Liquitane Corp.

National Labor Relations Board - Board DecisionsApr 25, 1990

298 N.L.R.B. 292 (N.L.R.B. 1990)

292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Liquitane Corp. and Rochester Joint Board , Amalga- mated Clothing and Textile Workers' Union, AFL-CIO. Cases 3-CA-14964 and 3-RC-9371 April 25, 1990 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAIT AND OVIATT On November 8, 1989, Administrative Law Judge Raymond P. Green issued the attached deci- sion. The General Counsel and Charging Party filed exceptions and supporting briefs, and the Re- spondent filed an answering 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,2 and conclusions only to the extent consistent with this Decision and Order. Based on his discrediting the testimony of the General Counsel's witnesses, the judge concluded that during a captive audience meeting in April 1989 with employees, the Respondent's president, Jay Skirboll, did not threaten plant closure, loss of jobs, and loss of benefits if the employees selected the Union, nor did Skirboll inform employees that it would be futile to select the Union as their bar- gaining representative. The judge also concluded, based on credibility determinations, that, during an alleged conversation in the company breakroom, also in April 1989, Skirboll did not threaten em- ployees with plant closure, unlawfully interrogate employees concerning their union activities, or i The General Counsel excepted to the judge 's failure to rule on the General Counsel 's motion to amend the complaint to include additional allegations related to the breakroom incident. As discussed, supra, the judge concluded that the alleged breakroom conversation between em- ployees and Respondent's president never took place . Because we adopt the judge's finding, it is unnecessary to rule on the General Counsel's motion 2 The General Counsel 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 evidence convinces us that they are incor- rect. 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. The judge erred in identifying the February 1989 conversation with employee Franqui (that is alleged to constitute an unlawful interrogation) as being between Frangw and the Respondent 's president, Jay Skirboll. Franqui testified concerning only one conversation with a company rep- resentative and that was his conversation with the Respondent 's oper- ations manager, Jerry Zakalik . The judge's decision is based on Franqui's uncontroverted testimony concerning the conversation between Franqui and Zakalik Therefore, the error in identifying the Respondent's repre- sentative is nonprejudicial create the impression of surveillance . The judge further found that election objections related to these alleged incidents were without merit. We agree. We disagree , however, with the judge 's conclu- sion that Operations Manager Zakalik 's questioning of employee Franqui concerning employee Stop- ka's union activities was a lawful interrogation.3 The uncontroverted testimony of Franqui indicates that Zakalik approached Franqui sometime in Feb- ruary 1989 and asked him if there was anything wrong . Franqui said there was , and Zakalik asked if there was anything he could do to help. Franqui responded that he was concerned about rumors going around the factory concerning his being in- volved with union activities, along with Stopka, and that he wanted these rumors stopped . Zakalik said that during a union campaign there was bound to be rumors and talk. Zakalik then asked Franqui if he knew of any activities that Stopka was in- volved in with the Union as far as passing out flyers or trying to get people to sign up. Franqui told Zakalik that he did not know because he worked a different shift than Stopka. The judge cited Bates Niteware Co., 283 NLRB 1128 (1987), and Rossmore House, 269 NLRB 1176 (1984), enfd . sub nom . Hotel & Restaurant Employ- ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), in support of his conclusion that the interro- gation described by Franqui was not unlawful. In Rossmore House , the Board held that the coercive nature of questions to employees by employer agents about union sympathies and activities would be viewed under the totality of the circumstances. A violation will be found when , under all the cir- cumstances , the interrogation reasonably tends to a Applying the analysis set forth in his dissent in Raytheon Co, 279 NLRB 245, 251 (1986), Chairman Stephens would adopt the judge's dis- missal of the unlawful interrogation allegation To be sure , the fact that a relatively high ranking company official posed a specific question regard- ing the union activity (leaflet distribution and card solicitation) of a par- ticular employee does fulfill some of the elements for finding an unlawful interrogation under the so-called Bourne standards. Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). Chairman Stephens believes that the conduct here falls just short of a violation because of other, equally significant factors: Zakalik 's question was an isolated one to a single employee, against a background devoid of Employer hostility and discrunination . In addition, it was employee Franqui who initiated the discussion concerning the Union and the union activities of coworker Stopka and the encounter took place in the familiar, more casual surroundings of the shop floor (as opposed to the boss' office). Finally, Zakalik did not press the matter fur- ther when Franqui gave what appears to be a truthful response that he did not know anything about Stopka's activities . In sum, viewing the cir- cumstances in their totality, Chairman Stephens does not find that the question suggested to the employee that the Employer may take retaliato- ry action against employees because of their prounion sympathies Frito- Lay, Inc. v NLRB, 585 F.2d 62, 65 (3d Cir. 1978). Cf. Timsco Y NLRB, 819 F 2d 1173 (D.C. Cir. 1987) (applying the Bourne standard, the court upheld a Board finding of unlawful interrogations because of the cumula- tive effect of seven exchanges, even though six exchanges, if considered individually and taken out of context , do not sound especially coercive). 298 NLRB No. 39 LIQUITANE CORP. 293 restrain, coerce, or interfere with employees in the exercise of the rights guaranteed them by the Act. Under the "totality of the circumstances" test, we conclude that the interrogation of Franqui vio- lated Section 8(a)(1) of the Act.4 It is uncontro- verted that Zakalik asked Franqui if Stopka was in- volved with the Union or was passing out flyers or soliciting employees' signatures . There is no evi- dence that Stopka or Franqui were open and active union supporters at the time of the questioning. Franqui's introduction of rumors about his union activities into the conversation does not negate the coercive tendency of the questioning. Franqui did not volunteer information regarding Stopka's spe- cific union activities, but only volunteered his con- cern that rumors existed associating Franqui and Stopka as being involved in union activities. Fran- qui's conversation focused on the existence of rumors and the connection of these rumors to him- self. Zakalik probed beyond Franqui's statements by asking specific information regarding Stopka's union activities. Zakalik thus expanded the scope of the discussion by inquiring about the truth of the rumors regarding Stopka's involvement in union organizing activities. Accordingly, we conclude that the questioning of Franqui constituted an un- lawful interrogation in violation of Section 8(a)(1).5 This interrogation, which is also alleged as ob- jectionable conduct, is not sufficient to affect the results of the April 27, 1989 election. 6 Chairman ' See Raytheon Co., supra, in which the Board majority held that prob- ing attempts by a supervisor to find out from employees about the specif- ic union activities of other employees who'had not yet disclosed their at- titudes toward the union had a reasonable tendency , under the circum- stances, to interfere with , restrain , and coerce those employees in the ex- ercise of their rights, in violation of Sec 8 (axl) of the Act In that case the Board found that aspects that tended to reduce the potentially coer- cive effect of the employer agent's questioning (namely, the location of the questioning on the workplace floor, rather than in managerial offices; the employee's initiation of the discussion of the union ; the employer agent's expressions of sympathy for the employees and his encourage- ment of their attempts to organize ; and the jocular tone of the conversa- tion), were outweighed by the particular nature of the information sought, the probing, focused nature of the questioning , and the fact that the employees being questioned were not open, active union supporters at the time of the questioning. 279 NLRB 245, 246. 5 We find that Bates Nitewear Ca , supra, cited by the judge, is factual- ly distinguishable. In that case , following discipline for verbal altercations with other employees, employee Wise initiated conversations with two supervisors and volunteered information that coworkers were harassing her about the union . Thereafter, the employer's vice president questioned Wise about the complaints she had raised and asked her to identify the employees who were harassing her The Board found that the informa- tion sought was within the scope of that which the employee had freely disclosed, and was the type of information the employer logically would seek in any disciplinary matter, whether it related to the subject of unions, and, therefore , the questions did not violate Sec. 8 (a)(1) of the Act. In the present case the Respondent's questions were not related to a disciplinary matter and were not concerned with the source of the rumors or the impact on Franqui's employment The Respondent 's ques- tions instead went beyond the scope of what Franqui had disclosed and were directed toward obtaining information concerning the truth of the rumors as related to the union activities of employee Stopka. 5 Contrary to her colleagues, Member Cracraft would find the Re- spondent's 8(a)(1) conduct to be objectionable conduct sufficient to affect Stephens reaches this result on the ground that the Respondent 's questioning of Franqui was lawful. (See fn. 3, supra.) Member Oviatt, who finds the Respondent's questioning of Franqui to be unlaw- ful, would not set the election aside for the follow- ing reasons. The record is unclear as to the exact date of the interrogation. The Union's representa- tion petition was filed on February 17, 1989, a Friday. The complaint alleges that the violation oc- curred on or about February 19, 1989, a Sunday. The judge did not make a specific fording concern- ing the date of the interrogation. The transcript contains testimony that places the conversation on or about February 9 or 19. Member Oviatt finds that because both of these dates are more than 2 months before the election, and the interrogation is an isolated incident, affecting at most 2 employees in a unit of 104 eligible voters, 7 the conduct is in- sufficient to affect the results of the election.8 Ac- cordingly, the objections are overruled in their en- tirety and a certification of results of election will be issued. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3. "3. By interrogating an employee regarding the union membership, activities, and sympathies of an- other employee, the Respondent violated Section 8(a)(1) of the Act." THE REMEDY Having found that the Respondent violated Sec- tion 8(a)(1) of the Act, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. the results of the election, if the conduct occurred during the critical period. In this regard , she notes the closeness of the election vote, where a change in only 2 votes could change the outcome of the election (the final tally was 48 for and 51 against the Union), and the evidence of dis- semination to at least 1 other eligible voter. She finds Coca-Cola Bottling Co., 232 NLRB 717 (1977), relied on by Member Oviatt, to be dlistmqui- shable because there the votes of the two employees affected by the re- spondent's unlawful conduct could not have altered the outcome of the election. As discussed below, however, the record is unclear as to the exact date of the interrogation. The transcript quotes Franqui as testify- ing that the conversation occurred "the week of February 9th" and "around the third week of February." The Charging Party contends that the transcript erroneously quoted Franqui who in fact stated "around the week of the 19th," which would be consistent with his later statement "around the third week in February " The conversation would fall within the critical period if it took place after the Union filed its representation petition on February 17, 1989. Because Member Cracraft would find the conduct objectionable if it occurred during the critical period, she would remand the case to the judge for a determination as to the precise date the conversation took place. 7 Franqui testified that he related his conversation with Zakalik to one other bargaining unit employee. s See Coca-Cola Bottling Co., supra. 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Liquitane Corp., Rochester, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about the union support or union activities of other employ- ees. (b) In any like or 'related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Rochester, New York, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able 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 Respondent has taken to comply. CERTIFICATION OF RESULTS OF ELECTION It is certified that a majority of the valid ballots have not been cast for Rochester Joint Board, Amalgamated Clothing and Textile Workers' Union, AFL-CIO and that it is not the exclusive representative of the employees in the unit found appropriate. s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about the union support or activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. LIQUITANE CORP. Mary Thomas Scott. Esq. and Doren G. Goldstone, Esq, for the General Counsel. Gerald L. Paley Esq. (Phillips, Lytle, Hitchcock, Blaine & Huber), on behalf of the Employer. Kurt Edelman, Organizer on behalf of the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was tried in Rochester, New York, on September 18, 1989. The charge in Case 3-CA-14964 was filed on May 4, 1989. Based on that charge the Regional Director for Region 3, on June 22, 1989 issued a complaint and notice of hearing. The complaint as amended at the hearing al- leged that the employer by its president, M. Jay Skirboll threatened plant closure if the Union were to become the bargaining representative of the employees; informed em- ployees that it would be futile to select the Union; inter- rogated employees regarding their union sympathies; and gave the employees the impression that the Employer engaged in surveillance of their union activities. The petition in Case 3-RC-9371 was filed by the Union on February 17, 1989 and the Acting Regional Director issued a Decision and Direction of Election on March 28, 1989. Thereafter, an election was held on April 27, 1989, wherein 48 votes were cast for the Union, 49 against, and 2 votes were challenged. Subse- quent to the election the Union filed timely Objections to the Conduct of the Election, alleging that the Employer engaged in certain preelection conduct which should in- validate the election. On June 30, 1989, the Regional Director issued a Sup- plemental Decision and Order in 3-RC-9371. In that de- cision he concluded that the two challenged ballots be opened, that certain of the Union's Objections be dis- missed, and that certain other allegations of preelection misconduct be resolved by a hearing. Specifically, he or- dered that a hearing be held on the Union's Objections 3 and 5 which respectively alleged that the employer coer- LIQUITANE CORP. 295 cively interrogated employees and threatened that it would not bargain in good faith in the event'that the em- ployees selected the Union. Additionally, although not alleged in the Union 's objections , the Regional Director ordered that the hearing also encompass certain evidence uncovered in the investigation alleging that the Employ- er threatened plant closure, loss of jobs and loss of unem- ployment benefits if the Union was selected by the em- ployees. On May 29, 1989, the Regional Director ordered that the representation case allegations and the unfair labor practice allegations be consolidated for hearing. On the entire record, including my observation of the demeanor of the witnesses , and after considering the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION The Employer admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2 (5) of the Act. II. THE ALLEGED UNLAWFUL CONDUCT Miguel Franqui testified that on one occasion in Feb- ruary 1989, Skirboll, the company's president, asked why he was, looking so glum. Franqui, testified that he there- upon told Skirboll that he was upset because there were untrue rumors going around the factory that he and an- other employee , Carmen Stopka, were union ringleaders. Franqui testified that he told Skirboll that he wanted the rumors stopped whereupon the latter said that during a union campaign there was bound to be rumors and talk. According to Franqui, Skirboll then said that he had heard some talk about Carmen passing out flyers and asked if Franqui knew anything about that. Franqui conceded that the whole subject of the Union was brought up by him and that it was he who first men- tioned the rumors about himself and Carmen being ac- tively involved in union campaigning. The Employer did not contest the testimony of Franqui , contending that it does not amount to unlawful interrogation within the meaning of Section 8(a)(1) of the Act . I agree. Bates Nitewear Co., 283 NLRB 1128 (1987); Rossmare House, 269 NLRB 1176 (1984). Before the election the Employer held a number of meetings with groups of employees . On the night shift, which; consisted of about 35 employees, the employer by Jay Skirboll addressed several small groups , each consist- ing of about six to eight persons. (The Employer's per- sonnel manager, Cathy Michniewicz, was present at these meetings but was not called as a witness).' The General Counsel presented two employees who testified about one such meeting on the night shift which they both attended and which they placed as having oc- curred about a week prior to the election. Both employ- ees, Rosie King and Dorothy Burnett, testified that at the commencement of the meeting, a video tape was played and that thereafter Skirboll talked to the employ- ees using notes as a point of reference . (That is, both tes- tified that although Skirboll had written materials which he sometimes read, they also testified that he spoke at times without reading . Indeed this is basically conceded by Skirboll who testified that he had a prepared text which he basically read or talked from in discussing the issues). According to Dorothy Burnett, Skirboll told the em- ployees that they were family, and that they "didn't need outsiders coming in to tell us how to run the company." She testified that he said , "before I let someone, ... an outsider come in, I'll close down the plant." According to Burnett , Skirboll said something about the union dues, stating that he was concerned about the employees having to pay dues. She testified that Skirboll said that the Union was saying a lot of things, making promises, but if they came in it wouldn 't really mean that much be- cause although they would be asking for more money, Liquitane didn't have the money to give. According to Burnett, he also said that if the employees went on strike the Company could bring in people from the outside to take the jobs and that when the strike was over, there was no guarantee that they would get their jobs back. According to Rosie King, Skirboll said that the things that the Union promised, like raises and better working conditions, were not so , because Liquitane just didn't have the money to do it. King testified that, " He also said that before he would let the union come in, you know, that he would close the plant, you know, close the doors." According to King, Skirboll said that if they closed the plant, it would be 3 months before employees could apply for unemployment. She testified that Skir- boll talked about other companies and said that at Clean Brite they had been forming a union for some time but had still not gotten the union in yet. (Probably meaning that no contract had been signed.) She testified that Skir- boll said that he was concerned about his employees paying union dues which would be money coming out of their pockets. According to King, Dave Sayles asked if there would be a strike if the Union came in and Skirboll answered that if there was a strike, the Company would go out and hire other people to do the work and that it wasn't guaranteed that they could ' get their jobs back even after the strike was over. Skirboll testified that he did hold a series of meetings with all employees and that the meeting referred to by King and Burnett was held on April 25 and not April 19 as they testified. (The exact date is really of no conse- quence). He denied that he made any threats to close the plant or close the doors and testified that what he said is basically contained in a written speech which was cleared by his attorneys before being given. This speech reads in part. This will be my last talk to you before the elec- tion on Thursday and there a number of things that I would like to cover... . Unions are losing more and more members every year. This is particularly true here in Rochester where only a small percentage of the work force is unionized . The reason is simple . Unions make big promises but that is all they are capable of as evi- denced by the number of people who vote them out 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD year after year and as the number of unionized busi- nesses closed in our area and those jobs were lost. Another reason unions are losing members is be- cause they are expensive. The Amalgamated would charge you over $210.00 a year to work at Liqui- tane. . . . That money would go to the union so that it could pay Mr. Edelman approximately S40,000.00 a year and other union officers could re- ceive over $60,000.00 a year. The Union wants you to believe that you have nothing to lose if you vote for them. What they do not tell you is that everything is negotiable and that you can lose wages and benefits as a result of nego- tiations , especially if this union wants something like a union shop or a check off. If we don't agree to the union's demands, the only thing they can do to force us to give in would be to call a strike. If there is an economic strike, Your pay in benefits would stop. You would receive no unemployment benefits for 7 weeks. You could be permanently replaced. The Union has used scare tactics and lies in an effort to get your votes. They have made big prom- ises about pay and benefits by comparing our situa- tion to Xerox. . . . So when they compare Xerox to Liquitane, they are trying to fool you just as they fooled the people in the clothing industry here in Rochester. Remember the newspaper articles where plants closed, workers lost their jobs and where those employees who lost their jobs had difficulty finding other jobs. ... We review our situation continually in order to provide improvements in your wages and bene- fits. I am not saying things are perfect. I am saying, however, that we can solve problems working to- gether without the necessity of having an outsider like the Amalgamated telling us what to do. Moreover a Union contract guarantees nothing. Remember the Rochester Clothing article, where under Amalgamated contracts the people lost wages and the companies closed down and all the workers lost their jobs. That is some guarantee. I would also ask you-Do you know the truth about the collective bargaining process? The Union would have you think that all that has to happen is that they ask for something and the employer must give it. It is true that the bargaining process is one of give and take, but that does not mean that he em- ployer gives and the union takes. The union would also have you think that bar- gaining starts from present wages and benefit levels and there is no possible way that employees can lose anything. That is simply not true. In effect, all of your present and/or future wages and benefits are negotiable-Nothing is automatic. Negotiations start with a blank piece of paper. It is possible that the Union might be willing to trade off a benefit that you now enjoy for one that is more important to them-Like automatic dues deduction or a union shop. If after good faith bargaining we refuse to agree to the union's demands, the only thing the union can do is try to force us to give into their unreason- able demands by asking you to strike. Burnett and King also testified about an informal meet- ing in the breakroom they and other employees on the night shift had with Skirboll shortly before the election. In this regard, Burnett testified on direct examination that Mr. Skirboll on this occasion said that before an out- sider came in and told him how to run the place, he would close it down. On cross-examination, however, when Burnett was asked to describe this meeting, she forgot to mention that Skirboll had threatened to close the plant. Instead she testified for the first time (and I believe to the surprise of the General Counsel), that he interrogated the employees about the Union and that he told Burnett and King that he was disappointed in them because he thought they were the union ring leaders. According to Burnett, Skir- boll said, "I'm very disappointed in you two because if I can't depend on you who can I depend on." Based on the testimony given by Burnett during cross- examination, the General Counsel moved to further amend the complaint to add allegations of interrogation and impression of surveillance. When I queried this wit- ness, she testified that she had related the entirety of the breakroom meeting when she had spoken to the Govern- ment's attorneys on two occasions prior to the teal. (Ob- viously, she had not related this information, otherwise the amendments would have been made at the outset of the trial and not until after the witness had been cross- examined.) King also testified concerning the meeting in the breakroom and she essentially corroborated the testimo- ny of Burnett in all respects. (I note that the witnesses were not sequestered as no motion to sequester was made by any party.) Skirboll denied the testimony of King and Burnett de- scribed above, essentially stating that no such meeting ever took place. Conclusion I have already indicated my opinion that the allegation relating to the interrogation of Franqui has no merit. Regarding the formal meetings held by Skirboll prior to the election, I note that the contentions made by the General Counsel and the Union are supported by only 2 employees out of more than 100. Moreover, their testi- mony related to only one among a large number of simi- lar meetings held over a 1 or 2 day period. Although both Burnett and King testified that at the meeting they attended, Skirboll threatened to close the plant and indicated the futility of selecting a union, their testimony was corroborated by no other employees in the plant. Further, their testimony was in many ways consistent with the written speech which Skirboll used as LIQUITANE CORP. 297 ny that Skirboll said that the company could not afford to give the kind of money that the union was seeking, was consistent with the statements in the written speech to the effect that a union cannot make promises; that bar- gaining is a process of give and take; and that all present and future benefits- are negotiable. Similarly, the testimo- ny of the two employees is not all that different from the written speech on the subjects of dues or of strikes and the use of strike replacements. The written speech at three places makes mention of plant closings by other companies which have dealt with unions . With these repeated references to plant closing, it is not surprising that some employees may truthfully relate that what they remember is that the employer told them that if they chose to be represented by a union, the company would close down. Frankly, were it not for the problems that I have with the testimony of King and Burnett relating to the breakroom incident, I would have fully credited their testimony as to the alleged threat of plant closure made at the meeting where the videotape was shown. As it stands, I think that although both per- sons testified truthfully as to what they remember, I be- lieve that they understandably misinterpreted what in fact was said. Based on the above and also based on considerations of demeanor, I make the following conclusions: 1. At the meeting where the video tape was shown, Skirboll, although referring to plant closings by other companies in relation to unionization, did not actually threaten his own employees with plant closure if they chose to be represented by the Union. Whatever, one might think of the implicit message of his speech, I do not think that Skirboll's statements, from a legal point of view, constitute a violation of law or grounds for setting aside the election. Sanagmo Weston, Inc., 273 NLRB 256 (1984). 2. At the same meeting described above, Skirboll did not tell employees that it would be futile for them to select the Union as their bargaining representative. At most, he told them that the Company could not accede to the union's demands; that bargaining involved a proc- ess of give and take; that all benefits, including present benefits would be subject to bargaining; that the Union could resort to a strike if it was unhappy with bargain- ing; and that the employer could replace strikers with permanent replacements. -Such statements do not consti- tute violations of the Act, nor grounds for setting aside an election. In Sangamo Weston, Inc., supra, the Board stated: The Respondent informed the employees that the Union had taken employees out on strike at other companies and that certain adverse consequences had ensued; that strikers received no pay or benefits during a strike and could be permanently replaced; and that should the Union win the election and make unreasonable bargaining demands it would either have to drop those demands or strike. The Respondent did not tell employees if they selected the Union it would close the plant or take other re- prisals. Instead, the Respondent specifically reas- sured employees it would bargain in good faith with the Union if it won the election and would take no reprisals in that event.' 3. That the contentions concerning the alleged meeting in the breakroom, were not supported by adequate and credible evidence. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Company has not engaged in the unfair labor practices alleged in the amended Complaint. 4. The Union's Objections to the Election are without merit. [Recommended Order omitted from publication.] ' See also Pastronicx Inc., 233 NLRB 155, 156 (1977), where the Board stated: Depending upon the surrounding circumstances, an employer which indicates that collective bargaining "begins from scratch" or "starts at zero" or "starts with a blank page" may or may not be engaging in objectionable conduct Such statements are objectionable when, in context, they effectively threaten employees with the loss of existing benefits and leave them with the impression that what they may ultimately receive depends in large measure upon what the Union can induce the employer to restore. On the other hand, such statements are not objectionable when additional communication to the employees dispels any implication that wages and/or benefits will be reduced during the course of bargaining and establishes that any reduction in wages or benefits will occur only as a result of the normal give and take of collective bargaining. The totality of all the circumstances must be viewed to determine the effect of the state- ments on the employees . [Footnotes omitted.]