Madison Industries, Inc.

National Labor Relations Board - Board DecisionsSep 26, 1988

290 N.L.R.B. 1226 (N.L.R.B. 1988)

1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Madison Industries , Inc. and Sheet Metal Workers' International Association , Local Union No. 108, AFL-CIO and Martin H . Hansen, Petitioner. Cases 21-CA-24902 and 21-RD-2169 September 26, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr On a charge filed by Sheet Metal Workers' International Association, Local Union No. 108, AFL-CIO on August. 14, 1986, the General Coun- sel of the National Labor Relations Board issued a complaint and notice of hearing in Case 21-CA- 24902 on May 4, 1987, alleging that the Respond- ent (the Employer) has engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act. The Respondent filed an answer denying the commis- sion of any unfair labor practices. On November 2, 1987, the Respondent, the Union, the General Counsel, and the Petitioner filed with the Board a Stipulation of Facts, with certain attachments, and entered a Joint Motion to Transfer Proceedings Directly to the Board. The parties waived a hearing and issuance of a decision by an administrative law judge and indicated their desire to submit the case directly to the Board for findings of fact, conclusions of law, and a decision and order. The parties also agreed that the stipula- tion of facts, with certain attachments, would con- stitute the entire record before the Board. On March 2, 1988, the Board issued an order granting the parties' motion, approving the stipulation, and transferring the proceedings to the Board. Thereaf- ter, the General Counsel and the Respondent filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record and the briefs in this pro- ceeding, the Board makes the following FINDINGS OF FACT 1. JURISDICTION The Respondent is a California corporation en- gaged in manufacturing prefabricated structures and operates a facility located at 1900 East 64th Street, Los Angeles, California. In the normal course and conduct of its business operations the Respondent annually purchases and receives goods and materials valued in excess of $50,000 directly from suppliers outside the State of California. The parties stipulated and we find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts The following employees of the Respondent con- stitute a unit appropriate for the purposes of collec- tive-bargaining within the meaning of Section 9(b) of the Act: All metal building industry journeymen, ap- prentices, janitors, steel shop leadmen, finish line leadmen and painters employed by the Employer at its facility located at 1900 East 64th Street, Los Angeles, California; excluding all other employees, office clerical employees, professional employees, watchmen, guards and supervisors as defined in the Act. Since about August 1976, and at all times materi- al, the Union has been the duly designated exclu- sive collective-bargaining representative of the Re- spondent's employees in the above-described unit, and since about August 1976 the Union has been recognized as that representative by the Respond- ent. Recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective by its terms from July 1, 1983 to June 30, 1986. Since about August 1976 the Union has been the representative for the purposes of collective-bar- gaining for a majority of the employees in the above-described unit and by virtue of Section 9(a) of the Act is the exclusive representative of all em- ployees in that unit for the purposes of collective- bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. At all times material, Sam Frey has been presi- dent of the Respondent, and John Frey Jr. (John Frey), has been general manager of the Respond- ent. Each of them is a supervisor within the mean- ing of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(2) and (13) of the Act. Pursuant to a Stipulated Election Agreement, a decertification election by secret ballot was con- ducted on May 16, 1986,1 among the employees of the Employer in the above-described unit. The re- sults of the election were 38 votes for the Union, 8 against, with an insufficient number of challenged ballots to affect the outcome. 1 All dates are 1986 unless otherwise indicated. 290 NLRB No. 160 MADISON INDUSTRIES 1227 On May 22 the Employer filed timely objections to the election On June 5 and 9 the Employer, the Union, and the Petitioner entered into a stipulation and agreed that a second election be conducted In accordance with the parties ' stipulation, on June 18, the Regional Director issued a Report on Ob- jections recommending to the Board that the May 16 election be set aside , and that a second election be conducted On July 11 the Board in its Deci- sion, Order, and Direction of Second Election adopted the Regional Director 's recommendation and ordered that a second election be held The second election was scheduled for August 8 About August 6 the Respondent, at its facility, without notice to the Union, hand distributed di- rectly to all of its employees in the unit a copy of a document that included a cover letter that was ad- dressed to each unit employee individually The cover letter stated The attached document was prepared by Madison Industries for all non-union employ- ees The document and the assurances con- tamed within it are your guarantee of fair treatment The future of Madison Industries depends on good relations with the company personnel The future of the company also de- pends on establishing reasonable costs for wages and benefits This company does not feel that either of these two can be accom- plished with the 108 Sheetmetal Union The management views this Union as a parasite Your union dues and the company's benefit payments support the union bosses without any benefit to you or this company I urge you to take this document as a commitment be- tween you and this company and vote NO on August 8 , 1986 It is time to step out of the union past and into the profit sharing present The document presented a number of terms and conditions of employment different from those of the Union's most recent contract, which had ex- pired on June 30 , along with provisions concerning holidays and vacation taken directly from the ex- pired agreement It contained a new medical plan, which the Respondent characterized as providing medical benefits equivalent to or better than those available under the medical plan of the previous collective-bargaining agreement , and included a "written guarantee" that wages would not be re- duced from existing levels and would be indexed to the Government's cost of living index with no de- crease in the event of a drop in the index The Re- spondent further offered the employees an unde- fined profit-sharing and stock ownership plan in lieu of a traditional pension plan The document also contained provisions regarding seniority and layoffs that differed from those contained in the most recent collective-bargammg agreement Thus, the Respondent intended to make "seniority " solely a function of the employees ' willingness and ability to perform the work required , layoffs would be contingent on an employee's ability and willingness to perform the work at hand , with the least able employees laid off first This was a change from the most recent agreement that made chronological seniority the determining factor in deciding which employees of equal ability should be laid off The document also differed from the recently ex- pired agreement by specifying offensive conduct for which employees could be discharged, extend- ing the period during the day in which the employ- ees' shift could be scheduled , and offering merit wage increases to those employees who could meet certain general guidelines regarding ability and willingness to work, attendance , and tardiness during the prior year Finally , the Respondent made its implementation contingent on the Union's defeat in the upcoming decertification election In this regard , the proposal stated This document shall remain in force indefina- tely if utilized Tlus document will expire and become null and void if the union is not voted out On August 7, within 24 hours of the election scheduled for August 8, the Respondent , through Sam Frey and John Frey , conducted a meeting at its plant among approximately 30 to 40 employees At this meeting, Sam Frey and John Frey spoke for approximately 5 minutes and made the follow- ing statements (1) That the Respondent's competition was non- union and that the Respondent would have difficul- ty competing because of the Union (2) That the Union would make the Respondent "go broke " (3) That it did not matter who won the election, because whichever side lost would protest the elec- tion (4) That John Frey would not sign a contract with the Union any more. On August 8, 1986, the Board conducted the second decertification election (among the employ- ees in the above-described unit) The results of the election were 12 votes for the Union, 27 against, with an insufficient number of challenged ballots to affect the outcome On August 14 the Union filed the instant unfair labor practice charges and objections to the August 8 election On May 20, 1987, the Acting Regional Director issued a supplemental report on objections and order directing hearing and order consolidat- 1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing cases and notice of hearing in which he con- cluded that the issues raised in Case 21-RD-2169 by the Union's Objections 1, 2, and 4 were closely related to the issues involved in Case 21-CA-24902 and could best be resolved in a consolidated pro- ceeding. The Acting Regional Director also ap- proved the Union's withdrawal of all other objec- tions. B. Contentions of the Parties The General Counsel contends that the Respond- ent violated Section 8(a)(5) and (1) of the Act by refusing to bargain' with the Union in good faith when it bypassed the Union and sought to bargain directly with its employees by presenting them with a collective-bargaining proposal on August 6. The General Counsel further contends that the written statements contained in the cover letter and collective-bargaining proposal distributed to each employee individually on August 6 and the oral statements made by Sam Frey and John Frey during a meeting with employees on August 7, un- lawfully restrained and coerced employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. Thus, the General Counsel asserts that the August 6 document and cover letter to employees contained promises of benefits if employees voted against the Union, and a threat of plant closure unless the Union was voted out (i.e., because of what the Respondent implied was the Union's an- ticipated unwillingness to agree to cost-reduction steps proposed by the Respondent). The General Counsel contends that the August 7 remarks of Sam and John Frey to employees also influenced and coerced employees to vote against the Union by (1) threatening that the Respondent could not compete, would "go broke," and would go out of business unless the employees voted the Union out, and (2) by threatening to file objections to the elec- tion, and threatening not to sign a contract, if the employees voted to keep the Union, thus convey- ing to the employees the futility of voting for the Union. Finally, the General Counsel argues that the Re- spondent's actions on August 6 and 7, are suffi- ciently egregious to warrant the issuance of a bar- gaining order as established in NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969). In this regard, the General Counsel asserts that during the period prior to and including the August 8 election day the Union continued to enjoy the presumption of majority support of the bargaining unit, and that the Respondent's unlawful conduct was within a category of violations that the Board has found to have a lingering effect on employees, and to be more resistant to the Board 's traditional remedies. More specifically, the General Counsel emphasizes that the Respondent offered, through its August 6 contract proposal, wage guarantees and benefits ex- pressly conditioned on the Union's ouster; that during the August 7 meeting both the Respondent's president and general manager explicitly threatened plant closure and flatly refused to sign a contract with the Union; that the Respondent denigrated the Union in its August 6 letter, and verbally expressed on August 7 the futility of the employees selecting a representative when the Respondent had no in- tention of bargaining with any representative chosen; and that most of the unit employees wit- nessed the Respondent's unlawful conduct. The Respondent does not claim that it did not engage in the preelection conduct described above. Moreover, the Respondent does not contest the presumed continuing majority status of the Union as of August 8. Rather, the Respondent asserts that "the Board is being requested to decide a narrow issue : Whether the facts as stipulated warrant the extreme remedy of a Gissel bargaining order." The Respondent argues that the most appropriate method of redress is not a Gissel bargaining order, but a new election, thereby allowing for employee free choice in selecting a collective-bargaining rep- resentative. The Respondent contends that its August 7 re- marks to the employees (1) that the Respondent's competition was nonunion and that the Respondent would have difficulty competing because of the Union; and (2) that the Union would make Re- spondent "go broke" are permitted under Gissel as objective statements of economic fact based on the Respondent's knowledge and experience. The Re- spondent further asserts that its August 7 remarks (1) that it did not matter who won the election, be- cause whichever side lost would protest the elec- tion; and (2) that John Frey would not sign a con- tract with the Union any more, constitute only minor, less extensive, unfair labor practices that would have only a slight impact on the election process and would therefore not warrant a Gissel bargaining order. Finally, the Respondent contends that the docu- ment and cover letter, hand distributed to each of its employees on August 6 was not a promise of benefits but a comparison of its benefits plan with that plan offered by the Union and that even if its statements were promises, they were not so ex- traordinary as to be incapable of being erased by traditional remedies. MADISON INDUSTRIES 1229 C Discussion and Conclusions 1 Violation of Section 8(a)(5) and (1) We find that the Respondent refused to bargain with, and attempted to bypass and undermine the Union , and deal directly with its employees by uni- laterally presenting to the employees a document that was, in effect, a contract proposal As noted above, the Union has been the exclusive collective- bargaining representative of the unit employees since August 1976 The Respondent , therefore, had a duty to bargain with the Union and to refrain from dealing directly with unit employees over terms and conditions of employment The August 6, 1986 letter and attached contract proposal, which was hand-delivered to each unit employee, proposed changes in such terms and conditions of employment as the health care benefits plan, pen- sion plan, and the Company 's policy on seniority and layoffs The contract proposal made clear that the terms it contained would become null and void if the Union was not voted out The document went beyond merely comparing the terms the Re- spondent could offer with the terms of the recently expired contract with the Union because, as fully set forth above, the document made an offer con- tingent on the ousting of the Union We conclude that by such conduct, the Respondent has bar- gained directly with the unit employees and sought to undermine the status of the Union as their exclu- sive collective-bargaining representative in viola- tion of Section 8 (a)(5) and (1) of the Act See Coast Engraving Co, 282 NLRB 1236 , 1250 (1987), Gentzler Tool Corp, 268 NLRB 330 (1983), enfd 778 F 2d 1211 (6th Cir 1985) 2 Violations of Section 8(a)(1) Section 7 of the Act guarantees employees the right "to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective-bargaining or other mutual aid or pro- tection " Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to inter- fere with, restrain , or coerce employees" in the ex- ercise of their Section 7 rights An Employer vio- lates Section 8(a)(1) of the Act if its actions would tend to coerce a reasonable employee, without regard to intent or whether an employee is actually coerced Hanes Hosiery , 219 NLRB 338 (1975) However , Section 8(c) of the Act provides that the expression of any view will not be an unfair labor practice , if it contains no threat of reprisal or promise of benefit In NLRB v Gissel Packing Co, 395 US 575, 617-619 , the Supreme Court balanced the require- ments of these statutory provisions as follows Any assessment of the precise scope of em- ployer expression , of course, must be made in the context of its labor relations setting Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in [Sec- tion] 7 and protected by [Section] 8(a)(1) and the proviso to [Section] 8(c) And any balanc- ing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear [A]n employer is free to communicate to his employees any of his general views about un- ionism or any of his specific views about a particular union , so long as the communica- tions do not contain a "threat of reprisal or force or promise of benefit" He may even make a prediction as to the precise effect he believes unionization will have on his compa- ny In such a case , however, the prediction must be carefully phrased on the basis of ob- jective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a manage- ment decision already arrived at to close the plant in case of unionization See Textile Work- ers v Darlington Mfg Co, 380 U S 263, 274, fn 20 (1965) If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable predic- tion based on available facts but a threat of re- taliation based on misrepresentation and coer- cion , and as such without the protection of the First Amendment We therefore agree with the court below that "[c]onveyance of the em- ployer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable , the eventuality of closing is capable of proof 397 F 2d 157, 160 Examining the Respondent 's conduct and state- ments in light of these standards , we find that the Respondent has made threats and promises that exceed the expression of views permitted by Sec- tion 8(c) of the Act 1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On August 6, 1986, 2 days before the decertifica- tion election, the Respondent provided to its em- ployees a document that was, in effect, a contract proposal containing numerous changes and im- provements in the terms and provisions of the re- cently expired collective-bargaining agreement. The Respondent expressly conditioned implementa- tion of these proposed new terms and provisions on the employees' rejection of the Union in the elec- tion. By this conduct the Respondent has unlawful- ly promised benefits in return for the ouster of the Union, in violation of Section 8(a)(1) of the Act. Collectramatic, Inc., 267 NLRB 866, 870 (1983). The next day, August 7, Sam and John Frey, the Respondent's president and general manager, re- spectively, told the employees that if the Union was not voted out the Respondent would have dif- ficulty-indeed, the employees were told that con- tinued unionization would cause the Respondent to "go broke." We find that the Respondent has effec- tively predicted plant closure if the Union was not voted out. As the Supreme Court has held, predicting plant closure is not a statement of fact permissible under Section 8(c) of the Act unless the eventuality of plant closure is capable of proof-a circumstance that the Court considered to be "most improbable." Here, the Respondent's prediction of plant clo- sure-i.e., that it would "go broke"-if the Union was retained was clearly not "carefully phrased on the basis of objective fact" (395 U.S. at 618) and most certainly cannot be said to convey the Re- spondent's "belief as to demonstrably probable con- sequences beyond [the Respondent's] control." (395 U.S. at 618.) The stipulated record sets forth no facts on which the Respondent could be said to have based an objective belief that plant closure was a demonstrably probable consequence of con- tinued unionization. Accordingly, we find that the Respondent's prediction that the Union would make it "go broke" constituted an unlawful threat of piant closure if the employees voted to keep the Union. Walter Garson, Jr. & Associates, 276 NLRB 1226, 1231-1232 (1985); Engineered Control Systems, 274 NLRB 1308, 1313 (1985). Cf. Churchill's Res- taurant , 276 NLRB 775 (1985) (the prediction that the employer would go out of business if union won the election is not unlawful where the em- ployer expressly provided objective support for its prediction: previous experience with particular wage demands of the union or specific decline in business). In their August 7 remarks, the Freys also told the employees that regardless of the outcome of the election, that if the Union won the election the Respondent would file objections, and that in any event, John Frey would not sign another contract with the Union. These statements not only indicat- ed to the employees the short-term futility of their engaging in the representation process but also the long-term futility of retaining the Union as their collective-bargaining representative. These remarks reveal the Respondent's unwillingness to recognize and bargain in good faith with the Union, which is coercive, for it had the effect of discouraging the organizational efforts of the employees. These statements intimidated and coerced the employees in their choice of whether to continue to be repre- sented by the Union. We find that the Respond- ent's remarks in this regard violated Section 8(a)(1) of the Act. See Without Reservation, 280 NLRB 1408 1412 1418 ( 1986). 3. Objectionable conduct As noted above, Objections 1, 2, and 4 to the August 8, 1986, second decertification election are closely related to the unfair labor practice allega- tions. We have found above that the Respondent violated the Act during the 2 days prior to the election by bypassing the Union and dealing direct- ly with the employees; by promising benefits and threatening plant closure; and by threatening to bargain in bad faith with the Union by never sign- ing a contract with the Union. It is well established that conduct violative of the Act is conduct that interferes with free choice in an election. Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). Conse- quently, we will set aside the results of the August 8 election. See SDC Investment, Inc., 284 NLRB 131, 134 (1987). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers ' International Associa- tion, Local Union No. 108 , AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for the purposes of collective -bargaining within the meaning of Section 9(b) of the Act: All metal building industry journeymen, ap- prentices , janitors, steel shop leadmen, finish line leadmen and painters employed by the Employer at its facility located at 1900 East 64th Street , Los Angeles , California; excluding all other employees , office clerical employees, professional employees , watchmen , guards and supervisors as defined in the Act. MADISON INDUSTRIES 4 At all times since about August 1976, mclud- Ing all times material, the Umon has been and is now the duly designated exclusive representative of the employees in the above-described unit for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act 5 By refusing to bargain with the Union, bypass- mg it and dealing directly with its employees in unilaterally presenting the employees with a con- tract proposal, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1 ) of the Act 6 By promising employees potentially improved benefits and terms and conditions of employment if the employees voted to decertify the Union, by in- dicating to employees the futility of selecting the Union as their collective-bargaining representative; and by threatening to close the plant if the employ- ees voted for continued union representation, the Respondent has interfered with, restrained , and co- erced its employees in the exercise of their rights under Section 7 in violation of Section 8(a)(1) of the Act 7 The above violations of the Act are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (5) of the Act, we will order that it cease and desist and that it take certain affirmative action to effectuate the policies of the Act The Respondent has not contested the fact that it engaged in the conduct discussed above, and has not argued against setting aside the August 8, 1986 decertification election based on that misconduct Nor has the Respondent challenged the presump- tive continued majority status of this incumbent Union Rather, the Respondent maintains that the most appropriate method of redress for its miscon- duct is not the bargaining order sought by the General Counsel under authority of NLRB v. Gissel Packing Co, 395 US 575 (1969), but another de- certification election 2 For the reasons discussed a NLRB r Gissel Packing Co involved an attempt by the Union to secure initial recognition In that case the Court found that in certain cir- cumstances the employee sentiments expressed in union authorization cards were better protected by the issuance of a bargaining order Here, the General Counsel has establianed that a majority of the unit employees desire to be represented by the Union on the basis of a rebuttable pre- sumption arising from the Union 's initial recognition and successive col- lective-bargaming agreements with the Umon The Respondent does not question the continuing majority status of the Union , nor is there evi- dence to suggest that the presumption of continued majority support has been rebutted In these circumstances , a Gis el bargaining order may be used to remedy unfair labor practices when appropriate See, e g, Michi- gan Products, 236 NLRB 1143 (1978) 1231 below, we find, in agreement with the General Counsel, that the nature of the unfair labor prac- tices engaged in by the Respondent effectively pre- cludes the holding therefore warranted In Gissel, the Court approved the Board 's use of bargaining orders in cases when unfair labor prac- tices, although perhaps not "outrageous" or "per- vasive," nonetheless have the tendency to under- mine a union's majority strength and impede the election process, and when the possibility of eras- ing the effects of unfair labor practices and ensur- ing a fair election is slight Id at 614 We find this to be such a case There is no question that the Respondent's mis- conduct was pervasive The Respondent's contract proposal, which contained an unlawful promise of benefits, was hand delivered to every employee in the unit Thus, every employee was not only the immediate recipient of an unlawful promise, but also was the target of the Respondent's unlawful bypassing of the Union Furthermore, the threats never to sign a collective-bargaining agreement and to close the plant were made at an employee meet- ing of some 30 to 40 employees in a unit of ap- proximately 58 employees These pervasive unfair labor practices were com- mitted by the President and the General Manager, the Respondent 's highest management officials The Board has held that the effect of unlawful conduct is heightened when it is committed by top manage- ment officials who are readily perceived as repre- senting company policy See, e g , Cartridge Actu- ated Devices, 282 NLRB 426 (1986) In addition to the pervasiveness of the miscon- duct, the effect of which is heightened by the par- ticipation of top management officials, the nature of the misconduct indicates that traditional reme- dies are not likely to be effective It is well settled that threats of plant closure are one of the most co- ercive actions an employer can take in seeking to Influence an election Long Airdax, 277 NLRB 1157, 1160 (1985) As the Supreme Court stated in Gissel, these threats are among the types of unfair labor practices that "destroy election conditions for a longer period of time than others " Gissel, above, 395 U.S. at 611 fn 31 In addition, the Respond- ent's unlawful remarks conveyed to employees its disregard for the very traditional remedy it now as- serts is sufficient to cure the effects of its miscon- duct Its president and its general manager told the employees that the election process would resolve nothing and that regardless of the eventual out- come, the Respondent would not sign a contract with the Union Thus Sam and John Frey told unit employees that the election results would be con- tested, no matter what the result, and that the Re- 1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent would not sign another contract with the Union. It is highly improbable that these remarks would not still be of concern to employees entering a third decertification election. In light of the violations we conclude that the possibility of erasing the effects of the Respond- ent's unfair labor practices and of conducting a fair election by the use of traditional remedies is slight. Requiring the Respondent simply to refrain from unlawful conduct will not eradicate the lingering effects of the violations. Correspondingly, it is not likely that a third election would reliably reflect genuine, uncoerced employee sentiment. We con- clude therefore that the employees' representational desires would, on balance, be better protected by the issuance of a bargaining order than by tradi- tional remedies.3 Accordingly, we will order the Respondent to recognize and bargain with the Union, on request, as the exclusive collective-bargaining agent of the employees in the unit found appropriate and, if an understanding is reached, embody it in a written, signed agreement.4 ORDER The National Labor Relations Board orders that the Respondent, Madison Industries, Inc., Los An- geles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collective- ly in good faith with Sheet Metal Workers' Inter- national Association, Local Union No. 108, AFL- CIO as the exclusive bargaining representative of its employees in the following appropriate unit: All metal building industry journeymen, ap- prentices, janitors , steel shop leadmen, finish line leadmen, and painters employed by the Employer at its facility located at 1900 East 64th Street, Los Angeles, California; excluding all other employees, office clerical employees, professional employees, watchmen, guards and supervisors as defined in the Act. (b) Attempting to bypass and undermine the Union and deal directly with its employees by uni- laterally presenting to the employees a contract proposal containing changes in the terms and con- ditions of their employment. 9 Of course , this order does not lock in the Union as the bargaining representative. As the Supreme Court noted in Gissel, supra 395 U.S. at 613: "There is, after all, nothing permanent in a bargaining order, and, if, after the effects of the employer 's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representa- tion petition." * The General Counsel requests a visitatorial clause. We deny the Gen- eral Counsel's request as unnecessary here. Cherokee Marine, 287 NLRB 1080 (1988). (c) Promising employees potentially improved benefits and terms and conditions of employment in the form of a written agreement if they vote to de- certify the Union. (d) Announcing to employees its intent to refuse to bargain in good faith with the Union if the Union is selected to represent the employees, by making statements to employees that no future con- tracts will be signed with the Union and indicating to employees that selecting the Union as their ex- clusive collective-bargaining representative is a fu- tility. (e) Threatening to close the plant if the employ- ees vote for continued union representation. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, recognize and bargain collective- ly. in good faith with Sheet Metal Workers' Inter- national Association, Local Union No. 108, AFL- CIO as the exclusive bargaining representative of the employees in the appropriate unit found above with respect to wages, rates of pay, hours of em- ployment, and other terms and conditions of em- ployment and, if an understanding is reached, embody it in a signed written agreement. (b) Post at its facility in Los Angeles, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election in Case 21-RD-2169 is set aside and the petition in that case is dismissed. 6 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." MADISON INDUSTRIES 1233 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, ,loin, 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 refuse to recognize and bargain collectively in good faith with Sheet Metal Work- ers' International Association , Local Union No 108, AFL-CIO as the exclusive bargaining repre- sentative for the employees in the following appro- priate unit All metal building industry journeymen, ap- prentices, janitors, steel shop leadmen, finish line leadmen and painters employed by the Employer at its facility located at 1900 East 64th Street, Los Angeles, California, excluding all other employees, office clerical employees, professional employees , watchmen, guards and supervisors as defined in the Act WE WILL NOT attempt to bypass and undermine the Union and deal directly with our employees by unilaterally presenting to them a contract proposal containing changes in the terms and conditions of their employment WE WILL NOT promise our employees potentially improved benefits and terms and conditions of em- ployment in the form of a written agreement if they vote to decertify the Union WE WILL NOT announce to employees our refus- al to bargain with the Union if the Union is select- ed as their collective-bargaining representative by making statements to our employees that no future contracts will be signed with the Union or by indi- cating to them that selecting the Union as their ex- clusive collective-bargaining representative is a fu- tility WE WILL NOT threaten to close the plant if our employees vote for continued union representation WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act WE WILL, on request, recognize and bargain col- lectively in good faith with Sheet Metal Workers' International Association , Local Union No 108, AFL-CIO as the exclusive bargaining representa- tive of our employees in the appropriate unit set forth above, with respect to wages, rates of pay, hours of employment , and other terms and condi- tions of employment and, if an understanding is reached , embody such understanding in a signed written agreement MADISON INDUSTRIES, INC