General Industries Electronics Co.

National Labor Relations Board - Board Decisions

May 28, 1965

152 N.L.R.B. 1029 (N.L.R.B. 1965)

GENERAL INDUSTRIES ELECTRONICS COMPANY 1029
General Industries Electronics Company and International Broth-
erhood of Electrical Workers, AFL-CIO. Cases Nos. 26-CA-
1830 and 26-RC-2020. May 28,1965
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On January 22, 1965, Trial Examiner Eugene F. Frey issued his
IDecision in the above-entitled proceeding, finding that the Respondent-
Employer had not engaged in the unfair labor practices as alleged, and
Tecommending that the complaint be dismissed in its entirety, as set
-forth in the attached Trial Examiner's Decision. He also recom-
mended that the Board overrule the Petitioner's objections to the elec-
ttion and certify the results thereof. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and a, brief in support
thereof.
The Board has reviewed the rulings of the Trial Examiner made at
-the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner in Case No.
26-CA-1830, and orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
[The Board certified that a majority of the valid votes cast in the
election in Case No. 26-RC-2020 was not cast for International Broth-
erhood of Electrical Workers, AFL-CIO ; and that this labor organi-
zation is not the exclusive representative in this unit.]
MEMBER BROWN, dissenting:
After carefully examining and considering the Employer's conduct
in the context of the entire election campaign, I am impelled to the
conclusion that the campaign exceeded permissible bounds.
During the critical period, between the date of the first election and
the conducting of the second, Respondent announced a wage increase
in December to take effect the following July, invited air-conditioning
contractors to visit and inspect the plant throughout April and May,
granted additional insurance coverage, posted a notice that contained
a threat to withdraw existing benefits once bargaining commenced,
152 NLRB No. 100.
1 030 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
and systematically conducted interviews in which each employee was
reminded of the previously granted wage increase. Further, Respond-
ent introduced the theme of strike violence at the gathering of employ-
ees on May 13, after the election had been directed, by recounting an
anecdote involving a union other than the Petitioner, and by its reuse
of posters that had been displaced prior to the first election. Finally,
since the employees had already been subjected to similar interfer-
ence,' it would appear that they would be more sensitive to employer
suggestions and would thus respond to the present appeal to their fears
of physical and economic harm by being vividly reminded of the prior
campaign. Therefore, it is abundantly clear that Respondent's con-
duct during the critical period was designed to reward its employees
for having rejected the Union in the first election and to induce them
to vote against the Union should a second election be directed .'2
Accordingly, I would find at least that the Employer's conduct inter-
fered with the free choice of the voters, and would require that the
election be set aside.
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion, Order, and Certification of Results of Election.
1 General Industries Electronics Company , 146 NLRB 1139.
2 Northwest Engineering Company, 148 NLRB 1136.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this case are whether (1) Respondent, General Industries Electronics
Company, violated Section 8 (a) (1) of the National Labor Relations Act, as amended,
29 U.S.C. 151, et seq. (herein called the Act), by granting its employees increased
hospital insurance benefits, promising them wage raises and improved working condi-
tions, and warning them of possible strikes, with violence and injury, and loss of
benefits, all within a period of a month before a second election set by the Board for
May 27, 1964, to induce them to refrain from becoming or remaining members of
the above-named Union or voting for it in the coming election; and (2) such conduct
interfered with the employees' freedom of voting choice sufficiently to warrant the
results of the election being set aside and a new election ordered. These issues arise
on a complaint issued by the General Counsel of the Board on July 16, 1964,1 and
the answer of Respondent thereto which admitted jurisdiction but denied the com-
mission of any unfair labor practices, and, in Case No. 26-RC-2020 on a Board
Order of September 3, 1964, directing a hearing on objections Nos. 1 through 6 filed
by the Union after it lost the election of May 27, 1964.
Pursuant to notice a hearing on the issues was held before Trial Examiner Eugene
F. Frey at Memphis, Tennessee, on September 9 and 21, 1964, in which all parties
participated fully through counsel or other representatives. At the close of General
Counsel's case-in-chief, the Trial Examiner granted Respondent's motion to dismiss
so much of the complaint as charged Respondent with an unlawful grant of increased
hospital benefits; the reasons therefor are set forth below. Other motions of Respond-
ent to dismiss the complaint on the merits, on which decision was reserved at the
close of the testimony, are now disposed of by the findings and conclusions in this
Decision. At the close of the case, counsel for the General Counsel presented oral
argument on the record, and thereafter Respondent filed a written brief, all of which
have been carefully considered in reaching this decision.
1 The complaint issued after Board investigation of charges filed by the Union on
June 1 and July 15, 1964.
GENERAL INDUSTRIES ELECTRONICS COMPANY 1031
Upon the entire record in the case and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Arkansas corporation with its plant and principal place of busi-
ness located in Forrest City, Arkansas, where it makes fractional horsepower motors.
In the last 12 months Respondent has bought and received materials at that plant
valued in excess of $50,000 directly from points outside Arkansas , and in the same
period sold and shipped finished products valued over $50,000 directly from said
plant to points outside the State . I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The above Union is a labor organization within the meaning of Section 2(5) of
the Act.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
A. The representation case
This case arises out of Case No. 26-RC-2020, in which a consent election was
conducted by the Board on September 27, 1963, which the Union lost, thereafter
filing objections to conduct affecting the results of the election. After arguments on
that point before the Regional Director and the Board, the Board on April 28, 1964,
set the election aside and ordered a second election. By letter of May 4, 1964, the
Regional Director advised the parties that the election would be held May 27. The
Union lost, and thereafter filed seven objections to conduct affecting the results of
the election; the first six rely essentially on the same conduct charged as unlawful in
the complaint.2
B. Respondent 's conduct before the second election
1. Alleged promises of wage increases
The record shows that: Starting in the week of April 20 , 1964, and continuing
through May 22, Forrest City Personnel Director William Hayes called about 300
employees out of a work force of approximately 337 into his office, one by one, and
advised each in a short interview that each one would get a 5-cent raise ( or other sum
in some instances ) on July 6, 1964, as he had announced to the employees in a previ-
ous meeting . He asked each employee if he or she understood the amount or had
any questions about the raise; if there were questions, he answered them, pulling the
worker's personnel file if necessary , and if there were none, that ended the interview.
Hayes did not interview workers in the week of May 25 because of unusual , one-time
additional duties in connection with the election , but resumed the interviews of the
remainder of the force at work in following weeks and thereafter as workers returned
from leaves of absence . General Counsel claims these preelection raise announce-
ments in personal interviews were effective implied promises of wage raises calculated
to induce employees to forgo voting for the Union ,3 because they were timed and
concentrated in the period just before the second election, rather than shortly before
the raise took effect in July. He says they were also unusual in that this was the first
time Respondent had ever announced raises in this personal fashion to employees.
Respondent 's defense is that the announcement in this fashion was consonant with
its standing policy of personal announcement of wage raises and other changes in
working conditions , and of holding conferences with employees on all aspects of their
employment . In support of this, Respondent adduced credible proof showing that,
since the plant started operations in 1960, it has been management policy to advise
each worker personally when his rate of pay changed in any way . Thus, when employ-
ees are hired they are told in the initial interview their starting rate and that at 3-month
intervals thereafter they will receive fixed routine raises so that at the end of 9 months
they will be at the top pay for their job. They are also told that they would receive
2 Objection No. 7 is not before me, as the Regional Director's recommendation that
It be overruled was adopted by the Board
8 The claim must be based on an implied effect, because there is no proof that Hayes
mentioned to any worker the Union, its campaign, or the coming election in any way.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other raises from time to time. In addition , the method of granting raises was
explained to the whole work force by Hayes once in 1960 . When Respondent granted
its first wage raise of 5 cents an hour "across the board" in 1961 , it was announced
in general fashion ; the personal interview policy was not followed because manage-
ment was then occupied in the process of getting the plant in smooth operation, the
work force was still building up, and it was felt that there could be no question in
workers' minds about a fixed-sum raise of the same amount to all. In May 1962
Hayes announced to all employees at a meeting that they would get a three-step per-
-centage raise , the first being a 5-percent raise in the first week in July , the second in
the first week in January 1963, and the third in the first week in July 1963. He did
not announce the percentages for the second and third steps, but told them that any
questions = about the first raise would be, answered in individual interviews with work-
ers in the near future , that they could also come in at any time to talk to him person-
ally about it . During May and June, Hayes' normal personnel duties suddenly
increased due to recall of about 60 workers and hiring of about 50 new workers, all
of whom had to be interviewed and processed quickly,4 hence he was compelled to
forgo scheduled formal interviews with all workers as promised , but instead posted
a notice to workers early in June that "rate increase information" was available to
them in his office . At the same time he prepared a detailed list of the pay changes
for each employee for each of the three-step raises , and used it as a quick reference
from which he answered questions of about 100 employees about the amounts of
their respective raises, when they came to the office in the next few weeks ; he also
gave the same information to many others who questioned him at times in the plant;
and when he could not recall the exact figures from memory, he had the worker come
to the office where he gave it to her from the list. He continued to have inquiries,
and answered them in this fashion, for some time after the first raise went into effect
in July. From the number of inquiries he received, he concluded that in the future
it was advisable to explain percentage raises to employees in individual interviews
before the raise became effective . However, when the second step raise (of 2.75 per-
,cent ) became effective in January 1963, and the third (of 2.6 percent ) began in July
1963, he did not resort to individual interviews because he felt that they knew what
they would get, from the initial notification, plus the widespread interviews and
explanations before the first step about the amounts they would get each time; he
explained the latter raises in terms of cents per hour to workers when they asked him
about it.
On December 18, 1963, Respondent determined on a 31/2 -percent raise to be effec-
tive in the first week of July 1964, and the next day Hayes announced it to the assem-
bled employees along with other changes in fringe benefits. He also told them he
would talk to them individually about the raise in the coming months. In mid-April
Respondent formulated the actual new wage schedules and sent them to Hayes, who
prepared therefrom the same type of listing converting the percent raise into cents
per hour and setting out the amount of progressive rate raises based thereon, for each
job and wage classification. Hayes says that he conducted the formal interviews on
this occasion because this involved a new percentage rate, and past inquiries about
the 1962-63 similar raises indicated much misunderstanding and confusion among
workers about the amounts they would receive, particularly why they did not all
receive the same raise in number of cents.5
Since the plant opened, employees on the payroll in 1964 had received from two
to five general raises (depending upon their hiring dates) with the advance notifica-
tions outlined above.
In addition to the above interviews, Respondent has also held personal interviews
with individual employees whenever they become entitled to new starting rates upon
4 His interview duties alone increased substantially, because he had to interview about
150 people in course of hiring 50 new workers ; and the paperwork incident to new
hirings, as well as in recall of others, devolved on him and 1 clerk in the office
5 Some workers at once asked Hayes about the amounts they would receive, and he
figured out the amount in each case as best he could but without the benefit of an
official rate schedule
'The exact amounts to be paid workers in each "labor grade" In starting rate, plus
all progressive rate increases, had been listed and explained by Hayes, when questioned
by workers, for the 1962-63 series of raises, for each step listing the exact change for
each worker, the 1964 list also showed the old and new rate for each worker by name,
with his classification , so that Hayes could readily explain why one worker might get more
or less of a raise in cents than another, where that situation occurred
GENERAL INDUSTRIES ELECTRONICS COMPANY 1033
transfer to new jobs , and to progressive raises during training therefor . Furthermore,
since 1960 Hayes has had personal interviews with workers ( some initiated by him,
some by them) continually about personal matters and all aspects of their jobs and
benefits. Also, management in 1961 and 1962 conducted verbal opinion surveys with
small groups to get their views on plant and personnel problems, and it has always
held frequent monthly meetings of the whole force , as when Industrial Relations
Director Bendik comes to the plant, to keep them up to date on all matters affecting
their jobs. In early 1963 management had scheduled interviews with small groups
to acquaint them with the new insurance plan, which will be further discussed below.?
The fact that Respondent crammed about 90 percent of the short 1964 interviews
into a 4-week period preceding the second election, without explaining why this could
not have been done as effectively after the election during June, is a suspicious circum-
stance (when standing alone ) which affords some support for an inference that
Respondent was deliberately and pointedly reminding workers of its beneficence in
order to turn them against the Union. However, that inference is overcome in my
opinion by the facts that (1) Respondent had only 4 months before told the employ-
ees of the amount of the raise in percent and exactly when it would come (this
announcement in open meeting is not attacked by General Counsel ), so that a mere
short statement to each in April and May of the exact amount in cents she would
receive in July was far from that type of sudden, startling, impressive announcement
of a new benefit "out of the blue," so to speak, which would be calculated to impress
the fact of the Employer's largesse on the work; (2) the interviews began about April
20, before the Board 's direction of second election came out and the date of that elec-
tion was fixed , so that it cannot reasonably be inferred that Respondent hurriedly
calculated the new wage rate and announced the figures with foreknowledge or in
anticipation of that Board action ; ( 3) the prior announcement of the raise and that
personal interviews on it would be held soon was consonant with Respondent's prac-
tice in 1962, so that it cannot be inferred that both actions were totally unexpected,
at least by those employees who had been in the plant since before May 1962, in fact
the wage raise and interviews on it were not new to any employees, for all were
cognizant from their hiring dates of the possibility of general as well as progressive
raises, and all had the previous experience of personal interviews with Hayes on vari-
ous aspects of their employment. The circumstance that a series of scheduled inter-
views were not in fact held in a fixed period in 1962 is credibly explained by the
unusual burden of personnel duties placed on Hayes at that time, for which he com-
pensated by later personal interviews with many workers as they sought him out for
explanations, 8 (4) the total lack of any mention by Hayes of the Union, its campaign,
or the coming election which directly or by implication would have been calculated
to impress the worker with the idea that this benefit was being given in return for a
vote against the Union; as such remarks could easily have been uttered in casual
fashion in the short talks to at least some of the many interviewed, this is especially
significant in overcoming any inference based on timing alone; (5) if the interviews
had a coercive purpose, it would have been easy for Respondent to discontinue them
once they had accomplished their purpose when the Union lost the second election,
but the fact that Hayes continued them with the rest of the work force, after the elec-
tion and even after the July raise took effect, is potent indication that it was merely
following its past wage-raise policy, regardless of the outcome of the pending election.
Considering all of the pertinent facts and circumstances, I conclude that Respondent
has adduced credible evidence which is sufficient to rebut the prima facie case made
by General Counsel, and that General Counsel has not sustained the ultimate burden
of proving by a preponderance of substantial evidence that the second announcement
of the July 1964 raise by individual interviews in April and May was coercive or in
any way violative of Section 8(a)(1) of the Act. I shall grant Respondent's motion
to dismiss the complaint in this respect, and recommend that an order of dismissal
be entered accordingly. For the same reasons, I also recommend that the Union's
objection No. 2, based on the same conduct, be overruled.
4 The above findings are based on credited and mutually corroborative testimony of
Bendik and Hayes, as corroborated in substantial part by admissions of many witnesses
of General Counsel.
"It was part of Hayes ' duties as personnel director to be available in the plant con-
stantly to answer questions and discuss problems, in addition to holding private inter-
views in his office
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Reference to strike violence
Prior to the first election Respondent had displayed prominently in the plant two
large posters containing photographic composites of newspaper articles dealing with
various strike situations in labor disputes.9 One dealt with the General Telephone
strike in Tampa, Florida, in mid-1963, in which Local 824 of the IBEW was involved,
and the other portrayed the strike arising out of a labor dispute between a Memphis
battery maker and Local 1227 of the same union. Both posters were topped with the
statement, in thick, black, block lettering 3 inches or more high, "Violence-one
promise the union will keep." 10 The Tampa poster was also headed "Now-in
Tampa," and the Memphis poster "Now-in Memphis," in similar lettering; the
Tampa poster also had at the bottom in prominent lettering the question: "Do you
want this?" In both the news article headlines in short form mentioned strike vio-
lence, involving both personnel and property damage, in lettering readable about 20
feet away. In adopting the Regional Director's recommendations on the Union's
objections to the first election, the Board found that the posters along with certain
campaign speeches and letters of Respondent "could only lead employees to under-
stand that their selection of Petitioner [the Union] as their bargaining representative
would inevitably lead to a strike, violence, and likely loss of jobs if Petitioner should
attempt to achieve better conditions of employment than those currently in effect"
and that "an atmosphere of fear and of complete futility in selecting Petitioner as
bargaining agent was thereby created" which prevented employees' exercise of free
choice in the election.
Following issuance of the Board's Decision with this finding, and on May 13, 1964,
the employees were assembled in the plant and addressed by Hayes, Plant Manager
George Dahl, Industrial Relations Director Bendik, and Vice President Harry J.
Hinchliffe. Hayes opened the meeting and introduced the other officials. When Ben-
dik was introduced, he mentioned that another election would be held May 27, that he
did not know why, because the Union had lost in the last election, and "it looks like
they would take `no' for an answer and leave us alone to proceed with our work."
He then said that the Company had displayed certain posters in the last election, that
the Union had objected to the headlines on them and the Board had set aside that
election because it found the mention of "strikes" and "violence" in them objection-
able (indicating the top of one or two large posters which Dahl held up for an instant),
and since the plant had so many new workers who had not seen the posters,11 the
Company had cut out the objectionable headlines and would put up the posters in
Hayes' office and the dispensary for any workers who desired to look at them. He
said the cut-down posters had information which he felt would be of interest to the
workers, that they would raise questions which the employees could ask the union
organizers and would refute some of the claims of those organizers about independ-
ence of local unions, and this would help the employees in deciding how to cast their
ballots
At the close of his talk, Bendik turned the microphone over to Dahl to handle a
question and answer period. During a lull with no questions from the employees,
Bendik came back to the microphone and said he wanted to say one last thing, that
"maybe I should not tell this, but I am going to," and then related an incident which
had been reported in the Elyria, Ohio, press a few days before about a foreman in a
nearby Ford plant who had been struck with shotgun pellets returning home from
work, that this was the second time he had been shot, and on both occasions the Ford
plant was involved in labor trouble with the United Auto Workers Union. Bendik
said there was no evidence tying the labor dispute and the shooting together, that
probably the two events were just coincidence, and that the Union here was not
involved. In relating this, Bendik held up a small newspaper clipping for workers to
see. There was some laughter from workers as he finished.
Starting May 14, 1964, Respondent posted six posters (including the two used in
1963, but with the objectionable headline cut off and the large letters "In Tampa" or
"In Memphis" as the case may be, substituted at the top) consecutively for a 24-hour
period each, openly in the plant dispensary and behind the entrance door in Hayes'
office; those in the dispensary apparently could be seen instantly by an employee
"They were displayed for consecutive 24-hour periods on September 23 and 24, 1963,
in the plant hallway near the timeclock and in the lunch area, portions of the plant
frequented daily by most employees.
10 This lettering is readable at least 100 feet away
11 Respondent had hired 48 new workers since the first election , and in normal turn-
over had lost 80 of those who had been eligible to vote in that election.
GENERAL INDUSTRIES ELECTRONICS COMPANY 1035
-entering , while employees entering Hayes' office could not see the display unless they
looked for it behind the door. The four additional posters were all headed "In
'Tampa" and contained similar news articles about the Tampa strike and violence
involved, with news photos showing alleged instances of telephone property damage;
they also contained newspaper editorials, paid ads by Tampa businessmen and mer-
chant groups, and letters from citizens to the newspapers, all published in September
1963 and later and commenting about the strike and attendance violence and the
inconveniences arising from disruption of telephone service during the strike.
The complaint alleges that the Bendik speech of May 13, and display of posters
thereafter, illegally warned employees that the strike violence "might ensue" if they
selected the Union as their bargaining representative. General Counsel contends
that Bendik's mere reference to the objectionable headlines in two posters and their
deletion, with display of the posters thus modified, and their later display and avail-
ability with others as found above, was coercive because it was a deliberate use of
material previously found coercive by the Board and therefore per se revived in
employee minds all the coercive implications found by the Board. In the represen-
tation case, the issue is whether the speech and use of the modified posters amounted
to interference with the second election requiring that it be set aside. If the Board
had considered the two 1963 posters by themselves in reaching its decision in the
representation case, there would be merit to this argument, but when all the circum-
stances of the 1964 posting are considered, it loses most of its force.
The Board found the two posters amounted to improper interference with the first
election, only as part and parcel of two company speeches in which Bendik had made
detailed references to specific violence portrayed in news items with pictures in the
posters, and five long letters to employees which detailed in plain language some
consequences and disadvantages of unionization of plants. However, in 1964 Respond-
ent did not repeat those speeches with their details of violence, or reissue the letters.
In its Decision, the Board did not find that the poster material alone, without the
headlines, might not be legitimate free speech; to the contrary, it intimated that the
posters alone (even with their bold headlines) might have less impact than the total
package of speeches, posters, and one posted bulletin, for in answering the arguments
of a dissenting Board Member, the Board said, "It makes no sense to us to find that
such a message does not interfere because each component part of the message viewed
separately, falls just a little short of interference." Further, it is notable that, in
referring to the 1963 posters, Bendik merely made it clear that Respondent had
eliminated the objectionable headlines, thus complying with that portion of the
Board's ruling; he did not try to repeat what the body of the posters said, or to charac-
terize them in any way which would point out or revive the message therein in a posi-
tive way. At most, he was telling the workers that, in preparation for the coming
election, Respondent was complying with the Board ruling by ridding the posters of
the objectionable features, but would still make the news items in them available to
those who wished to see them. Neither General Counsel nor the union officials who
testified claimed that the news stories in the posters, which dealt in part with activities
of this Union, were untrue or distorted, or were outside the boundaries of legitimate
free speech. As the posters containing this information were available to employees
seriatim from May 14 to about May 21, it is clear that the Union had ample time to
deny or otherwise answer any statements in them which it considered deliberate mis-
representations or campaign trickery. There is no proof that it issued any written
material for this purpose, or attacked the posters in oral discussions with workers 12
Again, while Respondent told employees that the six posters would be posted for their
perusal in two of the front offices of the plant, this was far short of the prominent
and continuing display of the 1963 posters which thrust not only the flaring headlines
found objectionable by the Board, but also the lesser headlines , upon employee vision
and consciousness at close range day after day as they punched in or out of the plant
or used the lunch area. While it can be said that Respondent "created" an oppor-
tunity for workers to see some of the posters when Hayes interviewed them singly
in his office , there is no proof that he mentioned the posters in such talks , or urged or
directed workers to look at them, nor that any employee took the trouble at any time
to stop and deliberately read the posters at close range in either office (both of them
were in relatively out-of-the-way areas which employees would not regularly visit in
the course of their day's work). Hence the impact of any or all of the posters while
12 The record shows that union agents were constantly advising union adherents and
employees about their rights under the Act throughout the campaign , and that the
Union distributed at least eight propaganda leaflets in the plant during the last 10 days
before the election.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on display, after Bendik's speech is highly speculative and at best minimal. In any
event, I still consider the use of the facts in the posters as legitimate free speech show-
ing past instances of some of the well-known, although unpleasant, consequences of
unionization in this country, which employees were well able to appraise and evaluate,
and which the Union had plenty of time before the election to deny, comment upon,
or explain away if it could. In all the circumstances, I cannot conclude that Respond-
ent's general, comparatively mild (and in part negative) reference to and use of the
1963 posters was reasonably calculated to revive in employees' minds, after the dim-
ming effects of 8 months' lapse of time, the grim, discouraging, and coercive message
which the Board found emerging in 1963 from the two original posters, two trenchant
speeches, and five detailed letters.13 Nor do I consider that this limited use of the
1963 posters, alone or along with the four new posters, became coercive through
Bendik's added recital of a recent instance of personal injury to a plant official at the
time of a labor dispute in Ohio, for although he admitted he recited this incident
reluctantly "to generate some ideas" during a "gap of silence" in the question and'
answer session after his talk, he made it clear to employees that he absolved this,
Union from that occurrence, when he said the shooting did not involve this Union<
and intimated that it probably had no direct connections with the Ohio labor dispute.
In all the circumstances,14 I must conclude that Respondent's limited use of the
old and new posters and Bendik's remarks as found above did not overstep the bounds,
of free speech protected by Section 8(c) of the Act, and did not thereby violate Section
8(a)(1). I therefore grant Respondent's motion to dismiss paragraph 10 of the
complaint, and recommend that the complaint be dismissed accordingly. On the
same considerations, I also conclude that this conduct falls short of interference suffi-
cient to warrant a cancellation of the election results, and shall recommend that the
Union's objections Nos. 4 and 5 be overruled.
3. Alleged threat to withdraw vacation pay
On or about May 21, 1964, Respondent posted a notice on a bulletin board in the
plant which head as follows:
QUESTION • Will vacation pay be distributed as scheduled on June 26 if the
Union wins the election and contract negotiations have not yet been concluded
by that time?
ANSWER. We can not give a "Yes" or "No" answer to this question. The
law requires the Company to negotiate with the Union if the Union wins the
election and Vacation pay is a subject of bargaining. "Pie in the sky" demands
by the Union could force the Company to reexamine its present policy with
respect to Vacation pay.
QUESTION: Would the contents of the EMPLOYEES' HANDBOOK auto-
matically remain in effect if the Union wins the election?
ANSWER: Hardly! You might get less benefits or more or you might end
up with the same. The law provides that both parties must negotiate in good
faith but does not say what either party must agree to, if anything.
Both of the above questions and answers can be further clarified by the follow-
ing quotation from Section 8(d) of the National Labor Relations Act which
defines collective bargaining in part as follows: ". . . to bargain collectively is
the performance of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising thereunder, and the execu-
tion of a written contract incorporating any agreement reached if requested by
either party, but such obligation does not compel either party to agree to a pro-
posal or require the making of a concession "
73 Bearing in mind that the Boaid recognized that the two posters alone, even in their
original state, might well have had less interfering impact than the total written and
oral messages of 1963, I have given no weight to testimony of a few employees with long
memories and obviously partisan in their union sentiments, that Bendik's mere reference
to the posters and their alteration had recalled to their minds the reference to violence
in the old headlines, it is more significant that these witnesses did not appear to recall
in testimony the gory details of the violence and vandalism set forth in the body of the
news stories.
I &I have also considered the absence of proof of prior union animus by Respondent,
although It had been through three union elections in the past 3 years
GENERAL INDUSTRIES ELECTRONICS COMPANY 1037
The notice remained posted about 24 hours. General Counsel claims that this docu-
ment was a coercive warning that selection of the Union would result in the em-
ployees' failure to get vacation pay and other benefits as listed in their employees'
handbook. By its objection No. 6 to the election, the Union claims that it interfered
with employees' freedom of choice in the election.
The record shows that: When hiring employees, Respondent told them that after
they had worked for a year, they would get vacation pay in an amount based on a
certain percentage of their weekly pay. Their handbooks also mentioned their vaca-
tion pay benefits. In the early weeks of May 1964 some employees asked Hayes if
they would still get their vacation pay that year if the Union came into the plant.
Hayes was not sure of the answer, so asked Bendik about it. After discussions among
management officials and company counsel in the week of May 18, the above notice
was prepared and posted. During a campaign speech by Bendik to employees at the
plant on May 26, at which Dahl, Hinchliffe, and Attorney Clark were present, several
employees asked from the floor if the workers would get their usual vacation pay if
the Union came in. Dahl answered vaguely that no specific answer could be given,
as this would probably be considered in negotiations with the Union, and then said
he would ask Bendik to answer the question. Bendik said it was a difficult question
to answer, that he could not give a "yes" or "no" answer. One girl asked why, and
he explained that vacation pay might be the subject of negotiation with the Union,
and he did not know what the company position about vacation pay would be if it
was faced with negotiation of a contract with the Union at the time this pay would
normally be given. He then cited some types of situation which might occur during
negotiations and which might prevent the Company from figuring and paying vacation
pay on the same basis that it had done so in the past. He also said the answer to this
question was already posted on the bulletin board. One worker then asked if Federal
law did not prohibit the Company from taking away what the employees already
enjoyed. At this point, Hinchliffe conferred with Attorney Clark and then took the
microphone and announced to the employees that they did not have to worry about
getting the vacation checks which the Company had promised, that the Company
would not take anything away from them but would follow through on all commit-
ments it had made to them, and that, so far as the Company was concerned, they
would get their checks on the day promised, as stated in their handbooks, regardless
of the outcome of the election.
The answer to the first question in the notice, on which General Counsel bases his
contention, was on its face an equivocal statement which was reasonably calculated
to raise questions in the minds of workers, as it actually did, about their receipt of
vacation pay in July as scheduled. It being a reasonable assumption that workers
who read the first question and answer also read the second, it also follows that both
answers made it clear to workers that the benefits they would get henceforth would
depend in large part on the results of negotiations with the Union, and this was
emphasized by the reference to the definition of collective bargaining in Section 8(d)
of the Act. Thus, I cannot agree that the first or both answers amounted to a coercive
threat of withdrawal of the benefit if Respondent had to negotiate with the Union.
However, even if the answers are reasonably susceptible of that interpretation, I am
satisfied that Respondent promptly clarified any confusion and removed any doubts
on the subject on the day before the election when Vice President Hinchliffe answered
the same questions of workers by announcing in clear and dramatic fashion that they
would get their usual vacation pay regardless of the outcome of the election. Though
Hinchliffe did not in so many words refer to the posted notice and say that it was
being overruled, this was not necessary to its effective repudiation, for the questions
from the floor made it clear that all the workers had the notice in mind, and Bendik
had just before repeated in substance the equivocal answer in the notice, and told them
it was in that document, so that Hinchliffe's immediate reassurance that they would
get the benefit could only have indicated that the workers should disregard the notice
and what Bendik had just said about it. As Hinchliffe was a top management official
known to the workers, his plain reassurances were just as potent and effective, if not
more so, to remove any coercive implications in the notice, as another posted docu-
ment. Nor is it significant that Respondent waited until May 26 to clarify this point,
for that was the first time it was fully aware from workers' questions that the notice
had raised doubts in their minds.ii In sum, assuming that the notice bore some
coercive implications, I must conclude that Hinchliffe's remarks canceled out any
coercive effect by his adequate, timely, and effective repudiation of the notice on
'a The record shows that the Union was aware of their doubts the day after the notice
was posted , but the Employer was not questioned about it until the 26th.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May,-26.16 I therefore find that General Counsel has not sustained the requisite bur-
den of proof that. Respondent's posting of the notice violated the Act. I grant
Respondent 's motion to strike the complaint as to that conduct, and recommend that
the complaint be dismissed in that respect.
Considering the notice in light of the Union 's objection No. 6, and bearing in mind
that conduct which may fall short of illegal coercion within the meaning of Section
8(a) (1) may still amount to interference sufficient to set aside an election ,17 I must
still conclude that the same equivocality of the answers in the notice, plus Hinchliffe's
clear repudiation of it on the 26th, weigh strongly against any conclusion of effective
interference with the election, particularly since Hinchhffe repudiated it at a time so.
close to the election that one can infer his positive reassurance to the workers most
likely to clear their doubts and allay any fears they had, and to remain in their minds
when they entered the voting booths. In addition, I find from testimony of two union
agents 18 that they learned about the notice about May 22 when employees told them
of it and asked whether the employer could take away their vacation pay, to which
the agents promptly and correctly replied that the Act forbade the Company from
taking such action in retaliation for their union activity; Smith told them repeatedly
that Respondent was forbidden to withhold benefits "already committed to them."
Further, on the 22d crude posters were found in the women's restrooms which stated'
practically the same thing in plain language, and assured the workers that the Com-
pany could be prevented by the Board from making any threats of that type. While
the record does not show the authors or source of these posters, the timing and con-
tents of them warrant the inference that they were quickly posted by union adherents
who were made aware of the Act and its protections from continuing discussions with
the union agents during the campaign. Thus, the Union and its adherents had ample
opportunity, and used it, before the election to correct any misapprehensions of
workers about their rights to the vacation pay which were raised by the notice; and"
since Hinchliffe's remarks were consonant with what the Union had already told
them, I am satisfied that, with the same information from both sources, the workers.
could no longer have had any doubts or fears about receipt of the usual vacation pay
when they went into the voting booths. I therefore conclude that the interfering
effects, if any, of the May 21 notice were dissipated before the election, and will
recommend that the Union's objection No. 6 to the election be overruled.la
4. The alleged promise of air conditioning
The record shows that on May 15, 1964, representatives of Kosky Heating Com-
pany, a Memphis, Tennessee, heating contractor, visited the plant and openly
inspected it for the purposes of submitting a bid for installation of air conditioning
in the plant, and that on May 27, the day of the election, three representatives of a
mechanical contractor from Little Rock, Arkansas, openly toured the plant for the
same purpose. General Counsel charges that Respondent deliberately caused these
people to inspect the plant in this period in order to give employees the impression
that they would shortly receive the benefit of air conditioning, and that the motive
was thereby to induce them to vote against the Union, and was not a bona fide busi-
ness effort to install air conditioning. The Union's objection No. 3 claims that this
conduct was effective election interference. The Board has held in representation
cases that, while conduct amounting to an offer or grant of benefits just before an
election is not per se ground for setting aside the election, the timing alone requires
the employer to come forward with a valid reason for the offer or grant at that
16I have carefully considered the situation in Austin Powder Company, 141 NLRB 183,
on which General Counsel relies , and find it inapposite on the facts, in particular be-
cause I find here no illegal conduct by Respondent after the timely, adequate, and pointed
remarks of Hinchliffe. I cannot accept General Counsel's argument that the repudiation
was not adequate because a few employees at the rear of the throng said they did not
hear his remarks. He was using a public address system, which is today used by
speakers in all types of situations to get a message to a large throng, and Respondent's
use of it was thus a reasonable and adequate attempt to convey Hinehliffe's remarks to
all the assembled workers. Respondent is not to be penalized if some chatter among a
group of nearly 300 females may have prevented some of them at the rear from hearing
all that was said. I am sure that after Hinchliffe finished the normal female curiosity
enabled those at the back to get what he said from others.
17 Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1787.
18 Schuyler Smith and J . M. Brizendine.
19 Cf. Trent Tube Company, 147 NLRB 538.
GENERAL INDUSTRIES ELECTRONICS COMPANY 1039
time.20 It is also well settled that, in determining a Section 8 (a) (1) issue based on
such action, the employer has the burden of adducing facts adequate to show that its
motive was other than coercive or that the circumstances of its conduct deprived it
of coercive effect. Respondent adduced much evidence on the air-conditioning prob-
lem from which I find the following facts.21
Arkansas being a very hot-weather State in the spring and summer months,
Respondent was faced with the air-conditioning problem from the moment it opened
the Forrest City plant in 1960. When it was being built, management talked about
air-conditioning it at the outset, but nothing was done for lack of funds. However,
each spring and summer from 1960 on, the employees complained about the heat
and openly expressed a desire for air conditioning, and each year rumors arose
among them that they might get it that summer, whenever they saw strangers walk-
ing through the plant. After 1 year of operation, Respondent in 1961 recognized a
definite need for air conditioning, for it had discovered that the large cement build-
ing did not cool off quickly at the close of hot days. Hinchliffe and Dahl discussed
the possibility of installing some cheap air-circulating devices, but nothing was done,
mainly for lack of funds. When employee complaints arose in 1962, large fans
were installed that year in louvers in the roof, but these proved inadequate. In June
1963, Dahl included in his plant budget for the next fiscal year a request for com-
plete air conditioning. That item was turned down by top management, but he was
directed to investigate the types and costs of various systems available and submit the
data to management, with the idea that the improvement might be handled in 1964.22
In the fall of 1963, Dahl contacted various heating and mechanical contractors for
estimates, and in September or October James A. Wellons, president of General Air
Conditioning Co. of Little Rock at the request of Respondent 23 inspected the plant,
discussed with Dahl the type and extent of the problem, and various ways of han-
dling it, and on October 22 submitted to Respondent the results of its inspection of
the plant, with recommendations on installation, and a rough estimate of about
$80,000 for mstallation of a central unit system. Late in 1963, Hinchliffe himself
had preliminary talks about systems and costs with at least one other contractor,
Shelby-Skipwith. When Weise Butane Co. brought in Wellon's firm to make the
1963 inspection and estimate, one of Weise's employees, Donald R. Pipkins, learned
of it, and when he went to work for Kosky Heating Co. in February 1964, he decided
to contact Respondent to try to get the air-conditioning job for his new employer.
He first visited the plant March 30, when Dahl turned him over to Maintenance
Foreman Rhew Bennett, who let him make a quick survey of the size and facilities
of the plant. Pipkins returned April 15 with his general manager, and Bennett con-
ducted both on a thorough and open inspection of the plant, answering questions
about its facilities. Pipkins had been a lifelong resident of Forrest City, and on this
tour several women employees recognized him, asked why he was there, and he told
them he was estimating on air conditioning. On this visit, neither Dahl nor Ben-
nett expressed any preference for any particular type of system, because Respond-
ent was at that point still interested in getting recommendations from contractors on
the types they thought best for L.nt plant.24 Pipkins and his manager returned to the
plant May 15 with an electrical contractor, who inspected the electrical system in
detail, so that he could submit a firm subbid on installation of electrical power, to
be included in Kosky's bid. On both trips the Kosky men spent most of their time
in the rear of the plant where workers could readily see them. In talking with
Kosky's men, Dahl did not set any specific deadline for submission of a bid, except
to say that he wanted it before June 1, when Respondent closed its books for the
fiscal year, indicating that if the price was within the present budget limits, Respond-
20 Bata Shoe Company, Inc., 116 NLRB 1239, 1241; International Shoe Company, 123
NLRB 682; Cadillac Overall Supply Company, 148 NLRB 1133.
21 These findings are based on credited and mutually corroborative testimony of various
witnesses of Respondent and General Counsel.
22 Management had learned that other local industries were installing modern air con-
ditioning in both old and new plants, and recognized that it must follow suit if it hoped
to procure new employees for its growing force of workers, most of whom were women.
zi Wellons was brought in by Weise Butane Co. of Forrest City, with whom Iinchliffe
and Dahl had earlier conferred about air conditioning. Weise suggested Wellon's firm
because Weise did not install these systems itself
24 The two basic types generally available in the industry were central units which
required extensive ducting to spread cooled air through the plant, and individual units,
which were each self-contained and could be hung from the ceiling where desired in a
plant.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent might award the work in the current fiscal year. Kosky did not actually submit
its bid until after July 7, because its electrical subcontractor did not submit his price
to Kosky until that date.
Early in 1964, Hinchliffe discovered that about $100,000 allotted in the current
budget for purchase of machinery would not be used, so urged Dahl to secure bids
from more sources, including the Little Rock firm, in the hope that if he secured a
firm bid within that amount, he might have the air conditioning moved from the
"supplemental" list of improvements approved but not budgeted, to the capital
expense column so that the work could be done before summer. On May 11 `Dahl
saw an advertisement of a York heat pump by Shelby-Skipwith, a York distributor,
in a Memphis paper, and noted from an accompanying article that this system
involved roof-type installations. He told Bennett to ask that distributor for an
inspection and estimate, because he knew the plant had little space for internal
installation of large units, so that a roof installation with fans suspended from the
ceiling might solve the space problem, and also be cheaper. Bennett called Skipwith
May 13, asking him to "get going on the project as soon as possible," as Respondent
wanted a system operating before hot weather came. Skipwith inspected the plant
with Bennett for several hours a day or two later Bennett asked him for bids both
on a central plant system and the roof-top installation. Skipwith's bid came in early
in June.
Sometime in May, Hinchliffe also mentioned the loose funds to Attorney Clark,
asking him to suggest possible contractors. Clark named another Little Rock con-
tractor, and at Hinchliffe's request contacted Ellis M. Fagan III, of the Little Rock
firm, on May 26, asking him to submit a bid. Fagan asked if there was any urgency
about it. Clark replied no, but that Vice President Hinchliffe would be at the For-
rest City plant only through May 27, and if he was not there when Fagan came,
Manager Dahl would be available. Fagan had an officer and engineer of his firm
inspect the plant on the 27th. Bennett took them into the plant but spent only about
a half hour with them, because he had special duties in preparing a plant area for
the voting that day.25 However, he found out from them that a man he knew was
in their employ, and arranged to have him call Bennett later to inspect the plant for
further details; the man came in a few days later to check the electrical facilities.
The Fagan firm submitted a bid for installation of Westinghouse equipment shortly
after, in June.26
Wellons of General Air Conditioning Co. learned during the winter of 1963-64
that Respondent was still interested in air conditioning, so he visited the plant in late
April or early May to find out Respondent's intentions. Dahl told him to "get seri-
ous" and submit specific recommendations and a firm bid. Early in May, he and
another man spent about 2 hours inspecting the plant in the company of Bennett, and
at that time told Bennett of several alternate ways of doing the job, but opined that
individual cooling units would be more effective and much cheaper than a central
system. Wellons made several more visits to the plant in May to get additional data.
On June 8 General Air Conditioning Co. submitted a firm bid of about $60,000 for
a system of individual units for the Forrest City job. Hinchliffe and other top offi-
cials examined it together with the bids from Shelby-Skipwith and Fagan's firm 27
and, although Wellons' firm was not the low bidder, Hinchliffe advised Wellons that
Respondent was prepared to accept his bid, provided his firm would also submit a
composite bid including the Bald Knob plant. Wellons submitted a bid of $85,000
for both plants, which was accepted, largely because the unitized equipment took up
zs One witness of General Counsel, Shirley Fields, testified credibly that early that
morning she and other workers saw some strangers at the back door of the plant, one
of whom asked the girls how they would like an air-conditioned building. Fields replied
that if he thought it was air conditioned, he should come inside it. He replied, "It will
be." As no plant official was with the men, they were not identified, and there is no
proof that Fields saw them later in the plant, I cannot find that they were Fagan's
men, nor that Respondent had caused them to make these comments to the girls, or
adopted them.
° Before all the bids were in, Hinchliffe had had a preference for installation of
Westinghouse units, because Westinghouse Electric Corporation was an important buyer
of Respondent's motors, but after Hinchliffe learned of some apparent disadvantages of
Westinghouse equipment, he urged Dahl to get bids on all available types
27 The Bosky firm submitted its bid after July 7, because it did not get a subbid from
its electrical contractor until that date Hinchliffe had also contacted Page Air Con-
ditioning Co. of Elyria, Ohio, for a bid, but there is no clear proof that that concern
submitted a bid.
GENERAL INDUSTRIES ELECTRONICS COMPANY 1041
less space and was easier to maintain, and the cost of doing both plants at once was
less costly and well within the funds available. On an oral acceptance late in June
(the actual purchase order was issued July 21), Wellons' firm began the job in the
last week of June while the plant was partially shut down during vacation period for
normal maintenance, and finished the installations sometime in September.
The above facts and their sequence afford cogent support for the defense that the
installation of air conditioning, and the procurement of bids and inspections of the
plant preliminary to it, were motivated solely by Respondent's recognition of the
growing economic need for that improvement, which was implemented by the gather-
ing of preliminary estimates and other data in late 1963, and was galvanized into
definite procurement action by the fortuitous availability of funds early in 1964.
General Counsel does not contend that the 1963 action was illegal, nor that the
release of funds in early 1964 was a contrived or spurious event. Furthermore, there
is not an iota of proof that Respondent knew Pipkins of the Kosky firm was a local
resident and contrived to have him visit the plant, in hopes or with any direction
that he talk to employees; the record shows that he came on his own to try and get
the business, and his talks with workers during one of his inspections were purely
fortuitous. His visit was clearly not the first, or sole, cause of employees' specula-
tion about air conditioning, for they must have known of Wellons' open inspection
in September 1963, as well as the April and May 1964 visits of Pipkins and the May
visits of Skipwith, all of which must have added to the speculation and revived their
hope for air conditioning. Since employees had always talked about and hoped for
this every time they saw strangers in the plant in the past, it was only natural that
when they saw strangers inspecting the plant several times in the spring of 1964, the
same hopes revived, and the wish was clearly "father to the thought." The fact that
Pipkins on one occasion, unknown to Respondent, confirmed their hopes in answer to
questions of employee friends who by chance spotted him in the plant, and that the
knowledge probably quickly spread through the plant, gave the employees every good
reason to believe their longtime hopes were being realized, but this does not make
Respondent's satisfaction of their desires at that period, after long and legitimate
economic preparation for it, a coercive or otherwise improper action. Nor are other
criticisms of Respondent's course of conduct by General Counsel grounds for more
than mere suspicion about its actions: the fact that Bennett on May 27 spent only
a short time with Fagan's men, while having devoted more time to earlier prospec-
tive bidders, and that Hinchliffe told Fagan when he inspected the plant that "time
was short," will not support an inference that Fagan's inspection was an empty, pro
forma gesture, or a bit of play-acting to impress employees, because the record shows
that Bennett had other duties to occupy his time on the 27th in connection with the
election, and that all bidders had been asked to make inspections and send in bids
by June 1, for budget reasons, so that management could include the amount of the
bid accepted in its next fiscal year budget. In like manner, I find nothing significant
in Respondent's failure to tell Pipkins about the award to General Air Conditioning
Company until he submitted his bid on July 7, for when his bid failed to come in by
June 8, when Respondent had three firm bids at hand, it is inferable that Respondent
might well have concluded that Kosky was not going to bid If the theory of General
Counsel, which is based laigely upon speculations for minutiae of Respondent's con-
duct or lack of it with respect to the air-conditioning problem, were to be adopted,
it would require a holding that Respondent in effect went through a long, elaborate
theatrical performance, in a series of scenes beginning in the fall of 1963, with the
action arising to a grand climax in the inspection of May 27, followed by the very
expensive anticlimax of actual air conditioning of two plants, instead of one, in
order to give color to the alleged farce of May 27. I cannot believe that this
Employer, who was trying to build the operations of a fairly new plant into a profit-
able venture, would go to such tortuous and expensive lengths to exert improper
influence on workers or exert coercion on them before an election, particularly in
the absence of coercive conduct indicating unlawful animus toward this Union or
labor unions in general. In this connection, I also note that, after the election and
toward the last of June, Manager Dahl told workers definitely, in answer to ques-
tions, that the plant would be air conditioned, but neither the complaint nor General
Counsel's argument charges that the later actual air conditioning, or the anounce-
ment of the improvement, was an illegal reward for voting against the Union.
Considering all the circumstances and arguments pro and con, I conclude that
Respondent has adduced cogent proof showing legitimate and noncoercive reasons for
the installation of air conditioning, including the preliminary inspections by prospective
bidders, sufficient to rebut the testimony adduced by General Counsel on this point,
7 53-730-60-vol. 152-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that General Counsel has failed to sustain the ultimate burden of proving on the
entire record that the allowance of open inspection of the plant by such bidders just
before and on the day of the election amounted to coercion of employees. I find that
Respondent did not violate the Act by such action, or any part of it, and hereby grant
Respondent's motion to dismiss paragraph 9 of the complaint, and recommend that
the complaint be dismissed accordingly. On the same facts and circumstances, I
conclude that none of Respondent's actions on the air-conditioning problem amounted
to interference with the employees' freedom of voting choice which warranted can-
cellation of the election, and recommend that the Union's objection No. 3 to the
election be overruled.
5. Grant of increased insurance benefits
From about February 1, 1963, Respondent had been giving employees hospitaliza-
tion insurance which contained a "$50 deductible" clause.28 On April 23, 1964,
Respondent announced to the employees that it was increasing this insurance by
changing the deductible to $25, effective April 20, 1964. General Counsel argues
that this grant was inherently coercive and violated Section 8(a)( I) because it came
in the period during which Respondent had pending before the Board appeals from
the Regional Director's report of November 21, 1963, in Case No. 26-RC-2020
recommending that the 1963 election be set aside and a new election ordered. The
Board's acceptance of that report and direction of a second election did not issue until
April 28, 1964. The new election was not ordered until May 3. There is no proof
that Respondent had any inkling of the Board's position beforehand This grant
occurred substantially before most of the other conduct at issue herein, and the record
shows no connection between it and the later conduct except the circumstance that
all of it occurred within a little more than a month before the second election. In
granting Respondent's motion at the close of General Counsel's case-in-chief to dis-
miss paragraph 7 of the complaint, I rejected the contention of General Counsel that
Respondent had no right to anticipate favorable action on its appeals to the Board,
but should have ignored any possibility that its appeals might succeed and refrained
from granting this benefit on the assumption that the Regional Director would be
sustained in toto, and that "in view of the totality of the conduct in this case, the
mere timing of the offering of improved benefits is a violation of the Act." Since all
other conduct of Respondent on which General Counsel adduced proof (as to which
Respondent admitted a prima facie case had been made) occurred after the change
of medical benefits and even after the Board's direction of a second election, and
there is no persuasive connection between the medical grant and the later conduct,
I concluded that the "totality" of the later conduct (assuming it was coercive) should
not be "related back" so as to make the medical grant, while Respondent was legally
resorting to its statutory rights of appeal under the Act, an automatic violation of
the Act. I adhere to the same view after careful consideration of Ambox, Incorpo-
rated, 146 NLRB 1520, cited by General Counsel in his oral argument, for in that
case the questioned grant of benefit while the Union's objections to an election were
pending came after other unlawful conduct which the Board found was part of an
overall plan to perpetuate a company-dominated union. The situation is far different
here, as there is no other conduct alleged to be violative of the Act which occurred
prior to May 13, 1964.29 Furthermore, acceptance of the theory of General Counsel
would in effect require a holding that, during the period objections to an election are
pending, an employer is automatically precluded from carrying out commitments on
wages and other benefits made to employees long prior to the representation proceed-
ing as part of its normal dealings with them. I must reject this view as not consonant
with the objectives of the Act because it takes an unrealistic view of normal industrial
relations between employer and employee. In this connection, I also find from
credible testimony of witnesses of General Counsel and Respondent that, when the
insurance plan was first put into effect, employees were told that Respondent had no
choice but to install the $50 deductible feature because of poor claim experience in
the past, and that modification of that clause or any other coverage under the plan
would have to await the analysis of at least 1 year of experience under the plan.
28 This clause requires the insured person to pay the first $50 of expenses covered by
the policy.
28In deciding the motion, I considered only testimony adduced by General Counsel
through witnesses on his case-in-chief, disregarding testimony of certain witnesses put
on by Respondent out of order and as part of its case during General Counsel's case
purely foi sake of their convenience, as well as other testimony of Respondent adduced
later in piesentation of its defense
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1043
Hence, it is a reasonable inference that the favorable modification of the deductible
clause in April 1964 could not have been such a total surprise to employees as to
warrant the inference that they considered it a new form of largesse from the
Employer in return for a vote against the Union.30 Moreover , if the limitation
claimed by General Counsel were put on the Employer, and he cited the pendency
of the Union's representation petition in answer to employees ' questions about failure
to receive a long-promised benefit, he would run the risk of a charge of coercive with-
holding of benefits like that facing Respondent here after it had expressed some doubt
about payment of vacation pay for reasons found above.
Even if I had agreed with the contention of General Counsel at the close of his
case-in-chief, I would still be compelled to dismiss the allegation as to the insurance-
benefit, in view of the cogent proof adduced by Respondent on which I have concluded
that its later conduct did not violate the Act or interfere with the election. For the
above reasons , I recommend that the Union's objection No. 1 to the election be
overruled.
Considering all of Respondent 's conduct in issue here , the most that can be said for
it is that the occurrence of all of it in the period of a little over 1 month before the
second election arouses some suspicion that Respondent may have acted to influence
employees in that election , but the suspicion is weakened by the cogent explanatory
facts adduced by Respondent as found above, tending to show that its conduct was
in part an exercise of business judgment, in part the honoring of past commitments.
to employees , and in part legitimate free speech within the meaning of Section 8(c)^
of the Act, and that all of it amounted to less than such interferences with the employ-
ees' freedom of choice in the election as would warrant its cancellation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent has not engaged in any unfair labor practices as alleged in the com-
plaint in Case No. 26-CA-1830.
4. Respondent has not engaged in any conduct which improperly influenced or
interfered with employees in making their choice of bargaining representative in the
election of May 27, 1964 , which would warrant the setting aside of that election.
RECOMMENDED ORDER
I recommend that the complaint in Case No . 26-CA-1830 be dismissed and that
the Union 's objections Nos. 1 through 6 to conduct affecting the results of the election
of May 27, 1964 , in Case No. 26-RC-2020 be overruled , and that the Board certify
the results of that election.
10A somewhat similar situation involving normal dealings with grant of benefits to
employees during a representation case was found legitimate by the United States Circuit
Court of Appeals , 10th Circuit, in J. S. Dillon t Sons Stores Co., Inc. v. N.L.R .B., 338
F. 2d 395.
Springfield Garment Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. 17-CA-
24113. June 1,1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Sydney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. The Trial Examiner further found
that the Respondent had not engaged in certain other unfair labor
152 NLRB No. 109.