Corporation, Chicago, Illinois, its officers, agents,
successors, and assigns , shall take the action set
forth in the Order.
[Direction of Second Election omitted from pub-
lication.]
I The Respondent and the Charging Party have excepted to some of
the judge's credibility findings 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
We find no need to pass on whether the interrogation of employee
George Luecker by Al Schneider , the Respondent 's chairman , violated
Sec 8(a)(1) In light of the other 8(a)(1) interrogations found , an addition-
al finding would be cumulative and would not affect the remedy ordered
2 In finding that a second election is warranted , Chairman Dotson does
not rely on Petaluma Convalescent Hospital, 271 NLRB 412 ( 1984), a case
cited by the judge '
In finding a bargaining order inappropriate , Member Dennis relies on
her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261
(1985)
Although Member Dennis does not presume dissemination of campaign
-remarks (see her Regency Manor Nursing Home decision), she agrees with
the judge that a new election is warranted inasmuch as the , first election
resulted in a tie vote and the Respondent 's unlawful conduct directly af-
fected at least three employees See Caron International, 246 NLRB 1120
(1979)
567
Any W. Eggertsen, Esq., for the General Counsel.
S. Richard Pincus, Esq.. (Fox and Grove, Chartered), of
Chicago, Illinois , for the Respondent.
Thomas D. Allison, Esq. (Cotton, Watt, Jones & King), of
Chicago , Illinois , for the Union.
DECISION
STATEMENT OF THE,CASE
ROBERT A. GIANNASI, Adminstrative Law Judge. This
consolidated case was tried on May 2 and 3, 1984, in
Chicago, Illinois . The complaint in Case 13-CA-23136
alleges that Respondent violated Section 8(a)(1) of the
Act by various statements made to employees during a
preelection campaign which included interrogations,
threats , and promises of benefits. The election, in which
the employees voted whether to decertify the Charging
Party Union,' resulted in a 14-to-14 tie. The Union, how-
ever, filed objections to this election which included, but
were not limited to,_the unfair labor practices alleged in
Case 13-CA-23136. The complaint case was consolidat-
ed with the objections case , Case 13-RD-1475,-and the
General Counsel also requested a bargaining order based
on the Union's majority status as incumbent bargaining
representative prior to the election and its loss of majori-
ty which was allegedly caused by Respondent's unfair
labor practices. Respondent denies the substantive allega-
tions of the complaint , seeks to uphold the results of the
election , and resists the attempt to invoke a bargaining
order remedy. All parties filed briefs, which I have read
and considered.
Based on the entire record, including the testimony of.
the witnesses and my observation of their demeanor, I
make the following . i -
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a corporation with an office and plant lo-
cated in Chicago , Illinois, is engaged in the business of
film preparation and related work for the graphics arts
industry . During the past calendar year , Respondent sold
and shipped from its Chicago, Illinois facility products
and materials valued in excess of $50,000 directly to
points outside the State of Illinois-' Accordingly, I find,
as Respondent admits , that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. .
H. THE LABOR ORGANIZATION
The Charging Party Union (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.
I The name of the Union was amended at the hearing as a result of a
merger at the International level of the Graphic Arts International Union,
the name used in the original charge , and the International Printing and
Graphic Communications Union which took place on July 1, 1983
276 NLRB No. 61
568 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts: Background
•
Respondent and the Union have had a bargaining'rela-
-tionship since about 1968 with respect to employees per-
forming lithographic production work.2 The last collec-
tive-bargaining agreement between the parties, effective
from May 1, 1980; through April 30, 1983, was negotiat-
ed between the Union and the Chicago Lithographers
Association (CLA), a multiemployer bargaining group to
which Respondent. belonged. Prior to negotiations for a
new agreement, Respondent informed the Union that it
would no longer be represented by CLA, but that it
would be represented instead by an association called
MIGBA. In early January 1983, Respondent, informed
the Union, that it was withdrawing from MIGBA and
would negotiate with the Union as a single employer.
On February 8, 1983, a petition for--decertification
election was filed with the Board and, based on a Stipu-
lation for Certification Upon Consent Election Agree-
ment , an election was held on March 18, 1983, in the fol-
lowing unit: -
All employees of the- Employer located at 5560
N. Northwest Highway, Chicago , Illinois 60630, en-
gaged in performing lithographic production 'work,
including all general workers, apprentices, journey-
men' and • working foremen; but excluding all office
clerical employees, sales employees and supervisors
as defined in the Act.
The parties agreed to defer negotiations pending the out-
come of the election which resulted in a. 14-to-14 tie
vote. The Union filed timely, objections to the election.
During-the preelection period, Respondent undertook
a campaign to defeat the Union. The Respondent's chair-
man Al Schneider and its president Norman Staar3 held
numerous meetings with employees to this end. They
summoned employees for one- on-one meetings with them
in private rooms or offices and they held numerous meet-
ings with groups of about eight employee's each. There
were also two or three general meetings of all employees
which included not only unit employees but'also nonunit
employees: The-Union also called meetings to exhort em-
ployees to retain it as bargaining representative. In addi-
tion , both the' Union and Respondent exchanged cam-
paign material which was distributed to the employees.
The ' alleged unfair labor practices' herein turn to a
great extent on credibility determinations . • Even where
they do not, the conversations in which the alleged vio-
lations occurred were part of a general campaign . There-
fore, to place the allegations in perspective, it is instruc-
tive to analyze the primary campaign issues on an objec-
tive basis. Accordingly, at the outset, I will discuss the
campaign literature and other documentary material
which has been introduced in evidence, along with cer-
tain background facts which are basically uncontested.
2 Respondent also employ's a group of nonunion employees at its Chi-
cago facility -
2 Staar 's name is misspelled nn the transcript The above is the correct
spelling taken from exhibits which contained his name
In December 1977; Respondent sought '-to obtain the
Union's approval of a so-called ESOP plan for its em-
ployees. In the record it is also referred 'to as an ESOP
plan or a stock option or profit-sharing plan. The Union
rejected ' participation in the plan for,. employees in the
unit represented by it.. Thereafter, Respondent initiated
such a plan for its nonunit nonunion employees.
On March 2, 1983, Schneider promised, in a letter to
employees, that they would not - lose any benefits or
suffer any reduction in wages if the Union did not repre-
sent them. He said that if they rejected the Union "the
very least you will have is everything-you have now."4
In a March 7 letter to employees, Respondent listed
several questions and answers''about' the ESOP plan and
negotiations with the -Union. Respondent noted the
Union's opposition to placing unit employees in. the
ESOP plan and stated that, if the Union were "voted
out," Respondent would be free to include the unit em-
ployees in the plan without the Union's permission. Re-
spondent also stated that employees would be eligible to
participate in the plan once they completed 1000 hours
of employment. Concerning negotiations, the letter stated
as follows:
Q. If 'the majority vote to keep the. Union at
Noral, what will the Union request in negotiations?
A: We have no idea what the Union will request
'from our company 'at the bargaining'table. We do
know what - their proposals are, and-what they are
requesting from the C.L.A. Basically' they are the
same as were announced at the Union meeting.
(Ask the Union leaders .) We did not see anything in
their proposals that suggested their sensitivity to the
economic and market conditions . of our industry in
this geographical area ; or any indication of lan-
guage changes that would promote flexibility.. In
the company's history of- negotiations , we have
found the Union unyielding with- little regard 'to'our
individual situations; e.g.' Fleming%Gilmore- issue;
Ray Salazar; Apprentices; ESOP; Sourek/Schu-
chart'issue ; we could goon and on. We do know
this much, the company will not agree to anything
it feels to be morally wrong, or anything that
doesn't make good business sense to us and our em-
ployees • _
On March 11, Respondent addressed -another letter to
employees pointing out the 'results of a -survey, which
were attached to the letter, by. the Master's Printers As-
sociation , listing the number of union printing shops in
Illinois , which .had shut down. The- letter charged the
Union- with failing to organize'new shops in Chicago and
allowing, nonunion shops to increase. It also charged the
Union with not being responsive _ to - Respondent's. need
for flexibility, for its "unreasonable contract restrictions"
and for not,cooperating "with our requests to add more
-apprentice[s] or to advance apprentice[s] to journey-
men," '
In a•March 14 letter, Respondent told employees•what
things 'would be like if the 'employees voted for the
The Union responded to this letter on March 7, 1983.
NORAL COLOR CORP.
Union The letter noted that it would be meeting with
the Union as an individual employer and not as a
member of the CLA multiemployer group The letter
stated that Respondent did not know what would
happen in negotiations but that the Union's demands to
.the CLA, which were attached to the letter, presaged
."long, difficult, and strained" negotiations, and, in these-
circumstances, the suggestion of some employees that the
Union would simply "roll over" the existing contract
was "unrealistic." Respondent then said that, in view of
the "costly nature" of the Union's demands and the com-
petitive nonunion market, a strike was a "possibility we
can't ignore." Respondent stated that in the event of a
strike it might hire permanent replacements . Respondent
also pointed out the difficulty of strikes and asked the
employees to vote "against the possibility."
On March 15, the Union.wrote a letter to the employ-
ees about certain of Respondent's campaign statements.
With respect to Respondent's position on the compara-
tive benefits of union and nonunion retirement plans, the
letter pointed out certain rules in the existing union pen-
sion plan and the impropriety of using existing pension
funds for IRA contributions. It also stated that the Union
"does not now object to our members being included in
ESOP's." The Union also questioned the numbers used
by Respondent is describing the union and nonunion
shops in the Chicago area. Finally, the Union asked the
employees not to "trade the protection of a union con-
tract for an `Employee Handbook."'
B. One-on -One Conversations Alleged to Be Unlawful
1. Statements 'of Remiker
Employee Michael Remiker5 testified that, during the
first week in March 1983, he was summoned to President
Norman Staar's office. Staar asked Remiker to close the
door and the two of them met privately.6 Staar said he
was a "little disturbed" at how strongly Remiker be-
lieved in the Union. About a week and a half earlier, Re-
miker had indicated to Staar that he had dropped out of
a lucrative betting pool at work because the employee
who ran the pool had initiated the decertification peti-
tion. At that time Remiker told Staar, "I' will always
work in a union shop," and Staar responded that Staar
was "always a winner."7
6 Remiker worked in the 10-man stripping department as did the 3
other employees who testified about alleged unfair labor practices All
four voluntarily quit Respondent 's employ after the election
6 Remiker had never before had a private meeting with Staar in the
latter 's officer
7 Staar had thanked Remiker for dropping out of the pool because this
created a vacancy filled by Staar Thus, management apparently acqui-
esced in the so-called Super Bowl pool at Respondent 's facility The pool
works as follows Beginning in January each participant contributes $5
per week into the pool and picks a winner in the Super Bowl game for
the following January At that point , the proceeds are distributed to the
winner and the process begins - again The proceeds are so "lucrative"
that the limited membership in the pool is highly sought after All this
might be of only minimal relevance in this case except that several
prounion employees, like Remiker , apparently dropped out of, the pool
because its organizer filed the decertification petition , thus highlighting
the division among Respondent 's employees .
569
During their private meeting in Staar's office, Remiker
responded to Staar's statement that-he was disturbed
over Remiker's strong prounion position by expanding
on his views. Staar then asked if Remiker knew he could
belong to Respondent's ESOP or stock ownership plan if
the Union were voted out -He also told Remiker to ask
the Union why he, as a union member, could not partici-
pate in the plan. Remiker said he would. Staar then held
up what he said .were the-Union's contract proposals in
the CLA negotiations. Remiker told Staar that Respond-
ent was in a good position 'because it was bargaining
with the Union "on a one to one basis." Staar responded
that one of Respondent's problems was that it could not
get the Union's approval for more apprentices. Remiker
countered that Staar should try to place that issue on the
bargaining table. At this point, Staar said that the
Union's proposals were "strictly strike material" and that
if there were a strike Respondent would hire replace-
ments. He also said , in a separate part of the conversa-
tion, "if there were no changes and the union was not
voted out . . . someone would have to pay the conse-
quences and be let go and that very well could be you."
Remiker asked if this were a threat and Staar simply
shrugged his shoulders. The- conversation ended with
Staar's remark that Remiker should feel free to ask the
management team any questions he might have.
The day after the meeting in Staar's office, Staar con-
fronted 'Remiker in a- chance meeting in the hallway
leading to the stripping department. Some other produc-
tion employees were also "within the area," but Remiker
did not notice whether'anyone else'overheard their con-
versation: Staar asked if Remiker had any questions
about the meeting the day before. Remiker said he was a
union man , that he would never have any questions -of
-him, but that if he did have questions he would ask his
union '. Staar replied, "If we were to lose the' election
someone would have to be let go and it could be you."8
I credit Remiker's-testimony as set forth above.' Re-
miker impressed me as a straightforward and reliable
witness whose testimony about his meeting with Staar
survived cross-examination. Staar confirmed that he had .
several conversations with Remiker, but he denied
threatening that Remiker "would have to go" if the
Union lost the election and he did not testify at all'about
any remarks concerning the Union's' contract proposals
or negotiations. Staar did not impress me as a reliable
witness: His testimony contained some internal inconsist-
encies and he appeared to be evasive, particularly on
cross-examination . For example,, he testified, that Re-
miker initially told him his mind "was not made up" on
the issue of union representation and that he' would be
willing to "listen to' the issues," an apparent attempt to
explain why Remiker began their private meeting by
asking -questions. Yet- he admittedly summoned Remiker
to -his office because of his "concern" over'Remiker's
'statement that he "could not work for a non-Union com-
pany:" It is much more plausible, in view of Remiker's
strong prounion position, that the meeting did not begin,
6 Remiker began his employment with Respondent on August 9, 1981,
and thus had"less than 2 years of seniority at the time of this conversa-
'tion'
570 DECISIONS OF NATIONAL'LABOR.RELATIONS BOARD -
as Staar testified , with Remiker asking questions. More-
over , on cross-examination , Staar quibbled over whether
Remiker said he did not think he "could" or "wouldn't"
work in a nonunion atmosphere ; and he made a nonre-
sponsive but significant answer to a question . • about
whether Remiker was a "very straightforward"• person
by stating tht he "liked " Remiker and had "saved his job
once" when there was a general layoff . Staar 's volunteer-
ing this information led me to believe that he might well
have made threats of layoff as Remiker testified. Staar
also demonstrated a lack of candor when testifying about
a nonunion company owned by him and Schneider In
these circumstances , I credit Remiker over Staar.
In accordance with my credibility determinations; I
find that Staar twice threatened that Remiker would
"go" or "be let go" and somehow lose his job , at- Re-
spondent 's initiative , if the Union won the election. Such
threats of job loss are clear violations of Section 8(a)(1)
of the Act.
The General Counsel also alleges that the first Staar-
Remiker meeting revealed two other violations : a coer-
cive statement that negotiations with Respondent would
be futile and that a strike would be inevitable; and, a
promise that , if the Union lost the election , employees
would be granted the benefit of participating in Respond-
ent's ESOP plan.,
Staar 's statements about the ESOP plan were not un-
lawful promises . He simply asked Remiker whether he
knew he would be eligible for the plan if the Union were
voted out. This remark must be considered in the context
of the overall campaign in which Respondent argued in
favor of rejection of the Union , in part , on the ground
that its nonunion - employees had benefits which the
union employees did not , and the Union argued in favor
of its own retention , in part , on the .ground that its pen-
sion plan was superior . A campaign statement by Re-
spondent pointed out that the ESOP plan was available
to nonunion employees and that the Union had opposed
inclusion in the plan of union -represented employees. It
was obvious that the plan would also be available to unit
employees if, by virtue of the election , they , rejected the
Union . There was "no promise involved . Nor is it clear
that this 'benefit would outweigh whatever negotiated
benefits would be lost if the Union were rejected. The
Union certainly emphasized to the employees that union-
negotiated benefits were better and , at the end of the
campaign , even acquiesced in approving inclusion of unit
employees in the ESOP plan, The issue of whether the
nonunion ESOP plan was preferable to negotiated bene-
fits was debatable and one for the employees to decide.
Certainly, the employees were well aware that should
the Union be defeated, they would be entitled to the
same benefits given to .other nonunion employees. Any-
thing less would have amounted to discrimination of an-
other sort which might well have jeopardized the favor-
able tax benefits of the ESOP plan I therefore find noth-
ing unlawful in Staar's remarks about the ESOP plan.
Nor, were Staar's remarks about Respondent 's negotiat-
ing position and the possibility of strikes unlawful. In
printed campaign material , Respondent made it clear that
it would bargain ,with the Union if the latter won the
election and that it would bargain - on an individual basis.
It nevertheless cited the Union's proposals to the CLA
and the Union's past intransigence as indications that ne-
gotiations would be difficult and might even result in a
strike. I cannot view Staar 's remarks to Remiker as being
inconsistent with statements concerning strikes and nego-
tiations in the campaign material which were not alleged
by the General Counsel to constitute a violation of the
Act. There was no suggestion by Staar that Respondent
would not bargain in good faith or that it would, by
virtue of such intransigence , force the employees to
strike . • Indeed , the phrase "strike material ," used by
Staar, referred to the Union's proposals to the CLA. Re-
miker knew this because he remarked that in individual
bargaining Respondent would have a stronger hand.
Even though the CLA proposals were not necessarily
those which might have been presented to Respondent, it
was reasonable for Respondent, in the circumstances of
this case , to rely on them as representative of what
might be asked of it, particularly since it was also able to
cite - particular examples of lack of flexibility by the
Union in its past relationship with Respondent. Thus, the
possibility of a strike was reasonably related to the
Union's position rather than Respondent 's. Accordingly,
I find nothing unlawful in ' Staar's remarks concerning ne-
gotiations and strikes . See Butler Shoes New York, 263
NLRB 1031, 1032 (1982). -
2. Statements to Frangimore
Employee Joseph Frangimore .had a private discussion
with Chairman Al Schneider in Norman Staar 's office in
early March 1983. He was summoned to the office,
whereupon Schneider showed him a list of new non-
union shops in the area and told him about union shops
going out of business . Accordingly to Frangimore,
Schneider said that, in order to be competitive, "he
needed the flexibility of-of being a non-union shop so
he could promote his apprentices or hire apprentices and
promote within . . . ... Schneider also' said ^ that "we
would keep everything we had We wouldn 't lose any-
thing:" Schneider did not specifically testify-about this
meeting although he did testify generally that he made
similar - remarks to other employees during the preelec-
tion period. In addition , the theme of Schneider's re-
marks seems similar to that employed in Respondent's
March 11 letter to employees.
The General Counsel alleges that, Schneider's remarks,
as related by Frangimore , amounted to an implied prom-
ise of benefit, namely , that if the Union were rejected
Respondent would promote its apprentices . I disagree. I
do not consider Schneider 's remarks - as a promise but
rather a statement that he wanted flexibility to deal with
apprentices unilaterally and that this could be done more
easily, from his point of view, without a union . He also
tied the whole notion of flexibility to competitive factors
and the -growth of nonunion shops in the area. Nor is
there any evidence that Frangimore viewed the remarks
as a promise or even as a benefit . In these circumstances,
I shall dismiss this aspect of the complaint.
At the end of February ; President Norman Staar sum-
moned Frangimore to a private meeting in his office. Ac-
cording to Frangimore , the meeting went as follows-
NORAL COLOR CORP. 571
A. Well, Norman wanted me to know that if we
voted to get the union out, nothing would change.
They couldn't make any specific promises but ev-
erything would stay the same but as of May 1st,
things would be better.
Q. Did you say anything to Mr. Staar? [sic]
A. Yes, at that time I felt it was beneficial for ev-
eryone for them to discuss with the union the-a
contract. And I felt the way things were going that
a - possible roll-over contract could be very proba-
ble. He was-I don't believe he agreed with me.
Q. What did he say, if you can recall9
A. I think we ended the-
Q. Were your comments to-go ahead.
A. We ended that meeting right there.
On cross-examination , Frangimore acknowledged that
in his pretrial affidavit he had placed the above conver-
sation about a week before the election, but he stated
that, after reviewing his affidavit in preparation for trial,
he recalled that the conversation took place in February.
However, Frangimore stated, both in his affidavit and on
cross-examination , that in this meeting Staar "made no
promises or offers of benefit" to him.
Frangimore also testified that, during the week of the
election, Norman Staar approached him at his work sta-
tion and asked him' how he was going to vote in the
election . Frangimore responded that he was going to
vote for the Union. Staar became upset and said, "You
will have to strike then," and walked away. There may
have been other employees present in the area since, as
Frangimore testified, "that was kind of close quarters."
Frangimore had never before declared his intention as to
how he- was going to vote in the election, although he
had earlier been summoned by both Staar and Schneider
for private one-on-one conversations with respect to the
decertification election.
Staar testified about several conversations with Frangi-
more about the decertification election. He acknowl-
edged that one of these conversations was in his office,
but he said the subject matter of that conversation was
Respondent's ESOP plan and union pensions. He did tes-
tify about a conversation concerning rolling over the
union contract, but he_ said that it took place at Frangi-
more 's workplace. He could place neither of these con-
versations- in any particular time frame. As to the latter
conversation, he testified as follows:
A. I just asked Joe if he had any questions-if he
needed - any information in regards to making a
good decision. He was our first or second employ-
ee. Joe and I had a special relationship I felt. I was
very concerned with him, and specifically in that
area.
Q. Do you recall what-if anything he said, in re-
sponse?
A. Joe said that he would keep an open mind,
saying he wanted to -hear the issues and if he had
any questions he would ask.
Q. Do you have any subsequent conversation on
the subject of the election with Joe at his work sta-
tion? That you can recall.
A. Only-I think Joe had asked about why we-
if-he had asked if the Union . won the election,
would we negotiate and I said yes, we would, and
he had asked , "Well,' why don 't we just do that?
Why is it necessary for this?"
I said , "Well, this is not-this is the employees
doing this , not me ." He asked if-he said that he
thought in his opinion that the Union, would roll
over the contract if we would negotiate, and we
really had-we could just do that . And I said,
"Well, that may very well may be but the informa-
tion that F had did not indicate that they were going
to roll over the contract , that they had specific pro-
posals that they had made , that they had given the
Union members at their. Union meeting, and that
they had given to' the CLA-that they had ex-
changed with the CLA."
Staar could not remember any conversation with Fran-
gimore , during the week of the election concerning the
subject of the election. At one point , Staar denied ever
telling Frangimore that the employees would have to go
on strike: However, immediately thereafter , he testified
as follows:
Q. Do you recall having any conversation with
Joe in which the subject of a possible strike was dis-
cussed?
A. Yes. I had-that was at-that would be at
Joe's work station or thereabouts.
. Q. Tell me his-tell us as best you can recall
what was said in connection with a possible strike?
A. I had asked-I had told or asked Joe or re-
minded Joe that 15 years ago, I had given him a
chance and trusted him, and I was soliciting him to
trust me, and to give me a chance to show him
what we could do under a new situation. •I was
pleading for that support, and he had indicated that
at that time that he could not-or he didn't feel that
he could support it and I was. .
Q. Support what9
A. The company.
Q. Okay. '
A. And I was disturbed by that because of my re-
lationship with Joe and his being a friend of mine
for so long that it bothered me. It bothered me.
Q. What did you do? • _
A. I walked away.
I credit Frangimore's testimony that Staar questioned
him at his work station, as he testified, during the week
of the election. Staar's rather evasive testimony on this
incident supports Frangimore's testimony that when
Staar asked whether Frangimore would support Re-
spondent in the election, and Frangimore said he stated
earlier in this decision, Staar did not impress me overall
as a reliable witness.
Staar's questioning -of Frangimore was violative of
Section 8(a)(1). There was no prior knowledge as to
Frangimore's position on the election and no lawful pur-
pose for the questioning. Nor were there any assurances
against reprisals . Staar was president of Respondent and
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his angry reaction to Frangimore's answer contributed to
the coercive nature of the encounter. Frangimore was
led to believe that his answer, which was unearthed by
inquiry, did not please the questioner. Finally, Staar's
own testimony suggests that his attempt to obtain a fa-
vorable response from Frangimore was something more
than an isolated incident. Accordingly, I find that, in all
the circumstances, Staar's questioning of Frangimore had
the tendency to coerce and was thus unlawful.
The General Counsel also alleges that Staar's further
remarks after Frangimore said he was supporting the
Union-"you will have to strike then"-amounted to a
statement that negotiations between Respondent and the
Union would be futile and. that a strike was inevitable
and thus constituted a violation of Section 8(a)(1). I dis-
agree. Frangimore's testimony about this particular state-
ment was devoid of context and it cannot be inferred
that Staar was referring to the inevitability of a strike
caused by Respondent's intransigence toward legitimate
bargaining positions More likely, the statement was re-
flective of Staar's anger at Frangimore's prounion re-
sponse to coerciveness of the questioning itself. But this
does not mean that the statement about a strike carries a
unique message which is unlawful in and of itself. Thus,
even crediting Frangimore's testimony about this particu-
lar statement over Staar's denial that he told Frangimore
the employees would have to go on strike, I would find
no violation here.
The General Counsel also alleges, as an unlawful
promise of benefit, Staar's statement to Frangimore that
"things would be better" on May 1-the day after the
expiration of the union contract. I accept Frangimore's
testimony on this issue . Neither Frangimbre nor Staar
was particularly accurate on dates but Staar seemed to
confuse the substance of some of his conversations. Fran-
gimore was more certain of the substance of this conver-
sation. Moreover, I found Staar to have been evasive and
unreliable in other aspects of his testimony Frangimore
impressed me as a truthful person who, albeit confused at
times on the stand and a bit slow, attempted to honestly
and reliably tell his story Nevertheless, I note that Fran-
gimore testified that Staar made no promises or offers to
him during their private meetings. This, seems inconsist-
ent with his earlier testimony that Staar said things
would get better after May 1. Perhaps an unsophisticated
employee would not make any connection between a
promise of benefit and a statement that things would get
better, and perhaps Frangimore did not mean his state-
ments to be inconsistent. However, the presence of these
two statements in his testimony raises a question in my
mind whether the "things would get better" statement
was truly meant or understood to be a promise of benefit
for voting against the Union or whether it was simply a
general opinion by Staar that he believed Respondent
and the employees would be better off without a union
than with a union . That Frangimore did not appreciate
the difference seems to argue against finding the state-
ment to be a promise of benefit. Frangimore was not
asked to explain the "things will get better" statement in
view of his additional statement that Staar made no
promise of benefit. In the absence of any such explana-
tion or further evidence on the point, I must find that, in
context , the statement was not a promise of benefit but
rather was a general opinion protected under Section
8(c) of the Act.9
3. Statements of Luecker
On March 1, 1983, employee George Luecker was
summoned by Schneider to meet with him in the sched-
uling department. When he got there, Schneider, who
was alone, invited him in and closed the door Schneider
told Luecker that he needed more flexibility than the
Union could offer and asked Luecker to give the Com-
pany a year to grow. Luecker told Schneider that in in-
dividual negotiations he could ask for all the flexibility
he wanted. At the end of their discussion, Schneider
asked Luecker, "Where do you stand?" Luecker replied
that he had been a union man all his life and that he fully
intended "to stay a union man ." Schneider told Luecker
he respected Luecker's position and the two men shook
hands and parted. Luecker, who had never before met
privately with Schneider, wore a union button during the
preelection period. Luecker also placed a 3-by-5 inch
card on his worktable which read, "Vote Yes.'? Howev-
er, he began wearing the button and placed the sign on
his desk after his meeting with Schneider. Additionally,
prior to that meeting, Luecker had not declared to any-
body how he intended to vote in the upcoming elec-
tion. 10
I find, in accordance with Luecker's credible testimo-
ny, that Schneider's interrogation of him was violative of
the Act. The questioning took place in a private meeting
and was undertaken by the chairman of Respondent. No
lawful purpose for the questioning was apparent and no
assurances against reprisal were offered. Moreover, since
-Schneider asked where Luecker stood on the question of
union representation, he either did not know- whether
Luecker was a union supporter, hoped for a conversion,
or wanted an assessment of his antiunion arguments.
Thus, Luecker was put on the spot and asked to reveal
whether his union loyalties outweighed his loyalties to
the very person who was seeking a response. Such ques-
tioning has the tendency to coerce employees, particular-
ly when undertaken by the highest employer official
who does not normally have private conversations with
employees The questioning of Luecker was thus unlaw-
ful.
9 The General Counsel's reliance on St Francis Hospital, 249 NLRB
180, 190 ( 1980), and C Markus Hardware, 243 NLRB 903, 909-910
(1979), is misplaced as those cases are distinguishable In both cases, the
context of the "things will get better" statements was such that it could
be inferred that the employer meant to promise that it would implement
improved working conditions based on rejection of the union Thus, in
Markus, the supervisor in question explained the statement by stating
"that the employee did not need union representation because [the em-
ployer] intended to institute an employee contract which would provide
employees with everything they needed including scheduled pay raises."
In St Francis, the statement was one of several made in meetings which
included more specific promises which were clearly unlawful Moreover,
in neither case does it appear that the employee who testified about the
statement created an ambiguity , as did Frangimore, by stating that no
promises were made
10 Schneider did not controvert any of Luecker's testimony about their
March 1 meeting I therefore credit Luecker's testimony which was com-
patible with that of employee Berman who testified that Schneider ques-
tioned him in a similar manner
NORAL COLOR CORP 573
4 Statements to Berman
In early March, employee Andrew Berman was sum-
moned to speak with Chairman Al Schneider in Plant
Manager Ron Shore's office. Only Berman and Schnei-
der were present. The conversation lasted a little over an
hour Schneider asked Berman to be seated and proceed-
ed to tell, him how important it was to Schneider that the
Union be decertified According to Berman, Schneider
said that "if we were not under a contract . . . we could
go to a 40 hour week which would give us five hours
extra a week," and that this would mean "extra money in
my pocket." Schneider explained that by working with-
out a contract Berman would be able to work 5 hours
more per week and earn $4000 more per year, whereas,
under a contract, the employees would not be able to
work "that much" overtime and "wouldn't be able to
make that much money." Under the union contract, the
employees worked a 35-hour week. Schneider spoke fur-
ther about his opposition to the Union and, later, as
Berman was getting ready to leave the office, Schneider
asked Berman how he was "going to vote." According
to Berman, Schneider also asked.
Was I with Noral? Was I going to give Nora] a
year? Or was I going to go with the Union? He
asked me, "Noral wants your help. We would like
to know how you are going to vote. Are you going
to be with Noral or not?" And I said that I have a
few things that I have to talk about, I had to think
about it with my wife; and he said if I had any
more questions, just to talk to him; and I left.
On • a second occasion, also in early March, several
days after the first conversation, Berman was summoned
to President Norm Staar's office to meet with Schneider.
Only Schneider and Berman were present. The conversa-
tion lasted about 30 or 40 minutes. Schneider asked
Berman to sit down and again proceeded to campaign on
behalf of decertifying the Union, stating that "this was,
the clean way out of getting out of the Union." Berman
testified that:
[Schneider] waved some papers and told me that
these were the proposals that the Union had given
him, and they couldn't live with them, they
wouldn't negotiate with them, and it would come to
a strike. He said that whoever would want to stay
would stay, and whoever didn't, they would just fill
with out personnel. He brought some statistics out
from the PIA about shops going down, union shops
down and non-union shops going up, told me that
my place was with Noral.
According to Berman, the remainder of the meeting
went as follows:
Again, I started not to pay much attention. As I
was again getting ready to leave, he again confront-
ed me, asking me how I was going to vote, whether
I was going to give- Nora] this year's chance that
they kept talking about, or if I was going to be with
the Union. -
I said, "Al, I really don't know. I still have things
to talk about." And he said, "Well, what is your
problem? Why aren't you coming up with a deci-
sion? What is keeping you away? Why won't you
go with Noral?" And I said, "Well, there is a lot of
things I have to talk about I still have to think
about it, and I have a family to worry about, my
wife." He says, "Well, is it security?" I says, "Yes,
it is." He say, "Well, you have got a job with
Noral; you have always got a job with Noral. We
will always have a place for you," Upon that, I left.
Schneider conceded that he had two meetings alone
with Berman in a management official's office at the
plant between March 5 and 15. :Ie acknowledged that
Berman was summoned to the office each time. He
denied interrogating Berman. Schneider testified that in
their first meeting he asked Berman if he had any ques-
tions-and that Berman asked if Respondent would "go to
a 40 hour week if we were non-Union." Schneider said
he would not, but that nonunion shops could do so and
this put them at a competitive advantage. He also men-
tioned the inflexibility of operating with a union, particu-
larly during a slow period such as Respondent had been
experiencing. Schneider confirmed Berman 's testimony
that Berman did not say much during their first conver-
sation. Schneider also testified that he asked Berman "to
give us an opportunity to show him what we could do
[as] a non-Union company, and with that he volun-
teered a statement by saying that he is confused
[that] he was like right in the middle."
At their second meeting, according to Schneider,
Berman asked about whether he could be guaranteed a
place on a sophisticated new machine if Respondent ob-
tained one. Schneider commented that he would be a
candidate for operating the machine but that the question
was premature. Schneider also told Berman that he had
the Union's proposals in the CLA negotiation and that
they "scare[d]" him. He suggested that Respondent
would be a tough bargainer in its negotiations with the
Union.
I credit Berman 's testimony that, at each of his meet-
ings with Schneider, Schneider asked him if,he would
vote for the Union or support Respondent Berman's tes-
timony concerning these interrogations survived cross-
examination and seemed reliable. Schneider did not deny
interrogating Luecker. Based on Schneider's demeanor
and the way he testified, I canot believe he resisted
asking Berman how he stood on' the election. He was
very loquacious and seemed determined to oust the
Union on the basis of one-to-one campaigning. Accord-
ingly, I found his testimony to be less reliable than Ber-
man's on the segment of their meetings dealing with in-
terrogations.
In accordance with this credibility determination, I
find that Schneider's interrogations of Berman were co-
ercive and violative of Section 8(a)(1). The interroga-
tions of Berman were undertaken in lengthy private
meetings with Respondent's top official whose objective
was to demonstrate why the Union should be rejected.
There was no lawful purpose for the questioning and no
assurances against reprisal. Moreover, there were repeat-
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed questions which resulted in noncommittal responses.
Berman 's position in the election was not known at this
time and , in the circumstances , the questioning was un-
lawful.'
The General Counsel also argues that Schneider's
comments about going to a 40-hour workweek amounted
to an unlawful promise of benefits . I disagree . First of
all, Berman specifically testified that Schneider used the
words "if" and "could " in describing what might happen
if the Union were not in the picture . But he made no de-
finitive statements concerning expanding to a 40-hour
workweek . Schneider stated , that the employees could
work a 40-hour workweek instead of the 35 -hour work-
week they presently worked under the union contract.
Under the union contract , Respondent was required to
pay overtime rates for every hour worked over 35.
Absent a contract , Respondent would be able to pay
straight time rates for 5 extra hours , just as Respondent's
nonunion competitors. Schneider simply pointed out the
obvious to Berman , that it would be economically more
feasible to pay 40 hours worth of wages at straight time
than 35 hours of straight time plus '- 5 hours of overtime
pay and that the employees might come out better over-
all by working 40 hours of straight time as opposed to 35
hours of straight time. There is certainly no requirement
that an employer work employees 40 hours , per week
when 5 ' of those hours must be paid at premium rates.
Accordingly , even accepting Berman 's testimony on this
point , I see nothing'in the way of an unlawful promise in
these remarks.
The General Counsel also alleges that Schneider's re-
marks amounted to a statement that negotiations would
be futile and that a strike would be inevitable . I- also dis-
agree on this issue. _
I cannot totally credit Berman 's testimony with re-
spect to what was said about negotiations and strikes. He
attributed to Schneider the statement that he would not
negotiate with the Union and stated that Schneider did
not identify the contract proposals he was holding as the
Union 's proposals ,to the CLA. This is contrary to Re-
spondent 's stated position , in its campaign material and it
is also contrary to Remiker's testimony concerning what
Staar had told him about this same subject . Nor can I be-
lieve that Berman , 'who-impressed me as a - very knowl-
edgeable person , especially about the Union 's positions,
did not know about the Union 's CLA proposals at least
as a general matter. On this issue , I believe Schneider's
testimony is closer to what actually was said ,' which, in
my view , was essentially as follows : "The Union's pro-
posals to the CLA are unacceptable to us , - and, if pre-
sented to us and , adhered to , could cause a strike ." Since
there was no suggestion that Respondent would not bar-
gain in good faith ' or that a strike would inevitably flow
from Respondent 's unlawful conduct , I do not believe
that Schneider 's remarks were unlawful and I shall dis-
miss this aspect of the complaint.
The General Counsel also- alleges that , on several oc-
casions during the preelection period , Respondent,
through Vice President George Henzler , promised em-
ployee Berman that it would obtain a SITEX machine
which he would `operate and threatened that it would
not buy such a machine , each of which depended on the
outcome of the decertification election. Berman testified
that he had had some training on the SITEX machine-a
computer-type color separation machine which electroni-
cally performed the type of work Berman was assigned.
He had spoken about the machine to Henzler and
Schneider on a number of occasions both before and
after the election petition was filed. He had been talking-
to them about this subject for about a year or longer and
had expressed his interest in working on such a machine
if Respondent purchased one. Henzler had indicated that
Respondent might buy such a machine, which- costs
about $1 million, "when they could afford it."
According to his own testimony , Berman initiated
three conversations with Henzler about the SITEX ma-
chine during the period between the filing of the decerti-
fication petition and the election itself. The first conver-,
sation took place about March 1, shortly before Berman
was to attend a joint union management -sponsored train-
ing course concerning the use of a SITEX machine:
There was simply a general discussion in that conversa-
tion. During the second of their conversations, Henzler
told Berman that he was the type of person Respondent
would want to operate the SITEX machine . Henzler also
told Berman that if "the Union was still here," Respond-
ent would "not be able" to buy the machine' because of
union restrictions . Berman responded that , in' his view,
the Union was being very flexible on employer use of
such machines . Henzler replied that he could not "see
spending all that money" on a machine in a union shop.
According to Berman, the third conversation was pretty
much like the second.
Henzler testified about a conversation he had with
Berman in early March about the SITEX machine. The
focus of the conversation was flexibility in manning the
machine . Berman said that the Union had permitted an-
other company , whose employees it represented , consid-
erable flexibility with its machines. Henzler replied that
Respondent would not necessarily operate the same way.
Berman also asked whether Respondent would place the
machine in a union shop. Henzler indicated that, based
on past experience with the Union , there was some
doubt whether the Union would be sufficiently flexible
on the manning of the machine. He cited the situation
where the Union had objected to Respondent's attempt
to utilize variable starting times . He said, "if I was going
to go out and spend a million dollars on a piece of equip-
ment . . . I would be very leery of putting it into a shop
where I was dictated how and what I would have to
man it with ." Henzler also testified that Berman often
discussed the SITEX machine issue with him and that
Berman tried to "manuever" Henzler "to commit to him
that I would give him a position on it."
I found the testimony of Berman and Henzler to be
substantially compatible although each shaded the con-
versations toward their own self-interest. My assessment
of the testimony on this issue is that no promises or
threats were made based on the outcome of the election
or Berman's vote in that election.
As to the alleged promise , it is clear that Berman had
a continuing interest in operating the machine and had
attempted to convince Henzler not only to buy the ma-
NORAL COLOR CORP 575
chine but to assign him to work on it This predated the
filing of the decertification petition. When Berman con-
tinued to press the matter during the preelection"period,
Henzler attempted to deflect Berman's importunings. No
decision had been made either to purchase the machine
or to assign a particular person to the machine. Howev-
er, it was obvious because Berman had expressed interest
in the machine, had trained on it, and was a leading can-
didate for this assignment. Thus, Henzler simply told
Berman the truth-he was a good candidate for such an
assignment should Respondent buy a machine This com-
ment was not based on rejection of the Union or Ber-
man's vote in the election. There was thus no unlawful
promise of benefit. _ -
As to the alleged threat, the issue of whether Re-
spondent would buy a SITEX machine had not been re-
solved Surely, Henzler's expressions of concern over,the
Union's flexibility in manning requirements were legiti-
mate ones He never definitively said that Respondent
would not purchase the machine. He simply expressed
his opinion, based on a specific past example, that he was
concerned about whether the Union would permit flexi-
ble manning requirements for the machines. Employees
need not be insulated from concerns of this type particu-
larly where, as in this case, a decision to buy new equip-,
ment meant a substantial investment by 'Respondent and
there was a legitimate concern about an incumbent
Union's manning requirements incident to such a deci-
sion. Henzler pointed out that the Union's flexibility
would be a factor in the decision 'Berman was thus able
to decide for himself whether the Union would be flexi-
ble enough to make it possible for, Respondent to buy`
and utilize a SITEX machine. Accrdingly, in my view,
Henzler's remarks did not amount to a threat of retalia-
tion-failure to purchase a- SITEX machine-if the
Union were retained.
lar. allegation, that Schneider made no unlawful promise
of benefit, but was simply pointing out an existing benefit
for nonunion employees which would naturally be avail-
able to unit employees if they became nonunion employ-
ees: I shall therefore dismiss this allegation of the com-
plaint.
The second allegation is that, at a small group meeting
held on March 16-2 days before the election, Schneider
made unlawful statements about negotiations and a possi-
ble strike. This too was based on the testimony of Fran-
gimore who testified that he could not recall anything
about the meeting except how it ended. Luecker also tes-
tified about this matter. According to Frangimore,
Schneider said that there was a "clean way and a dirty
way" to handle union representation. The "clean way"
was to vote out the Union and the "dirty way" was to
vote for the Union "and have a probable strike." Frangi-
more insisted that Schneider referred to a "probable"
strike but he conceded that Schneider said, "nobody
wanted [a strike] to happen." Likewise Luecker could
not recall many details concerning this meeting; He testi-
fied that Schneider asked the employees to "give [the
Respondent] a year to grow," mentioned the ESOP. plan,
and stated that "a vote no is a vote in' the right direction
and a vote yes is a probable strike."
Schneider also testified about this small meeting al-
though he placed the meeting earlier in the week.. He
testified that he distributed Respondent's March 14 letter
dealing with the Union' s bargaining positions and invited
questions. Schneider said he did not think there was
going to be an "easy" contract and that he felt "it-was a
very dangerous situation there." He referred to a rumor
that "if we. lost . . . we would not negotiate" and specif-
ically rejected the rumor as "ridiculous." He continued
as follows:
C. Statements Made in Group Meetings:
The General Counsel also focuses on four alleged un-'
lawful statements made by management officials to em-
ployees in group meetings . In my view , the evidence
submitted does not warrant findings of a violation as to
any of the allegations
The first allegation is that Al Schneider promised ben-
efits by telling employees that they would be eligible for
Respondent 's ESOP program if they went nonunion.
This statement was made at the end of a group meeting
which occurred around the first part of March , accord-
ing to employee Joseph Frangimore . Although Frangi-
more testified in some detail about another subject which
was discussed during • this meeting-"rolling over" the
present contract , he could not place Schneider's remarks
about the ESOP program in context or give any further
details When asked if Schneider said -'anything else about
the ESOP . Frangimore said , "Not that I can recollect,
no. Just that we could have it." Schneider testified that
he referred to the ESOP plan on " several occasions
during the campaign . ; He stated that he generally noted
that it was available to the nonunion employees and that
the Union had prevented Respondent from extending it
to the bargaining unit employees. In these circumstances,
I believe, as• I have stated elsewhere in discussing a" simi-
I said you can see what the situation is though. I
am deathly, scared of it. This is the-what is left of
the CLA because the separaters 'broke away from
that group. That is what they are proposing. We
would propose more, because .
Q We being who?
A. We meaning the separating part companies,
because we have got more things working against
us than the web printers do which is essentially
;what the CLA is all about. I ,says, "That in itself
would be-" You know, seeing what the employees
with the CLA • are proposing,' I said the Union
wouldn't-has never been flexible, to something like
that, and what the Union is proposing-I said they
have got real problems there.
I says, "You have got a possible strike situation
the-way that-with what is on the table, if it is any-
thing close to that." I says, "We would-it would
be a worse situation. We would have to add to
that," and you know I felt it ,would be a lot cleaner
way what we are doing here right now than what is
going-what would happen with what we would
have-the problems we . would have to contend
with going across the table with the issues that we
have to straighten out in the separating industry.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schneider denied stating at any time that if the Union
won the election there would inevitably be a strike. -
Schneider's testimony, about this conversation was
more detailed than that of Frangimore and Luecker. It
was also compatible with Respondent's. March 14 letter-
regarding its position. on negotiations and the possibility
of a strike Thus, I found Schneider's testimony more re-
liable on this issue than Frangimore's and Luecker's. An
analysis. '0f Schneider's testimony makes it clear that he
did not threaten that he would not negotiate or cause a
strike by his own intransigence. Accordingly, as I 'have
stated in rejecting a similar contention elsewhere in this
decision, Respondent'has-not violated the Act by virtue
of Schneider's statements concerning negotiations and'
strikes.
The third alleged statement of misconduct made in
group meetings was related by employees Remiker and
Luecker. The meeting"at issue was held in early. March
19831i and, during the meeting, management officials in-
vited questions from the employees. The General Coun-
sel asserts that Respondent's officials promised a benefit,
namely, that Respondent would go to a 40-hour work-
week and thus provide employees with greater earnings
if the Union were rejected.
According to'Remiker and Luecker, Don Slattery, a
foreman but a member of the Union and the bargaining
unit, asked about rumors that, if the employees "went
non-union," 'Respondent would go to a'40-hour work=
week. Vice President 'Henzler responded, according to.
both employees, that there ' was a "possibility" that this
would happen and, if Respondent did so, it could mean
an extra $4000 per year for each employee. Henzler and
President Norman Staar also testified about this incident.
Henzler testified that he told Slattery that he could not
determine whether Respondent would move to 40 hours
per week but he cited some examples of people working
at nonunion shops who stated that they preferred the ad-
ditional income of 40 hours per week rather than the 35
hours which Respondent's employees worked. He also
cited that working 5 extra hours a week would amount
to an additional $4000 per year. Staar basically corrobo-
rated Henzler on this point. ' -
I believe the testimony of all four witnesses was basi-
cally compatible. However, I' do not believe Henzler's
statements on this issue were unlawful, as I have indicat-
ed in an earlier discussion of a similar statement. First of
all, as both ' employees testified, Henzler's remarks were
made in answer to a question from the floor and they
were couched in terms of a "possibility" of-going to a
40=hour workweek. Thus, the question was asked and an-
swered in hypothetical. terms. Furthermore, as I have in-
dicated earlier, the statement itself- was not a promise of
benefit but rather was a proper reflection of what might
happen if the Union's contract restrictions on overtime
pay and workweek hours were removed. This was a le-
gitimate campaign issue and none of the employees could
have regarded Respondent's position as a promise of ben-
efit. Some employees might well have viewed working 5
" iiuecker testified that the meeting took place in February, but it is
clear from the substance of his testimony that he was relating details
about the same meeting that Remiker testified about in early March
extra hours at straight time rates as a burden and would
have preferred to stick with the Union's contractual re-
quirements. In these circumstances, Henzler's remarks
were not unlawful promises of benefit.
The last allegation is that; in another group meeting-
one held with Respondent's accountant and with all unit
employees present to hear discussion about pensions and-
IRA accounts, Schneider stated that, if the Union were
voted out, the unit employees would be eligible to par-
ticipate in Respondent's ESOP plan, that Respondent
would contribute an extra $65,000 to the plan and that
Respondent would count an `employee's prior time with
Respondent towards the ESOP program. This was based
on the testimony of employee Remiker. Schneider denied
making' the- statement attributed to him and denied that
there was any discussion about ESOPs in the meeting
with the accountant as described by Remiker. Plant
Manager Ron Shore and Vice President Henzler, who;
as Remiker agreed, were present at this meeting, said
that they did not hear Schneider make the statement-
at-tributed to him by Remiker. Schneider did, however, ac-
knowledge that; at one or more of the small group meet-
ings , he may have responded to a question about the
ESOP program ,by stating that he wanted all nonunion
employees to belong to the ESOP program and that the
employees should use their common sense as to whether
they would be eligible for the program after they reject-
ed the Union.
The conflict between Remiker and Schneider presents
a close question on credibility. Remiker impressed me as
a candid and reliable witness whose testimony was direct
and unwavering. Schneider was very detailed and sin-
cere in much of his testimony. But I found him to have
been unreliable when ' testifying about interrogations
which he was accused of having engaged in and which I
found had occurred. Moreover, he seemed, in some in-
stances, to be testifying about his views, generally, rather
than what was said in any particular conversation. In ad-
dition, it seemed to me that Schneider, who was often
voluble on the stand, was less forthcoming when testify-
ing about this allegation. Indeed, it is acknowledged that
the issue as a general matter came up often at group
meetings. Thus, if the matter was solely a one-on-one
credibility issue between Schneider and Remiker,'I might
be inclined to credit Remiker. -
- However, to be balanced against the above analysis is
the following. Shore and Henzler, who were not effec-
tively cross-examined on this issue, testified they did not
hear the remark attributed to Schneider by Remiker. It
is, of course, possible that the remark was made but that
Shore and Henzler did not hear it. However, according
to Remiker, in addition to Shore, Henzler, and Schnei-
der, all 28 unit employees were present at this meeting.
It would be unusual that no one would be available to
testify to corroborate Remiker. This failure to corrobo-
rate must be deemed significant in a close question of
credibility. It is all the more significant because, in an ex-
change on cross-examination , Remiker acknowledged
that, when he gave a pretrial affidavit to the General
Counsel,.he.was unable to specify-the meeting at which
the Schneider remark was made. It is thus possible that
NORAL COLOR CORP - 577
Remiker heard the remark at another meeting or in other
circumstances At the very least doubts are raised about
the incident. On balance, I find it difficult tb'•credit Re-
miker's account without some corroboration. In these
circumstances, I do not believe that the General Counsel
,has proved a violation by a preponderance of the-evi-
dence.12
D The Election Objections
Based on my findings of unfair labor practices commit-
ted by Respondent during the preelection period, I find
that the election of March 18, 1983, was not fair and free
from coercion. Respondent's officials coercively interro-
gated three employees in a formal setting as part of a
pattern of one-on-one meetings with all employees. In
addition, Respondent's president twice threatened an em=
ployee with loss of- his job if the Union were selected.,
Respondent made a determined and comprehensive effort-
to defeat the Union and, although most of its campaign
statements were unlawful, the intensity of the campaign
and the admitted effort to talk to each of the employees
make it highly probable that the unlawful statements
were transmitted to the entire unit Moreover, the record
is devoid of any evidence from which I could infer that
the impact of these statements was limited to those em-
ployees who testified. See Petaluma Convalescent Hospi-
tal, 271 NLRB 412 fn. 1 (1984). In these circumstances, I
find that a new election is required to ascertain the views
of the employees free from coercion.
12 In addition to the foregoing which were submitted as violations by
both the General Counsel and the Charging Party Union, the Union
alone contends that certain written documents issued by Respondent
during the preelection campaign violated the Act These allegations are
as follows (1) "A Personal Policys [sic] for Covering Non Union Em-
ployees" booklet issued by Respondent in early March contained unlaw-
ful promises of benefit, i e , raises, inclusion in ESOP, and expansion to a
40-hour workweek, (2) Respondent's letter of March 7 contained an un-
lawful promise to include employees in the ESOP plan, and (3) Respond-
ent's letter of March 14 threatened a strike and depicted union represen-
tation as futile
The Union alleges that items (1) and (2) above are covered under sec
V(r) of the complaint, which alleges that "Respondent; in a notice to its
employees, promised benefits to its employees" and that item (3) above is
covered by other allegations which, in my view, do not fairly encompass
the letter referred to In any event , the statement about strikes and nego-
tiations in the March 14 letter is no different from those uttered by offi-
cials of Respondent which were specifically alleged as unlawful and
found elsewhere herein to have been lawful
In addition , the written statements alleged by the Union as promises of
benefit are no different from similar oral statements made by Respond-
ent's officials which I have found not to be unlawful I see no reason to
rule differently on written statements than I have on the oral statements
Finally, although the personnel policies booklet presents a somewhat dif-
ferent set of circumstances than considered in the oral statements of Re-
spondent's officials, I find no violation here either The booklet was
punted in March and distributed only to nonunion employees It merely
detailed certain rules and regulations and benefits applicable to nonunion
employees There is no evidence that the booklet was directed at or dis-
tributed to the union -represented employees Thus, I cannot construe the
benefits listed therein as having been promised to the unit employees or
to have been tied to the election
- Lastly, to the extent that the . Union alleges that these written docu-
ments constitute objectionable conduct even if they do not also amount
to unfair labor practices , I do not reach the issue I will set aside the elec-
tion results based on the unfair labor practices found herein
E The Bargaining Order
The General Counsel asserts that Respondent's unfair
labor practices not only warrant the a overturning of the
election but were so serious as to negate the possibility
of a free election in the future and, thus; under the Gissel
case, 1 3 a bargaining order should be imposed to reflect
the Union's preelection majority status. I disagree. Re-
spondent's unfair labor practices were serious, but, in my'
opinion, there is no reason to believe that a free election
cannot, be held after Respondent posts an appropriate
notice and complies with a cease-and-desist order. I do
not believe that. the unfair labor practices are of the type
which would linger. Nor-do I believe Respondent's offi-
cials would repeat their misconduct in the face of a
cease-and-desist.order, particularly since all four employ-
ees who testified about= the unfair labor practices have
voluntarily left Respondent's employment. Accordingly,
I, will not approve a bargaining order remedy - in this
case.
CONCLUSIONS OF LAW - ,
I By coercively interrogating employees and 'by
threatening reprisals if employees voted for union'repre-
sentation, Respondent violated Section 8(a)(1) of the Act.
2. The above violations constitute unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
3: The above -violations, which were also alleged as
objections to the election of March 18, 1983, in Case 13-
RD-1475, interfered with free choice in that election and
required the election to be set aside.
4. The above violations were not sufficient to justify a
bargaining order
5. The Respondent has not otherwise violated the Act.
THE REMEDY
.I shall recommend that Respondent be ordered to
cease and desist from the unfair labor practices found
and to take certain affirmative action necessary to effec-
tuate the policies of the Act. Since I have also found that
Respondent's unfair labor practices interfered with the
election of March 18, 1983, I shall order that the election
be set aside and that a new election be conducted in
Case 13=RD-1475.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed 1'1
ORDER
The Respondent, Noral Color Corporation, Chicago,
Illinois, its officers, agents , successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
union views or activities.
13 NLRB v Gissel Packing Co, 395 U S 575 (1969)
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules. be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses -
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening employees with discharge or other re-
prisals for, engaging in union activities or choosing union
representation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of.the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. -
(a) Post at its Chicago, Illinois .plant copies of the at-
tached notice marked "Appendix."15 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall. be taken by the Respondent to ensure
that the notices are not -altered, defaced,-or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
IT IS FURTHER ORDERED ' that the representation elec-
tion conducted on March 18, 1983, in Case 13-RD-1475
16 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
is set aside -and that Case 13-RD-1475 is remanded' to
the Regional Director for Region 13 for the purpose of
conducting a new election at such time as he deems ap-
propriate. •
IT IS FURTHER ORDERED that the allegations of the
complaint in Case 13-CA-23136 as to which violations
were not found are dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government ,
The National Labor Relations Board has found that we
violated the National Labor Relations. Act and has or-
dered us to post and abide by this notice.
WE WILL NOT' coercively interrogate our employees
about their union views or activities. -
WE WILL NOT threaten employees with discharge or
other reprisals for engaging in union activities or choos-
ing union representation. '
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of their rights under Section 7
of the Act. •
NORAL COLOR CORPORATION