Hedison Mfg. Co.

HEDISON MANUFACTURING COMPANY 791 Hedison Manufacturing Company and Rhode Island Workers Union Local 76, Service Employees In- ternational Union, AFL-CIO.' Cases I-CA- 14050, 1-CA-14085, 1-CA-14086, 1-CA- 14273, I-CA-14274, -CA-14600, and I-RC- 15542 May 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On May 18, 1979, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, both the Respond- ent and the General Counsel filed exceptions and supporting briefs, and the General Counsel filed a brief in response to Respondent's exceptions and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, except as modified herein. I. At an earlier stage of Case -RC-15542, the Board adopted, inter alia, the recommendation of the Regional Director for Region 1 to overrule the ' The General Counsel's unopposed motion that the name of the Charging Party/Petitioner be corrected to read as captioned herein is hereby granted. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wal Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent also contends that the Administrative Law Judge's find- ings, rulings, and interpretation of the evidence show bias and prejudice on his part against Respondent. We find Respondent's allegations of bias and prejudice to be totally without merit, Upon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that he prejudged the case or demonstrated any bias against Re- spondent in his analysis or discussion of the evidence. In pars. 4 and 5, sec. III, E, 5, of his Decision, the Administrative Law Judge inadvertently refers to the companywide seniority dates of employ- ees Barbeau and Herron as being in 1976; the record establishes that Bar- beau's companywide seniority date is August 29. 1977, and Herron's is August 25, 1977. 3 The Administrative Law Judge inadvertently failed to include in his Conclusions of Law several violations of Sec. 8(a)(1) of the Act, which he found and we affirm. In this same regard, we note that, while the Ad- ministrative Law Judge found that Respondent violated Sec. 8(aXS) of the Act by unilaterally imposing new conditions on the possible transfer to other departments of employees scheduled for layoff from the press department on June 2, he inadvertently failed to include provisions relat- ing to this finding in his Conclusions of Law. Accordingly, we will modify his Conclusions of Law to reflect these provisions herein. 249 NLRB No. 96 challenges to the ballots cast by floorladies Evelyn Di Carlo and Alice Cote in that case, 4 on the grounds that they are employees rather than super- visors within the meaning of the Act. 5 In the in- stant unfair labor practice proceeding, however, the General Counsel has sought to have the em- ployee status of Di Carlo and Cote relitigated. The Administrative Law Judge found that, since Di Carlo is expressly alleged in the complaint to be a supervisor, and is further alleged to have engaged in unlawful conduct in violation of Section 8(a)(3) and (1) of the Act in her supervisory capacity, her status could be relitigated; 6 he further found, on the basis of the record evidence as to her duties and responsibilities, that she is a supervisor within the meaning of Section 2(11) of the Act. We agree with those findings. The Administrative Law Judge also found, how- ever, that he was prohibited by Section 102.67(f) of the Board's Rules and Regulations, Series 8, as amended, from permitting the relitigation of Cote's status. In his exceptions, the General Counsel con- tends that the Board should make a new determina- tion as to Cote's status because she performs essen- tially the same duties as Di Carlo. Inasmuch as Cote was not alleged to have engaged in any unfair labor practices and her status does not affect the unit finding of majority support for the Union, we find it unnecessary to make a determination of Cote's status. Accordingly, we find it unnecessary I The election was conducted on March 3. 178. pursuant to a Stipula- tion for Certification Upon Consent Election The tally was 121 for the Petitioner, 131 against, with 14 challenged ballots, a sufficient number to affect the results of the election Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election In his Report on Objections and Challenges, the Regional Director recommended that certain objections be overruled and that others be consolidated for hearing with the unfair labor practice proceeding herein He also recommended that certain of the challenges, including those to the ballots of Di Carlo and Cote. be overruled and that those ballots be opened and counted. In a decision not reported in the Board's volumes, the Board adopted those recommendations (no exceptions were filed to the recommendations concerning Di Carlo and Cote). Those ballots for which challenges were overruled were thereafter opened and counted, and a revised tally of ballots was issued, leaving unchanged the ultimate result of the election and making it unnecessary to resolve the challenges to other ballots, inasmuch as the number of still-unresolved challenged ballots was insufficient to affect the results of the election. With respect to the objections sent to hearing in the instant proceed- ing, we adopt the Administrative Law Judge's recommendation that Ob- jections 2, 3, 6, and 7 be sustained, as they are coextensive with certain unfair labor practices found to have been engaged in by Respondent in the instant case, and that the election therefore be set aside. In the ab- sence of exceptions thereto, we adopt, pro forma, the Administrative Law Judge's recommendation that Objection 4 be overruled. We do not adopt his recommendation to sustain Objection 1, for reasons set forth infra at fn. 22. a The job classification "leadpersons-floorladies" is expressly included in the appropriate bargaining unit stipulated to by the parties in the repre- sentation proceeding. 6 Amalgamated Clothing Workers of America Sagamore Shirt Co. I v. N.L.R.B., 365 F.2d 898, 902-905 (D C. Cir. 1966); Serv-U-Stores Inc., 234 NLRB 1143 (1978); Farm Fans, Inc., 174 NLRB 723 (1969); Stanley Air Too.,, Division of the Stanley Works, 171 NLRB 388 (1968) 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consider the General Counsel's assertion that a new determination of Cote's status would be con- sistent with the Board's decision in Serv-U-Stores, Inc., supra. 2. We have adopted the Administrative Law Judge's finding that Respondent violated Section 8(a)(5) of the Act by unilaterally formulating and implementing new terms and conditions for the transfer to other departments of employees selected for layoff.7 In addition, contrary to the Administra- tive Law Judge, we find that Respondent also vio- lated Section 8(a)(3) and (1) of the Act by impos- ing such conditions on transfers by pressroom em- ployees selected for layoff on June 2, 1978.8 The record shows that Respondent offered the pressroom department employees selected for layoff an opportunity to transfer to either the sol- dering or epoxy department in lieu of layoff. Such an offer of alternative employment was consistent with Respondent's past practice. However, Re- spondent for the first time imposed the following conditions on this offer: (1) transferees would for- feit their press department seniority and acquire new seniority in the department to which they transferred, dating from the date of transfer; (2) transferees would be treated as newly hired em- ployees in their new departments, with a starting wage commensurate to such status, which would mean a wage reduction for some transferees; and (3) the transfers would be permanent, and transfer- ees would be ineligible for recall to the press de- partment when work again became available there- in. The press department employees selected for layoff chose to accept layoff apparently in the hope of eventually being recalled to the press depart- ment. They recognized that the conditions imposed by Respondent would have permanently barred anyone who accepted a transfer from returning to the press department.9 The General Counsel contends that the Respond- ent imposed these conditions in an effort to break up the press department because it was a strong- hold of union support and a center of concerted ac- See fn. 3, supro. e We note that there is no allegation that the layoff itself was discri- minatorily motivated. g In this regard, Daniel Carr, a leader in the Union's organizational campaign, and a press department employee who, because of his senior- ity, was not affected by the June 2 layoff, testified that during the morn- ing break on that date, the press department employees gathered to dis- cuss the just-anltounced layoff and transfer conditions. According to Carr, all those selected for layoff elected to take the layoff, rather than be scattered among other departments in the plant. Thus: Everybody was going to take the layoff, rather than be dispersed. We didn't want to be . .. broken up. We thought we had a real good solid department and nobody wanted to go to other depart- ments . . . They wanted to get back to the press department so bad. tivity. Thus, the General Counsel pointed out that Respondent had in the past usually attempted to transfer employees rather than lay them off for lack of work, but it had never before imposed such conditions on transfer, Respondent's vice president, O'Brien, conceded that "It was generally acknowledged in the plant to everyone that the press department was heavily in favor of the Union."1 0 Indeed, within hours of the start of the Union's public campaign on Janu- ary 10, 1978,'1 the record reveals that Respond- ent's vice president, Danserau, advised Chairman of the Board Hedison that employees from the press department and the central stores department were the principal instigators of the considerable union organizational and campaign activity being conducted throughout the plant that morning. Thus, and in agreement with the Administrative Law Judge, we find that 3 days later on January 13, Respondent discriminatorily laid off 21 employ- ees plantwide, 19 of whom were union supporters. Twelve of the laid-off employees were union sup- porters from the press department. The conduct which the Administrative Law Judge found to be unlawful, and which continued unabated during the following 4 months, included interrogations, solici- tation of employees to spy on the union activities of their co-employees, threats of refusal to bargain and plant closure, implementation of rules restrict- ing union activity among the employees, threats of discipline, promises of benefits, solicitation of grievances, surveillance of union activity, and dis- criminatory layoffs. On May 12, 3 weeks before the press department layoff, the press department again became the focus of Respondent's attention. On that day, union ac- tivist Daniel Carr and union supporter Claire Sher- man, speaking for the press department employees, complained to the department foreman about unsafe working conditions and an unfair incentive system. They demanded a meeting with Vice Presi- dent O'Brien. On the following workday, May 15, O'Brien met with the press department employees as a group. The employees, many of whom spoke out individually, reiterated the complaints voiced by Carr and Sherman about safety and incentives. According to Carr's uncontroverted testimony, O'Brien claimed that, even though the press de- partment was "strongly pro-Union" and he knew that they were "all union supporters," he would deal fairly with them. O'Brien agreed to provide safety devices, review incentive rates, and permit employees to request that jobs which they consid- 10 In fact, 20 of the 24 employees in the press department at the time of the June 2 layoff had signed valid union authorization cards. I All dates hereinafter are 1978, unless otherwise stated. HEDISON MANUFACTURING COMPANY 793 ered to be dangerous be changed from piece rate to day work, so as to avoid accidents stemming from employees' efforts to work too speedily. On May 17, 2 days later, the union organizing committee distributed leaflets to the employees, trumpeting their meeting with O'Brien in these terms: HEDISON UNION NEWS HEDISON UNION ORGANIZING COMMITTEE R.I. WORKERS UNION PRESS WORKERS UNITE FOR SAFETY, AGAINST INCENTIVE SYSTEM The leaflet reported the substance of the May 15 meeting between O'Brien and the press department employees, and listed the "concessions" wrought from O'Brien in regard to safety devices, the incen- tive system, and dangerous jobs. The leaflet closed by stating that the success of the press department at the May 15 meeting was the result of its unified action and by reminding employees that "collective action is the best way to get ahead." Respondent concedes that it had knowledge of this leaflet from the time of its distribution at the plant on May 17. On June 2, 2 weeks later, Re- spondent laid off 14 press department employees, and imposed the alleged discriminatory transfer conditions. Thus, Respondent's pervasive and un- concealed union animus, as well as its special awareness of the concerted union activity engaged in by the press department employees, is well es- tablished on the record before us. It is in these cir- cumstances that we evaluate Respondent's asserted reasons for imposing the allegedly discriminatory transfer conditions. O'Brien testified that the transfers would have to be permanent because the workload projections for the press department at the time of the layoff indi- cated that it would be a "long time" before any of those laid off could be recalled to the press depart- ment. Thus, according to O'Brien, the employees affected by the layoff could choose to go into either the soldering or the epoxy departments to learn new skills, and, "hopefully," remain in Re- spondent's employ. In this context, Marilyn Jelli- son, one of the laid-off employees, testified that, at the time of the announcement of the layoff, the em- ployees were told by Respondent officials that "We would be given additional training in that [soldering or epoxy] department and [Respondent] wouldn't find it feasible to put us back in press after spending that time on us." We find this expla- nation of the permanent nature of these transfers unconvincing. Initially, we note there is no indica- tion in the record that the training required of new employees in the epoxy or soldering departments is any more extensive or costly than that required in the press department. Thus, there is no record evi- dence to justify, on such economic grounds, a re- fusal to allow transferred employees to return to the press department when such work again became available. Moreover, three of the affected employees-Leslie Barbeau, Carol Durand, and Theresa Dolinski-had prior experience in the sol- dering department. Thus, Respondent would not have incurred any retraining expenses which might have justified a refusal to permit the above-named employees to return to the press department. Re- spondent neither made exceptions to the permanent nature of the transfers offered these three employ- ees, nor did it offer an explanation for its failure to make such exceptions. It thus becomes clear that Respondent's imposition of such rules regarding transfer as an alternative to layoff was not based on economic considerations, but rather formed a part of its unlawful strategy to combat the attempts of its employees to engage in protected activity. Respondent's explanation for reducing the wages of some transferees is equally unconvincing. Thus, O'Brien testified that the transferees were to be treated as unskilled workers and were to receive training in their new departments, with their initial level of compensation to be based on their lack of experience. O'Brien also testified that any subse- quent wage increases received by the transferees were to be dependent upon their demonstrated ability to perform the new jobs. Respondent's as- serted justification for reducing the wages of the transferees, however, fails to explain the necessity of reducing the wages of Barbeau, Durand, and Dolinski. As previously discussed, these employees had experience in the soldering department and did not require any additional training. There was thus no justification for paying them as newly hired trainees; neither did Respondent offer any explana- tion as to why it intended to treat Barbeau, Durand, and Dolinski as inexperienced soldering department employees. Finally, Respondent's explanations for the impo- sition of the transfer conditions on June 2 are fur- ther undermined by its treatment of employees in the casting department. On June 12, only 10 days after imposing restrictive conditions on the transfer of employees in the press department, Respondent laid off four employees in the casting department. Respondent offered the casting department em- ployees transfers in lieu of layoff, but, unlike the press department employees, it did not impose any 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the aforementioned restrictions on their trans- fers. 12 Respondent contends that it was under no obli- gation to offer transfers to the press department employees, and that it could have laid off these em- ployees without offering them alternative employ- ment. Respondent misses the point. The record re- flects, and as noted above, Respondent had, as a past practice, offered departmental transfer as an alternative to layoff. Moreover, the transfers had always been offered free of any such conditions as imposed here. We therefore find that the record fully supports the General Counsel's contentions that Respondent imposed restrictions on transfers by press department employees in retaliation for the support of the Union by those employees, and because they engaged in protected concerted activ- ity. In addition, and as fully discussed, the press de- partment was an acknowledged stronghold of union support, and Respondent's discriminatory treatment of these employees was designed to un- dermine and dissipate support for the Union. We therefore find Respondent's asserted reasons for its disparate treatment of the press department em- ployees to be pretextual and advanced to conceal Respondent's discriminatory motive. Accordingly, we find that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily imposing conditions on and thereby restricting the transfer of the press department employees. 1 3 3. The Administrative Law Judge found, and we agree, that the June 2 layoff in the press depart- ment violated Section 8(a)(5) of the Act for the reason that Respondent unilaterally arrived at and implemented its layoff decision in derogation of its obligation to bargain with the Union. Accordingly, the Administrative Law Judge's recommended Order requires that Respondent offer immediate and full reinstatement to each of the laid-off em- ployees, and make them whole for any loss of earn- ings they may have suffered as a result of Respond- ent's unilateral decision to lay them off. We agree. However, the Administrative Law Judge has also recommended that the ultimate determination 12 Indeed, one casting department employee accepted temporary trans- fer to the soldering department, with no reduction in pay, because of her prior experience therein-quite different from the treatment accorded Barbeau. Durand. and Dolinski, who would have been required to accept permanent transfer to the soldering department, with reduction in pay, in spite of their previous experience therein. 13 In reaching this conclusion, we note that three of the press depart- ment employees in question-Jane Lavoie, Marion Lymburner, and Mary Kucharski-were not affirmatively shown to have been union supporters Nevertheless, we find that they were, to borrow the words of the Ad- ministrative Law' Judge, "caught in the web of their fellow employees' union adherence . [and] were swallowed up in Respondent's desperate and precipitous attempt to crush the Union." Thus, these three employees were discriminated against just as much as if they, too, had been active union supporters. Computed Time Corporation, 228 NLRB 1243 1977); Howard Johnson Company, 209 NLRB 1122 (1974). of the actual extent of any given employee's enti- tlement to backpay arising from the June 2 layoff should be conditioned upon a determination in the compliance proceedings of the extent of the June 2 layoff if Respondent had given the Union the op- portunity to bargain about the layoff. We disagree and, therefore, do not adopt this aspect of the Ad- ministrative Law Judge's recommended remedy. While we agree with the Administrative Law Judge that the press department employees were laid off because of a lack of work in that depart- ment, it is nevertheless clear that these employees were effectively denied alternative available em- ployment elsewhere in the plant. As set forth above, we have found that Respondent placed dis- criminatory restrictions on their transfers. Since the press department employees were under no obliga- tion to accept these unlawfully imposed restric- tions, they were warranted in refusing to do so. It was their refusal to accept the unlawful transfer conditions, and their acceptance of layoff instead, which ultimately caused their loss of employment plantwide, not merely their loss of employment in the press department. Thus, Respondent effectively engaged in a discriminatory selection of the press department employees for layoff. Accordingly, in order effectively to remedy Respondent's discrimi- nation, we find that the press department employ- ees are entitled to reinstatement and backpay with- out regard to any effect the June 2 layoff might have had on them if the parties had bargained in good faith about the layoff. 4 4. Based upon charges filed in Cases -CA- 14085 and 1-CA-14086, respectively, the amended consolidated complaint alleges that on January 31 Respondent discharged central stores department employees James Ferreira,' Glen Hutloff, Thomas Lawton, and Russell Moison, in violation of Sec- tion 8(a)(3) and (1) of the Act, and that on January 30 Respondent discharged Gary McKiernan, super- visor of the central stores department, in violation of Section 8(a)(1) of the Act. Respondent contends that the aforementioned individuals were lawfully '4 See Coated Products. Inc.. 237 NLRB 159 (1978), where the Board found that the respondent, while engaged in the relocation of its plant, was "determined to minimize the prounion segment of its workforce at the new facility]" by terminating employees rather than offering them transfers. The Board in that case ordered reinstatement and backpay, stat- ing that "the issue of which discriminatees would have accepted transfer offers should be resolved against Respondent inasmuch as Respondent, by its unlawful conduct, prevented these employees from transferring." Likewise, Respondent here, by discriminatorily imposing conditions on the transfer of the press department employees, denied them the opportu- nity to escape layoff, ad thereby unilaterally abandoned its own past practice. Thus, Respondent cannot now claim that its discarded past practice insulates it, in whole or in part, from liability 5 In his recommended Order and in his notice, the Administrative Law Judge inadvertently referred to James Ferreira as Thomas Ferreira. HEDISON MANUFACTURING COMPANY 795 discharged because they engaged in or condoned an intentional work slowdown in their department. In section III, D, I, of his Decision, the Admin- istrative Law Judge found, on the facts and for the reasons set out therein, that Respondent unlawfully discharged employees Ferreira, Hutloff, Lawton, and Moison solely because of their union activities, and that Respondent's discharge of Supervisor McKiernan was unlawful because it was an integral part of Respondent's pattern of conduct aimed at penalizing its employees for their union activities and was part of Respondent's overall strategy for ridding itself of the Union. Respondent contends that these findings cannot be sustained, because the Administrative Law Judge denied Respondent due process by preclud- ing it from presenting any evidence or testimony as to the reasons for the central stores department dis- charges. As set forth below, we find that the Ad- ministrative Law Judge erred in precluding Re- spondent from presenting any defense on this issue, and we therefore do not adopt his findings in regard to these discharges. In support of the contention that the central store discharges were unlawful, the General Coun- sel sought to call Respondent's chairman, Harry D. Hedison, as a witness. Although Hedison was prop- erly served with a valid subpoena ad testificandum, he refused to comply therewith. In view of Hedis- on's refusal to comply with the subpena and testify, the Administrative Law Judge precluded Respond- ent from calling Hedison as a witness and from in- troducing any evidence regarding the central stores department discharges.6 In light of Respondent's unjustified refusal to comply with General Coun- sel's valid subpena of Hedison, we find that the Administrative Law Judge's ruling, precluding He- dison from testifying on Respondent's behalf-in- cluding testifying about the allegedly unlawful dis- charges in the central stores department-was fully warranted.17 However, we do not affirm that part of the Administrative Law Judge's ruling set out in Appendix I of his Decision which also precluded Respondent from calling witnesses other than He- dison, or from introducing other evidence on its behalf, in regard to the allegedly unlawful dis- charges of the central stores department supervisor and employees. In support of his ruling precluding Respondent from presenting any defense to the allegations in question, the Administrative Law Judge cites Bannon Mills, supra, and American Art Industries, 16 The Administrative Law Judge's ruling is summarized at fn 10 of his Decision and set out in full in Appendix I of his Decision "? Louisiana Cement Company, 241 NLRB No 83 (1979); see Bannon Milk. Inc., 146 NLRB 611. 633-634 (1964). Inc., 166 NLRB 943 (1967),' 8 wherein the respond- ents had refused to comply with subpoenae duces tecum of certain documents. The respondents in those cases were then prohibited from presenting documents or other evidence as to the matters dealt with in the documents. Since the subpenaed documents were the "best evidence" of the matters to be proved by those documents, the refusals to comply with the subpenas foreclosed the respond- ents from presenting secondary, or less reliable, evidence to prove the matter in issue. Unlike the situations in Bannon Mills, supra, and American Art Industries, Inc., supra, cited by the Administrative Law Judge, the issue as to whether the central stores department discharges were un- lawful does not involve any underlying factual question about the contents of documents or tape recordings, but rather involves the issue of Re- spondent's motivation for the discharges. In this regard, Respondent's assertion that the employees' discharges were precipitated by an intentional work slowdown, and the supervisor's discharge was precipitated by his failure to take appropriate corrective action against such slowdown, must rest upon the testimony of witnesses as to relevant events. Thus, the "best evidence" rule involved in Bannon Mills and American Art Industries is not ap- plicable to the central stores department discharges in question. Accordingly, we find that the Administrative Law Judge's ruling precluding all testimony and evidence pertaining to the central stores depart- ment discharges was, to the extent it went beyond the exclusion of Hedison's testimony, prejudicial to Respondent's right to defend itself against the alle- gations of unlawful conduct in regard to those dis- charges. Therefore, we shall sever Cases -CA- 14085 and 1-CA-14086 from the instant proceed- ings, and remand these cases to the Administrative iR The Administrative Law Judge also refers to the court's decision In International Union. United Automobile. Aerospoce. and Agricultural Impl- ment Workers of America [Gyrodyne Company of America] v. N.L.R.B.. 459 F.2d 1329 (D.C. Cir. 1972). But the court's decision in Gyrodyne dealt exclusively with the question of whether the Board could, without expla- nation, properly decline to draw an adverse inference from a respondents refusal to comply with the General Counsel's subpoena duce. tecum of relevant documents. Thus, Gyrodyne dealt with an evidentiary and proce- dural issue quite distinct from that in question here. and it is therefore inapposite. 10 Indeed, following the Administrative Law Judge's ruling to pre- clude Respondent from introducing any evidence in regard to these dis- charges, Respondent made an offer of proof to the effect that Plant Su- perintendent Marinelli was prepared to testify that he, not Hedison. made the decision to discharge the supervisor and employees in question, be cause of what he determined, on the basis of his own investigation, to be an intentional work slowdown on the part of the employees, and the in- competence of the supervisor in failing to correct it. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Law Judge for supplemental proceedings in ac- cordance with our accompanying Order.2 0 5. Notwithstanding the as-yet-unresolved ques- tion of whether Respondent unlawfully discharged its central stores department supervisor and em- ployees, we shall not hold in abeyance our Order requiring Respondent to cease and desist from en- gaging in the activity found to be unlawful and to take the affirmative action to remedy such viola- tions of the Act. Resolution of the remanded cases will not affect our conclusion that the extensive and pervasive unfair labor practices enaged in by Respondent had a tendency to undermine the Union's majority support,2 1 and to impede the election process. 2 2 Thus, Respondent engaged in a course of protracted unlawful conduct ranging from the discriminatory layoff of 21 employees, the unlawful imposition of conditions for transfer on 14 others, threats of reprisal, and acts of surveillance and coercive interrogation directed at a substantial number of employees. In these circumstances, re- gardless of the outcome on the merits of the allega- tions of unlawful conduct in connection with the central stores department discharges, we find, for the reasons set out in the Administrative Law Judge's Decision, 2 3 that a bargaining order is war- ranted as part of the remedy for the unfair labor practices committed by this Respondent. 2 4 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 6 and 7: "6. By imposing a new rule prohibiting employ- ees from visiting their fellow employees in other departments during morning, afternoon, and lunch break periods and threatening employees with dis- 20 Member Truesdale agrees with his colleagues that the Administra- tive Law Judge erred by precluding Respondent from introducing any evidence regarding the discharges in the central stores division and hence that Cases -CA-14085 and -CA-14086 must be remanded for supple- mental proceedings. Given the current posture of this case, Member Truesdale finds it unnecessary to comment at this time on the propriety of the Administrative Law Judge's reliance on the so-called "integral part" line of cases in connection with Supervisor Gary McKiernan's dis- charge. 21 The ultimate outcome of the supplemental proceedings ordered herein in regard to the discharge of the central stores department em- ployees on January 31 will have no effect on our adoption of the Admin- istrative Law Judge's finding that the Union enjoyed majority support among the employees on January 12. 22 Since the Union's Objection I to the election conducted in Case I- RC-15542 was based on the alleged illegality of the discharges of the four central stores department employees, and inasmuch as we do not make any findings on the merits of those allegations at this time, we do not adopt the Administrative Law Judge's recommendation to sustain that objection. We also do not find it necessary to remand that objection to hearing or to pass upon it in light of our finding that the conduct, of Respondent which we have found to be objectionable, is itself sufficient to set aside that election. 23 As noted above, we have not adopted the Administrative Law Judge's finding that Respondent unlawfully discharged the central stores department employees and supervisors. 24 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). cipline for violation of that rule; by imposing a new rule prohibiting employees from posting union-related or union literature on Respondent's bulletin boards and threatening employees with dis- cipline for violation of that rule; by granting a week's wages to certain of Respondent's employees for the week of February 6, 1978; by promising employees advancement and other benefits and im- provements in order to discourage their union ac- tivities; by soliciting employees to adjust their grievances for the purpose of dissuading employees from joining, assisting, or supporting the Union; by changing incentive rates and standards; by chang- ing the method for determining the seniority of its employees; by imposing new terms and conditions on the transfer of employees selected for layoff; by imposing new rules prohibiting the playing of radios and the use of pay telephones during work- ing hours-all without bargaining with the Union-Respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. "7. By interrogating employees concerning their union activities or the union activities of their fellow employees; by asking them if they or their fellow employees had signed union authorization cards; by asking employees to spy on the union ac- tivities of their fellow employees; by threatening employees that Respondent would close if the Union were successful in organizing Respondent's employees; by threatening employees with dis- charge for engaging in union activities; by disci- plining an employee because he engaged in union activities; by polling employees about their union sympathies; by illegally surveilling the union activi- ties of employees; by restricting employee access to work areas in order to discourage union activities; by threatening employees with the withholding of wage increases from employees in order to discour- age their union activities; by prohibiting employees from posting notices on Respondent's bulletin boards in order to discourage their union activities; by soliciting employee grievances and complaints and expressly or impliedly promising to take reme- dial action and by promising any improvements in terms and conditions of employment, all for the purpose of dissuading employees from supporting a union; by telling employees that Respondent would never bargain or sign a contract with the Union, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act." - - - HEDISON MANUFACTURING COMPANY 797 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Hedison Manufacturing Company, Lincoln, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(f): "(f) Making or enforcing work rules restricting employees from visiting plant areas during their lunch hours or break periods or from posting no- tices on Respondent's bulletin board or by chang- ing the terms and conditions of employment to re- strict employees from access to other areas of Re- spondent's plant, in order to prevent employees from engaging in union activities." 2. Substitute the following for paragraph 10(j): "(j) Discouraging membership of its employees in or support of the Union, or any other labor or- ganization, by laying off any of its employees or imposing conditions on their transfer or discrimi- nating in any manner in respect to their hire and tenure of employment or any term or condition of employment, in violation of Section 8(a)(3) of the Act." 3. Substitute the following for paragraph 2(d): "(d) Offer to each employee laid off on January 13 and June 2, 1978, if it has not already done so, immediate and full reinstatement to his or her former position of employment or, if that position no longer exists, to a substantially equivalent posi- tion of employment without prejudice to his or her seniority or other rights and privileges previously enjoyed, and make each employee and Tracy Fitz- patrick and Laycie Monteiro whole in the manner provided in the section of the Administrative Law Judge's Decision entitled 'The Remedy,' as modi- fied by the Board's Decision and Order, for any loss of wages and other benefits he or she may have suffered from the date of his or her unlawful layoff or discharge, as the case may be, until the date of such offer of reinstatement." 4. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election in Case -RC-15542 be, and it hereby is, set aside, and that Case -RC-15542 be, and it hereby is, dis- missed. IT IS FURTHER ORDERED that Cases -CA-14085 and -CA-14086 be, and they hereby are, severed from the instant proceeding; that the record in regard to those cases be, and it hereby is, reopened; and that the proceedings in regard to those cases be, and they hereby are, remanded to Administra- tive Law Judge Benjamin Schlesinger for the pur- pose of permitting the Respondent to present testi- mony and other evidence concerning the alleged unlawful discharge of Supervisor Gary McKiernan and employees James Ferreira, Glen Hutloff, Thomas Lawton, and Russell Moison, except that Respondent is not permitted to offer testimony from its chairman, Harry D. Hedison, in regard to these matters. General Counsel and the Charging Party are permitted to cross-examine any of Re- spondent's witnesses testifying pursuant to this remand, and to offer such rebuttal evidence as is relevant. Thereafter, the Administrative Law Judge shall prepare and issue a Supplemental Decision setting forth, where required, a resolution of the credibility of witnesses who have so far testified on behalf of the General Counsel and the Charging Party as to the matters encompassed within the scope of this remand, as well as of any witnesses who testify in the supplemental proceedings or- dered herein, and containing findings of fact, con- clusions of law, and a recommended Order with regard to the unfair labor practice allegations en- compassed within the scope of the remand; i.e., paragraphs 8(n) and 10 of the amended consoli- dated complaint. Following service of such Supple- mental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions, Series 8, as amended, shall be applicable. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT question you about your union membership, activities, or sympathies or those of your fellow employees, and WE WILL NOT poll you as to such membership, activities, or sympathies. WE WILL NOT try to frighten you from sup- porting the Rhode Island Workers Union, Local 76, Service Employees International Union, AFL-CIO, or any other union, by threatening or telling you that we will close our plant, or never bargain or sign a contract with a union if you choose a union to repre- sent you. A_ 798 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD WE WILL NOT threaten you with discharge, discipline, or with any other reprisals to dis- courage you from joining or supporting a union. WE WILL NOT retaliate against our employ- ees because they joined or assisted a union by making their working conditions more undesir- able, onerous, or arduous. WE WIll. NOT ask other employees to spy on you or otherwise keep your union activities under surveillance to discourage you from en- gaging in union activities. WE WILL. NOT retaliate against you for, or try to prevent you from, engaging in union ac- tivities by making or enforcing work rules which will restrict employees from visiting plant areas during lunch hour or break periods or using bulletin boards or by changing the terms and conditions of employment to restrict employees from access to other areas of our plant. WE WILL NOT inform our employees that because of the union election petition no wage increase may be granted, and WE WIll. NOT withhold the grant of increases for that reason. WE WILL NOT expressly or impliedly prom- ise to give you improved benefits or better working conditions or solicit or promise to adjust your grievances for the purpose of dis- couraging you from engaging in activities on behalf of the Rhode Island Workers Union, Local 76, Service Employees International Union, AFL-CIO, or any other labor organi- zation. WE WILL NOT discourage our employees from being members of the above-named labor organization or any labor organization, by laying off our employees, selecting them for layoff, by imposing conditions on their trans- fer, or by refusing or delaying to recall them, or by disciplining them or by otherwise dis- criminating against employees with respect to their hire, tenure, or terms and conditions of their employment with our Company. WE WILL NOT refuse to bargain with the above-named Union as the exclusive repre- sentative of all our employees in the following bargaining unit: All full-time and regular part-time produc- tion and maintenance employees employed by us at our 11 Wellington Road, Lincoln, Rhode Island, and 116 Chestnut Street, Providence, Rhode Island, facilities, includ- ing leadpersons-floor ladies and plant cleri- cal employees, but excluding all office cleri- cal employees, technical employees, profes- sional employees, salespersons, seasonal em- ployees, guards, foremen, assistant foremen, and all other supervisors as defined by the Act. WE WILL NOT unilaterally change the rates of pay, wages, hours of employment, and other terms and conditions of employment in- cluding, but not limited to, layoffs, seniority rights and policies relative to layoffs, payments for days when the plant was closed because of snow, incentive rates and standards of employ- ees in the above-described bargaining unit, and rules regarding your use of bulletin boards for the posting of union-related or union leaflets and your right to visit other plant areas during lunch hour or break periods, to play your radios, and to use the pay telephones without first notifying and thereafter affording the above-named Union as the exclusive bargain- ing representative for our unit employees the opportunity to bargain over said matters; with- out prejudice, however, to any improved bene- fits we have granted. WE WILL NOT threaten you with discipline for violations of our unilaterally imposed rules and regulations. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join the above- named or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concert- ed activities for the purpose of mutual aid and protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activi- ties. Employees are free to join the Union without fear of reprisals for so doing. WE WILI offer the following listed employ- ees whom we discriminatorily laid off on Janu- ary 13, 1978, full and immediate reinstatement (unless we have already recalled them) to their former jobs, or, if those no longer exist, to substantially equivalent jobs without loss of se- niority or other rights and privileges previous- ly enjoyed; and WE WILL make each of them whole for any backpay lost as a result of our discrimination against them, with interest: Daniel Bedard Dan Carr Mark Caya Annette Chicoine Ivory Clements Thomas Lawton Rachel Leduc Cheryl Silva Luba Green Anthony Lopes Maurice Kujawski Sandra Rattie Helen Dufresne Katherine Bourque HEDISON MANUFACTURING COMPANY 799 Deborah Marsella Helene Rondeau Thomas Rattie Blanche Descy Theresa Robertson Suzanne Lariviere Susan Sherman WE WILL (unless we have already done so) offer the following listed employees whom we unilaterally laid off from the press room on June 2, 1978, and against whom we discrimina- torily imposed conditions on their transfer, full and immediate reinstatement to their former jobs, or, if those no longer exist, to substantial- ly equivalent jobs without loss of seniority or other rights or privileges previously enjoyed; and WE WILL make them whole for any back- pay lost as a result of our unilateral decision to lay them off, with interest: Lisa Barbeau Theresa Gaulin Leslie Barbeau Jane Lavoie Theresa Dolinski Linda Archambault Suzanne Lariviere Marilyn Jellison Shirley Leonard Carol Durand Annette Mary Philopovich Kucharski Marion Beverly Lafferriere Lymburner WE WILL make Tracy Fitzpatrick and Laycie Monteiro whole for any backpay lost by them as a result of our unlawful discrimina- tion causing them to be laid off from the link- ing department in March 1978, with interest. WE WILL, upon request, recognize and bar- gain collectively in good faith with the above- named Union, the exclusive collective-bargain- ing agent of all our employees in that unit with respect to wages, hours, terms, and con- ditions of employment, and all other matters appropriate for collective bargaining; and, if agreements are reached, WE WILL put them in writing, if requested, and will sign that written document. The collective-bargaining obliga- tion which we undertake will be retroactive to January 12, 1978. If the Union requests that we do so, WE WILL set aside the layoffs and changes of our rules and practices, which we previously made unilaterally; and WE WILL resume our policy of permitting employees to play their radios, to make telephone calls during working hours, and to visit employees in other departments during morning and afternoon break periods and lunch break and WE WILL permit you to post union-related or union notices on our bul- letin boards. WE WILL make all employees whole for any loss of earnings they may have incurred as a result of our unlawfully changing their incen- tive rates since January 12, 1978, with interest. HEDISON MANUFACTURING COMPA- NY DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: This consolidated unfair labor practice and representa- tion proceeding was heard by me in Providence, Rhode Island, during 18 days of hearing in August, September, and October 1978.' The amended consolidated com- plaint, dated August 9, 1978, as further amended during the course of the hearing, alleges 362 independent viola- tions by Hedison Manufacturing Company (Respondent) of Section 8(a)(1) of the National Labor Relations Act, as amended, including allegations of interrogation, poll- ing of employees, surveillance, impression of surveil- lance, requests to spy, promises and grant of benefits, so- licitation of grievances, threats to withhold wage in- creases, to close the plant, to discharge employees, and to refuse to bargain with the Union, unilateral changes of terms and conditions of employment, imposition of new rules and more onerous working conditions, revocation of assignments of employees, and restriction of employ- ees' movements. In addition, the complaint alleges dis- criminatory discharges and layoffs of 43 employees in violation of Section 8(a)(3) and (5) and the discharge of one supervisor in violation of Section 8(aX1). Finally, the complaint alleges violations of Section 8(aX5) by reason of the General Counsel's request for a retroactive, Gissel3 bargaining order as appropriate relief-even if it should be found that a majority of Respondent's employ- ees never authorized the Charging Party, Rhode Island Workers Union (herein called the Union), to represent them as their exclusive bargaining representative. The amended complaint was based on six charges filed by the Union; one on January 16; two on January 31; two on March 24 (one amended on April 26); and one on June 9. In the representation case, the issues presented are, with one exception, identical. Pursuant to a Stipulation for Certification Upon Consent Election executed by Re- spondent and the Union on January 24, and approved by the Regional Director for Region 1 on January 26, an election was conducted on March 3, the appropriate unit (according to the amended consolidated complaint) being: All full-time and regular part-time production and maintenance employees of Respondent employed at its 11 Wellington Road, Lincoln, Rhode Island and 116 Chestnut Street, Providence, Rhode Island facilities, including leadpersons-floor ladies and I Unless otherwise indicated, all events herein occurred in 1978. 2 In his brief, the General Counsel withdrew par. 8j) of the amended consolidated complaint. 3 NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). (X) I)ECISIONS ()F NATIONAI. LABOR RELATIONS BOARD plant clerical employees, but excluding all office clerical employees, technical employees, profession- al employees, salespersons, seasonal employees, guards, Foremen, Assistant Foremen, and all other supervisors as defined in Section 2(11) of the Act. The Union lost the election and filed timely objections to certain conduct affecting the results of the election. On April 27, the Regional Director for Region 1 issued his Report on Objections and Challenged Ballots, recom- mending that the following objections be consolidated for hearing herein: I. Discriminatory discharge of James Ferreira, Glen Hutloff, Thomas Lawton, and Russell Moison, all members of the bargaining unit on January 31, 1978. 2. Discriminatory layoff of several bargaining unit members on or about January 13, 1978. 3. Promise of benefits to bargaining unit mem- bers. 4. Surveillance of union activists. 6. Change in work rules to discourage union ac- tivity. 7. (Number supplied) By these and other acts, the above named employer [Respondent] has interfered with, restrained, and coerced employees in the exer- cise of the rights guaranteed in Sec. 7 of the Act. All of the above objections are identical to or closely related to conduct alleged in the consolidated complaint as unfair labor practices, with the exception of allega- tions of additional surveillance under Objection 4, to wit, that supervisors were stationed in the corridors during the election, immediately outside the voting area, as well as evidence of an incident of an eligible voter being driven by Respondent from the Lincoln, Rhode Island, voting site to the Providence, Rhode Island, voting site. Because neither Respondent nor the Union filed excep- tions to the Regional Director's report and recommenda- tions, on May 24, the Board adopted the recommenda- tions made therein. The Regional Director also overruled the challenges to the ballots of certain individuals, including floorladies Evelyn Di Carlo and Alice Cote, whom he found to be employees under the Act, and recommended that their ballots be opened and counted and a revised tally of bal- lots be issued. The Board agreed with this recommenda- tion. Subsequently, a revised tally of ballots was issued showing that certain remaining challenged ballots were not determinative of the results. Accordingly, no issue of challenged ballots is before me. However, the General Counsel alleges in his amended consolidated complaint that both Di Carlo and Cote are supervisors and, relying on Serv-U-Stores Inc., 234 NLRB 1143 (1978), urges that their status may be reliti- gated. There, the Board permitted relitigation of the su- pervisory status of store managers who had been found to be employees in an earlier representation case, one of whom in the subsequent unfair labor practice case was alleged to be a supervisor for the purpose of establishing a violation of Section 8(a)(1) and (3) of the Act. Because the General Counsel sought a bargaining order, necessi- tating that the unit be established with precision to deter- mine whether the union had a majority, and notwith- standing that other store managers were not alleged to have engaged in 8(a)(1) conduct, the Board held that it "would have been unrealistic to bar from relitigation the supervisory status of the other store managers, particu- larly in light of the assertion at the hearing by Respond- ent's counsel that the duties of all the store managers were 'essentially the same."' (234 NLRB at 1144). Because Di Carlo is alleged to have participated in the layoff of employees Tracy Fitzpatrick and Laycie Mon- teiro in late March, her status may be relitigated. I will accord the Regional Director's report only "'persuasive relevance,' a kind of administrative comity." Amalgamat- ed Clothing Workers of America [Sagamore Shirt Co.] v. N.L.R.B., 365 F.2d 898, 905 (D.C. Cir. 1966). There is no allegation that Cote engaged in any viola- tion of the Act, although whether she is included in the unit, like the store managers in Serv-U-Srores, may be critical to the resolution of the General Counsel's request for a bargaining order and thus the further allegations that Respondent refused to bargain in violation of the Act. However, unlike Serv-U-Stores, there was no con- cession that the duties of all floorladies were essentially the same, although there was some indication that the duties of Di Carlo and Cote were similar. Because other floorladies and leadpersons were found to be employees and their status has not been attacked by the General Counsel, I find that Serv-U-Stores does not authorize the relitigation of Cote's status. Rather, Section 102.67(f) of the Board's Rules prohibits the same, especially since the General Counsel's request for a bargaining order raises essentially the same issue of the scope and composition of the appropriate unit which would not be relitigated in a 8(a)(5) case based on certification in a representation proceeding. Amalgamated Clothing Workers, supra at 902-905. On the entire record in this case,4 including my obser- vation of demeanor of the witnesses,5 and after due con- sideration of the briefs submitted, I make the following: FINDINGS O FACT I. THE BUSINESS OF RESPONDE)NT Respondent admits that it is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Rhode ' Errors in the transcript are hereby nlted and corrected 1o extent that there is testimony which conflicts with my findings. I credit the witnesses uponl whose testimony I rely In making these credi- bility findings, I have fully reviewed the etlire record and carefully ob- served the demeanor of all the witnesses I have also taken into consider- altion the apparent interests of the witnesses: the inherelnt probabilities in light of other events: corroboration or lack of i; and cinsistencies or i- colsistencies within the testimoiloy of each Avitness and between the tesil- mon)y of each and hat of other v itlesses with similar appareit nterests. Tesimony in contradiclioln to that upon which my factual firndings are based has been carefully considered but discredited. Where necessary however I have set fiorth he precise r-easons fi r ily credibility resolu- tions See, generally. N L.R B v Wlison Manufactrlrig (Compauny, t al. 3t9 U S. 40( 408 (1902) HEDISON MANUFACTURING COMPANY 801 Island. Since July 1977, it has maintained its principal office and place of business in Lincoln, Rhode Island, where it has manufactured costume jewelry for sale and distribution. Respondent further concedes that, in the course and conduct of its business, it had caused large quanitities of metals used by it in the manufacture of its jewelry to be purchased and transported in interstate commerce from and through various States of the United States other than the State of Rhode Island. Respondent annually receives from points directly outside the State of Rhode Island goods having a value in excess of $50,000 and ships goods valued in excess of $50,000 di- rectly to points outside the State of Rhode Island. As a result, Respondent concedes that it is, and had been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOt VED The Union, as Respondent admits, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union Goes Public and Respondent Counters-January 10-12 A secret campaign to organize Respondent's workers began in late spring and early summer of 1977, slowly building support and culminating with a meeting of ap- proximately 42 union supporters held in Woonsocket, Rhode Island, on Monday evening, January 9, 1978, at which it was decided to openly seek employee support the following morning. At that meeting were some of the alleged discriminatees in this proceeding--Ferreira, Hutloff, Lawton, Tracy Fitzpatrick, Cheryl Silva, There- sa Robertson, Valerie LePere, June Lockhart, Dan Carr, Michael Jalette, Annette Chicoine, Marc Caya, Donald Cook, Susan Sherman, Deborah Marsella, Mary Ackaway, Suzanne Lariviere, Ivory Clements, Lisa and Leslie Barbeau, Anthony Lopes, and Linda Archam- bault. The following morning, January 10, the union cam- paign went "public." Leafletters roamed the production employees' parking lot, handing out leaflets and attempt- ing to sign up employees as they arrived in their cars to report for work; and other employees, including Sher- man, handed out leaflets and authorization cards on the free bus which brought employees from Providence to Respondent's Lincoln facility. Quite naturally, the ap- pearance of leafletters aroused, at the very least, the curi- osity of Respondent's officials. Ray Dansereau, then vice president in charge of manufacturing, 6 was advised about 7 a.m. by William Pollen, Respondent's security guard, that Carr, Ferreira, Fitpatrick, LePere, and Joseph Pine were in the parking lot handing out union leaflets, a copy of which was given to Dansereau; and Dansereau immediately went to the parking lot where he remained for 10 minutes. Dansereau then returned to his office until the expected arrival time of the free bus, when he Dansereau as discharged on or about January 20 W'illiam H O'Brien, Jr. became the new ice president of operaltiom on February 6 went back to the parking lot and watched the leafleting continue for another 15 minutes. At the same time, other employees were assigned to leaflet and obtain authorization cards in the production workers' cafeteria; while others were assigned to tape leaflets to the walls, mirrors, and stalls of the bathrooms and the walls of the halls and to post leaflets on Re- spondent's bulletin boards. By 7:45 a.m., the employees had returned to their places of work for the commence- ment of the normal workday, but leafleting and attempts to get authorization cards signed continued during the morning break, lunch hour, and the afternoon break. When the union campaign surfaced, it is apparent that Respondent's officials were for the most part shocked and surprised. Although there had been some rumors within the past few weeks about some organizing activi- ty, they seem to have been almost entirely disregarded.' The open union solicitation on January 10 was, in one witness' words, an "unusual" event; and management sought to ascertain why it came about. Indeed, by Janu- ary 19, when Respondent held a cocktail dinner meeting of its supervisors, Respondent was still looking for the causes of its employees' unrest, as well as the strength of the Union in its various departments. On January 10, Dansereau spoke with Harry D. (Hike) Hedison, Re- spondent's chairman of the board, and isolated the press and central stores departments as instigators of the unrest. Robert H. Graham, Respondent's vice president in charge of administration, admitted, only after several appearances on the witness stand, that latter in the week of January 9 he spoke to Carl Duke, foreman of the pick room (also known as the finished goods stockroom), Larry M. Graydon, foreman of the soldering department, and Frank Siniscalchi, foreman of the carding and wrap- ping departments, and possibly others, asking them to give their estimates of union strength in their depart- ments. Graham also admitted that foremen gave him esti- mates of union strength throughout the election cam- paign. There is also ample evidence of the fact that Re- spondent's management had some knowledge of the Woonsocket meeting and that Dansereau, Graham, Louis Marinelli, Respondent's production manager, and Robert Callahan, Respondent's personnel manager, discussed who was present. With this background, I find that, on January 10, Graydon asked employee Marsella if she had signed a union card or was involved with the Union and who else was involved in the Union. Graydon also asked the same questions of three other employees in the department. Marsella told Graydon that he had no right to ask those questions--that it was against the law to ask employees about the Union and whether they signed cards. After the lunch break on January 10, Robert Clements, foreman of the press department, asked press department employees Carr and Al Benoit how everything was going with the Union. Carr shrugged his shoulders. Cle- ments asked whether Carr thought that the Union would get in. Carr again shrugged. Clements then said that, at the last place he worked, union dues increased from $6 ' On January 3. Giar McKier;nan. freman of the central stores de partment, was told by Di Carlo that an organizing campaign was under- way and that Hutloff and LePere were the leaders ,of it 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to $15 per month. Carr said nothing, and the one-sided conversation ended. Shortly before the end of the workday, Dansereau asked to see Hutloff in Dansereau's office, where Dan- sereau asked him what the people were so upset about. Hutloff replied that asking him was illegal and that he did not care to respond. Dansereau claimed that he did not want to know what was going on; rather, he just wanted to know what the people were so upset about. Hutloff suggested that Dansereau read the leaflets that were being distributed. Dansereau then asked whether Hutloff thought the people were really upset. Upon Hut- loffs failure to respond, Dansereau asked whether it was a true statement that the people were really upset. Hut- loff replied that Dansereau would find out one way or another. Dansereau then said that that was all he wanted to talk about. Dansereau testified that he did not recall talking with Hutloff. Considering Dansereau's testimony in its totality, and specifically noting that Dansereau's recollections of events were vague and, in many re- spects, contradictory of other Respondent's witnesses, I discredit his denial. I find that these three considerations (pars. 8(a), (b), and (y) of the amended consolidated complaint) consti- tuted illegal interrogation, Hanover House Industries, Inc., 233 NLRB 164 (1977); and find that Graydon's request of Marsella was a request for her to spy on her fellow employees--all in violation of Section 8(a)(1) of the Act. Carr's narration of his conversation with Clements was not contested by Respondent and Dansereau's denial of his conversation with Carr was vague and, at best, tenta- tive. Further, I also find that, on the morning of the same day, Graydon asked Marsella what she would do if Respondent closed down. Marsella said that she did not think that Respondent would close after "making all that money." Garydon replied, "That's what I heard." Later, LePere, who had been told by Marsella of Graydon's re- marks, chastized Graydon, telling him that it was against the law for him to be telling employees that the plant would close if the Union got in. Graydon said that he had the right to make such a statement, that this was the United States. Graydon did not deny this conversation with LePere, and I find that the threat of plant closing was a blatant attempt to halt the union organizing cam- paign at its inception, in violation of Section 8(a)(1) of the Act. (Par. 8(c) of the amended consolidated com- plaint.) Leafleting, soliciting of cards, hanging of posters, and electioneering continued on Wednesday, January 11, with so much success that on the same day the Union filed a petition for Certification of Representative with Region I of the Board and made a formal written demand upon Respondent for recognition, requesting that bargaining commence immediately. The Union's demand for recognition was received by Respondent on Thursday, January 12; on the day after, Respondent de- clined to recognize the Union "pending the outcome of the representation petition [the Union] filed with the NLRB." General Counsel contends that, by January 12, the Union had gained the support of a majority of Respond- ent's employees despite the continuing 8(a)(l) unfair labor practices he alleges were engaged in by Respond- ent on January 11 and 12. 1 agree, discussed infra, that the Union attained majority support by January 12 but do not agree with all of General Counsel's allegations in- volving the conduct of those 2 days. I find that, on January 11, Supervisor Duke ap- proached employee Judith Allsup at her worktable in the pick department, which he supervised, and said that he had been asked to ask the employees how they felt about the Union. Allsup said that she was indifferent. Duke then wrote on a paper on his clipboard, which had col- umns for "Yes," "No," and "?," a check mark under the question mark. Duke had the same conversation with employee Ernie Bourgeois and moved on to talk with other employees. Duke's interrogation and polling of Allsup and Bourgeois is patently in violation of Section 8(a)(1) of the Act. (Par. 8(d) of the amended consoli- dated complaint.) However, I do not find that Duke's polling of Allsup, together with the overall interrogation of employees and management's request of certain of its supervisors to as- certain union strength in their departments, merits a find- ing that Respondent "systematically polled employees." Polling is violative of the Act, whether "systematic" or sporadic; and I do not believe that there is anything to be gained by the additional allegation (par. 8(ff) of the amended consolidated complaint), which I find to be su- perfluous. I find that Graham requested Duke, Graydon, Siniscalchi, Howard Barrett, maintenance department foreman, and Gary McKiernan, foreman of the central stores department, to ascertain the strength of the Union in their respective departments, and not for any valid purpose, in accordance with Struksnes Construction Co., Inc., 148 NLRB 1368 (1964), as argued by Respondent. Graham's request for an immediate reply promoted Duke's actions and perhaps Graydon's. The other super- visors merely estimated the Union's strength, without di- rectly polling employees. My finding of illegal polling and interrogation, and the relief which I will recom- mend, will adequately remedy those violations; and a dis- cussion of what constitutes "systematic polling" would be academic. 1, therefore, dismiss paragraph 8(ff) of the amended consolidated complaint. I also dismiss para- graph 8(w) of the complaint, which alleges that, on Janu- ary 12, Joseph Mastriano, foreman of the casting depart- ment, created an impression of surveillance by stating that he knew that employees Carr and Clements were engaged in union activities. The record reveals that man- agement was well aware that both Carr and Clements, both of whom were laid off on the following day, were union adherents. Neither Carr nor Clements concealed his support. In these circumstances, I cannot assume from Mastriano's statement that he was creating any im- pression of having secretly obtained through surveillance knowledge which was then common to anyone who kept his eyes only partly open. Schrementi Bros., Inc., 179 NLRB 853 (1969).8 s The testimony of Ferreira also revealed that. during the same con- versation, Mastriano engaged in interrogation of Ferreira's union activi- ties and threatened that Respondent would not participate in collective bargaining with the Union. However, these activities were not alleged in Continued HEDISON MANUFACTURING COMPANY 803 B. The Layoff of January 13 On the afternoon of Friday, January 13, Respondent laid off 21 employees, effective as of the end of that day.9 These included 12 employees from the press de- partment, Carr, Clements, Robertson, Sherman, Silva, Lopes, Lariviere, Daniel Bedard, Rachel Leduc, Thomas Rattie, Luba Green, and Maurice Kujawski; 5 employees from the soldering department, Chicoine, Marsella, Sandra Rattie, Helen Dufresne, and Katherine Bourque; and I each from the maintenance department, Caya; cen- tral stores, Lawton; linking department, Helene Rondeau; and stringing department, Blanche Descy. The General Counsel argues that the layoff violated Section 8(a)(3) and (1) because its sole motivation was the employees' support of the Union. Among other con- siderations, the General Counsel points to the fact that only 2 of the 21 employees had neither actively attempt- ed to organize Respondent's employees (Carr, Clements, Lawton), nor attended the Woonsocket meeting of Janu- ary 9 (Carr, Caya, Chicoine, Clements, Marsella, Robert- son, Sherman, and Silva), nor executed union authoriza- tion cards (all of the foregoing, together with Bedard, Leduc, Thomas and Sandra Rattie, Green, Lopes, Ku- jawski, Rondeau, Descy, and Lariviere). Respondent, on the other hand, argues that the layoff was merely the result of business considerations, to wit, the normal sea- sonal decrease of manufacturing, and was not in any way motivated by the union activity which had commenced only 3 days before. For a multitude of reasons, I am per- suaded that, but for the union organizing campaign, the layoffs would never have occurred and that any business motivation is wholly lacking. 1. The circumstances of the layoff The testimony of the principal participants to the deci- sion to lay off employees--Dansereau, Graham and Peter Larson, Respondent's incentive systems supervisor and the complaint, nor were they fully litigated (Mastriano did not testify), and Respondent was not obliged to introduce evidence on matters not at issue. Indeed, the General Counsel was more than meticulous in ensuring that appropriate amendments were made both before and during the course of the hearing. I do not deem that his unopposed motion, made at the close of hearing, to conform the pleadings to the proof on "minor matters," amended the allegation of par. 8(w) to include other 8(a)(1) vio- lations. 9 Respondent, after having admitted in its answer and then stipulated at the hearing that soldering department employee James Stemin was laid off on January 13, moved on the last day of the hearing to amend its answer, denying that Stemin was laid off on that day or any other day. Because I had permitted numerous amendments of the complaint during the course of the hearing, including General Counsel's additions to the list of laid-off employees the same day that Respondent moved to amend its answer, I granted Respondent's request, noting that I would review the file to determine the weight to be given to Respondent's earlier ad- mission and stipulation. Respondent's no-work termination list and the payroll records for the week ending January 21 support Respondent's contention that Stefflin's last day of employment was January 18. 1 am convinced that Respondent's admission and stipulation were merely inad- vertent errors. The General Counsel has not contended that he was pre- judiced by Respondent's change of position; in fact, he was afforded the opportunity to, but did not, submit an affidavit from Stemin regarding the date and circumstances of the termination of his employment. At some point, trials must end. I reject the General Counsel's suggestion in his brief that I should refer this matter and the addition of other unnamed laid-off employees to compliance proceedings. I, therefore, dismiss the complaint as it requests relief for Stemin. Hedison's son-in-law-was contradictory, unsupported, and in some cases unbelievable and false. t' Graham testi- fied that approximately 2 weeks before January 13, he told Dansereau that he ought to check the work in proc- ess, which seemed to be declining. A week later, he asked Dansereau what he was doing about the work in process, which was declining. Dansereau allegedly re- plied that Graham should not worry, that Dansereau was taking care of it. Graham testified that he had essentially the same brief conversation the following week and that, during all such conversations, he neither recommended a layoff nor did he target any particular area for a layoff. In contrast to Graham's recollection of these few brief encounters, Dansereau detailed meetings with Graham lasting a half hour or more, starting with approximately 2-3 weeks before the date of the layoff, at which they looked at records of work in process and forecasts of production and Graham concluded that Respondent em- ployed too many employees at areas in the beginning of the production cycle. The decision to lay off personnel was made, according to Dansereau, by him in Graham's presence, with a tentative date of January 13. Graham denied that he was privy to the decision and testified that he learned of the layoff only on January 12. Danser- eau also testified, in contrast to Graham's denial, that he kept Graham advised of how many and which employ- ees Dansereau had selected and, in particular, how each employee was selected. Larson testified that Dansereau requested him to pre- pare a list of the names of "low performers" but had dif- ficulty recalling the precise nature or date of the request. This is, at best, curious in light of Dansereau's testimony that, about a week before the layoff, he went to each de- partment and tried to figure out how many employees to lay off, while still retaining an adequate work force. In any event, Larson remembered that Dansereau was in a hurry for the list, and Larson complied with the seeming rush by preparing a list of about 25-30 employees by the day after the request. Regarding the date that Dansereau made the request, Larson testified at first that it was 3 or 4 days prior to the date of the layoff; later, he testified that it was 2 or 3 days before; and, still later, he testified that he believed that he had prepared the list for presen- tation to Dansereau on January 12. According to that to I granted during the hearing the General Counsel's motion, based on Hedison's failure to comply with valid subpenas requiring him to appear and testify, to bar Hedison from testifying about the January 13 layoff and six other general areas of unfair labor practices alleged in the amended consolidated complaint-the discharges of the central stores de- partment employees and their supervisor, McKiernan, the June 2 layoff. the 8(a)(1) allegations in which Hedison was specifically named. the alle- gations of wage increases and benefits alleged in par. 80) and (p). and the allegations of (aXI) violations set forth in pars. 8(k), (), (o). (q). and (r) of the amended consolidated complaint. In addition. I prohibited Re- spondent from introducing any proof regarding the central stores depart ment discharges. Because of the novelty and difficulty of the issues pre- sented to me on this motion, I attach as "Appendix I a cop) of my oral decision, which accurately reflects my comments during the course of the hearing. The official transcript, at pp. 2283-92, is amended according- ly. Further, I cite the following pages of the official transcript which deals with this issue, should the matter be raised by Respondent in excep- tions to this Decision, as Respondent assures that it will do: 41-50, 52, 84. 146, 153-154. 268-270, 296-299, 422-430, 605-607, 718, 722, 730-731, 794, 855, 1067-68. 1367-68, 1673, 1705-07, 1979-81. 276. 2085. 2253-83, 2292-04, 2392 93, 2934-36, and 300h-09. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony, Dansereau's request was made on January 11, the day after the union campaign went public. Despite the contention of Dansereau that he had, and Larson that he would have, consulted with and informed the foremen in the various departments to be affected by the layoff, none of the foremen seems to have heard any definite word about the layoff until January 13. Graydon testified, contrary to Dansereau's assertion that he and Graydon jointly picked the names of the employees to be paid off, that he heard about the layoff only 2 days before, but the only time he knew of the identity of the persons to be laid off was on January 13. McKiernan and Barrett both testified that they were consulted by Dan- sereau on the afternoon of the layoff. Despite the fact that Dansereau testified that he conferred with the press department foreman, Robert Clements, Clements was ap- parently unaware of who was going to be laid off on January 13; and Respondent's witness Hamlon testified that, on that day, no one had any indication that there was to be a layoff. Even Personnel Manager Callahan was first informed of the layoff in the presence of Larson and Dansereau on the afternoon of January 13; he was allegedly given lists of the persons to be laid off, which lists were to be given to the supervisors in the affected departments. Graydon testified he never saw such a list and that he was informed orally by Callahan of the em- ployees to be laid off. I do not credit Dansereau, Graham, and Larson with regard to the circumstances regarding the decision to lay off employees and the timing thereof, in light of their contradictory and conflicting testimony, which I find to be unsupported by documentary evidence and patently fabricated. Rather, the totality of the evidence supports a conclusion that the decision to lay off employees was discussed and made only the day of the layoff or the day prior, but certainly after it became apparent that an orga- nizing campaign was underway. Neither Larson nor Graham mentioned the layoff to McKiernan during their conversations on January 12; and Graydon testified that, as of January 11, Dansereau had not made up his mind whether he was going to schedule a layoff. Respondent's timing of the final decision to lay off some of its employ- ees, arrived at only after Respondent became aware of the union organizing campaign, "strongly suggests swift action to stamp out union activity" and was motivated by Respondent's union animus. California Bake-N-Serve Ltd., 227 NLRB 548 (1976). 2. Respondent's union animus The record herein amply demonstrates Respondent's union animus and a detailed recitation of the evidence, I believe, is unnecessary. Suffice it to say, Hedison, Graham, and Dansereau openly expressed their hostility to the Union. Hedison, upon learning of the union cam- paign on January 10, pithily noted, "Fuck them"; and it was conceded that Respondent was opposed to unioniza- tion. The unfair labor practices committed by Respond- ent during the 3 days prior to the layoff, the later letters sent by Respondent to its employees, and its agent's statement on January 19 to its supervisors and certain employees that Respondent would "crush the Union," are sufficient to support my finding of Respondent's union animus. 3. The disproportionate number of union adherents laid off It is so highly improbable that Respondent could have selected for layoff 21 employees, 19 of whom had signed union authorization cards, among them 8 employees who had attended the Woonsocket meeting, and only 2 em- ployees who had not expressed any preference for the Union, unless the presence of the Union was a motivat- ing factor in the selection. When consideration is given to the fact that, by January 12, the Union had obtained authorization cards from barely more than 50 percent of all the employees of Respondent, the probabilities that the layoff was motivated by the union campaign become even greater. As the Board said in Camco, Incorporated, 140 NLRB 361, 365 (1962), enfd. with modifications not here material 340 F.2d 803 (5th Cir. 1965): [T]he Respondent employs 95 employees in its ma- chine and tooling departments; 16 of these employ- ees attended a union meeting; and, of these, II em- ployees, all of whom had attended the union meeting, were terminated during February. The Respondent contends in effect that it was by chance that all the terminated employees attended the February 10 meeting. While it may be theoretically possible that the Respondent should have fortuitously selected for termination only those employees active in the Union, commonsense and the laws of mathematical probability indicate that such fortuity was highly improbable. Applying this principle, the selection of the great pro- portion of union adherents was not mere coincidence but is persausive that the probability is at least very high that the layoffs were discriminatorily motivated. Certainly, there is record evidence that Respondent knew by Janu- ary 13 of the Union activities of Carr, Clements, Sher- man, Marsella, Lawton, and Robertson. 4. The evidence of discriminatory motivation Proof of discriminatory motivation is rarely overt; rather, in most proceedings ultimate conclusions must rely upon circumstantial evidence. Admittedly, the pre- ceding subparagraph 3 results, at best, in a suspicion and subparagraphs I and 2 are only circumstantial proof that the layoff of the employees was caused by their activities on behalf of the Union. Here, however, there is affirmative proof of Respond- ent's motivation. In the midafternoon of January 13, the maintenance department foreman, Barrett, was called to Dansereau's office at 3:30 p.m. and was told that employ- ees Caya and Cook were to be laid off that afternoon. Dansereau said that both had attended a meeting in Woonsocket a few days before;' that Caya had been handing out union paraphernalia throughout the shop; he L Btoth Callahan and 'Pollun had become aware of certain employees who attended the Woonlsocket meetling during the week I infer that they rtported the lriln s of theec inldisviduals to tIlltir superiors IIEDISON MANUFACTURING COMPANY X805 instructed Barrett to tell Caya he was being laid off be- cause of lack of work and Cook because of his tardiness and absenteeism. Barrett agreed that Caya was actually the least senior in his department and that the layoff would not hurt him because of his youth, that he could always get a week's pay, and that his mother and father could support him. But the layoff of Cook was unfair, said Barrett, because Cook was in his middle or late for- ties and lived alone in a rooming house. Besides, Barrett said that Dansereau's reason would not hold up, because Cook, who did not have a driver's license, rode to work with Debra Jones and Joe Pine, and they were frequent- ly late together. Dansereau, noting that neither Jones nor Pine was scheduled for a layoff, requested Callahan to bring in his absentee and late records. Callahan verified that all three employees were late together. Not knowing what to do, Dansereau called for Graham. Graham pondered about the situation, noting that, before Hedison left for vaca- tion, he had said that Caya and Cook had to go. But, said Graham, he would take full responsibility: only Caya would be laid off; Cook should be warned. 2 As a result, Caya was laid off, not because of lack of work, Respondent's principal defense, but because Caya attend- ed the union meeting at Woonsocket on January 9. It is not unreasonable to infer that the layoff of the other 20 employees for "lack of work" was as discriminatory as that of Caya. I also find that Cook was warned by Bar- rett about his attendance and lateness solely because of his attendance at the same union meeting, a violation of Section 8(a)(1) of the Act. (Par. 8(gg) of the amended consolidated complaint.) Dansereau's conversation with McKiernan on January 13 is equally damaging. Dansereau called McKiernan to his office in the afternoon and told him that, because of lack of work, Respondent had to cut back in every de- partment of the plant. When McKiernan advised Danser- eau that there was no lack of work in the central stores department, Dansereau replied that that did not matter; that he was under orders to lay off people from every department. The only inference that I can draw from Dansereau's statement is that lack of work meant nothing and served only a useful excuse to carry out orders that had been given to him. I infer that those orders were to rid Respondent of union sympathizers. Admittedly, Dan- sereau gave McKiernan his choice of employees to be laid off, but that choice was seemingly limited to Lawton, Hutloff, and Ferreira, all union activities, and not another employee whose position was secured by his experience, qualifications, and seniority. No matter whom McKiernan chose, Respondent's purpose would have been served. Further, I find a great significance that on January 19, only 6 days after the layoff, Respondent recalled Bour- que and Dufresne for temporary work in the stringing department. They were the only employees laid off who 12 Dansereau testified that both Caya and Crk were laid off because of lack of work. The evidence demonstrates. however, that Cook was not laid off. Caya's functions were assigned to another employee, outside the maintenance department. he foregoing repreenilts further support for my finding that there as no lack of work in the maintenance depart- ment. had not authorized the Union to represent them or other- wise participated in union activities. The only inference that I can draw from this otherwise unexplained recall is that Respondent learned that neither employee was a union adherent, and the reason for the layoff-the union activities of the employees-was not applicable to them. I make that inference. 5. The hiring of new personnel after January 13 Logic compels the conclusion that, if, on January 13, there was a lack of work at Respondent's factory, caus- ing a legitimate layoff of some of Respondent's employ- ees, Respondent's records would reflect that it ceased employing new personnel. Dansereau testified: "They wouldn't be hiring and laying off at the same time.... That would be adverse to what I would be doing." However, Respondent's records demonstrate a pattern of hiring both immediately before the layoff and after 21 of Respondent's employees had lost their jobs. Only I day prior to the layoff, when a firm determina- tion had allegedly been made by Dansereau to lay off employees in the press department, and the same day that Graham testified he was advised of the layoff, Glen Bruhn was hired in the press department. Immediately after the layoff, employee Juanita Parker was transferred to the press department. In the soldering department, be- tween January I and April 24, no less than 23 new em- ployees were hired, although some employees did not remain employed for more than a day or two. One was hired on January 4, three on January 5, and two on Jan- uary 9, at the very time that Dansereau testified he was committed to a layoff and Graham testified that he was warning Dansereau that the payroll was too heavy. Other new hires for the soldering department occurred on January 26 (1), January 30 (2), January 31 (5), Febru- ary 1 (5), February 2 (2), February 6 (1), and February 14 (1). The history of new hires in the linking and stringing departments was essentially the same: in linking, there were new hires on January 5 (1), January 10 (1), January 12 (1), April 17 (1), April 18 (1), April 26 (1); in string- ing, on January 3, (1), January 4 (2), January 5 (2), Janu- ary 11 (1), January 17 (1), January 30 (1), January 31 (2), February 1 (2), February 13 (1), February 14 (2), Febru- ary 15 (1), February 16 (1), and February 20 (3), as well as numerous new hires in late April and early May.'" Further, Respondent often hired temporary help from various employment agencies when it could not com- plete its work with the complement of its employees. Al- though most of the work was of the most unskilled vari- ety, temporary employees were admittedly used in the stringing and linking departments. Two temporaries also worked in the soldering department, but they were sent, testified Graydon, "by mistake." Payments made for the temporary help were minimal from October to Decem- ' In making credibilily determinations herein, I note that Graham signed a letter to the Regional Office setting forth Respondent's position regarding the January 13 layoff Included in the letter was a list of em- ployes neswly hired. which hears no resemblance to the true facts as re- sealed at he hearing Graham's letter also mplies that Respondent was aware hefire he layoff of the exact number of employees in the press deparlnlent that needed to he laid off I fill that assertion toi he false 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 1977, amounting to a total of $869.14; the payments swelled, however, to the sums of $5,171.66 and $8,450.18 for the months of January and February 1978, respec- tively. Based upon the stipulation that each hour was charged at the rate of $3.50, the January and February totals amount to 1,478 and 2,414 hours of work, at the same time that the layoffs were in effect. Further, Re- spondent did not disband its night shift of part-time stu- dent employees until about March 4, an indication that there was no lack of work on January 13; some witnesses also testified that numerous jobs had been contracted out when they were capable of being performed on Re- spondent's premises; and overtime continued to be worked in various departments. Moreover, the documentary evidence amply demon- strates that, at the same time that the layoffs were alleg- edly contemplated and after January 13, when the layoffs took place, Respondent continuously advertised for new employees for the same positions that had been vacated by the 21 employees. Respondent argues that the adver- tising was merely to stockpile names of possible prospec- tive employees, once Respondent's business picked up. Although there may be some truth in this assertion, as shown by the large number of new hires in April, the fact remains that, during January and February, there were new and wholly unexplained hires, which is con- sistent with the General Counsel's theory that the adver- tisements were intended to be effective for immediate hires, and not for the stockpiling of names. 6. The failure to recall the laid-off employees Perhaps it is out of context to consider Respondent's failure to recall the 21 employees who were laid off on January 13 to ascertain whether that failure also consti- tutes an unfair labor practice, prior to consideration of Respondent's alleged business justification for the layoff itself. However, the treatment of the laid-off employees sheds some light on Respondent's motive. First, I have already adverted to the recall of Bourque and Dufresne on January 19 to report for "temporary work available" in the stringing department. With a few exceptions, however, no other employees were recalled to work until April. One was Lariviere, who was re- called to the press department during the week of Janu- ary 29. A few days earlier, Carmen Bittner, the plant nurse, asked Claire Sherman, the floorgirl in the press department, whether Lariviere was a member of the Union. Sherman said that Lariviere was too timid to get involved (despite the fact that Lariviere had in fact signed a union authorization card). Immediately thereaf- ter, Lariviere was recalled to the job that Susan Sherman had previously performed, that Sherman had been train- ing Lariviere to do, and for which Lariviere had to con- tinue to be trained. Sherman, who had been active in her support of the Union, was not recalled to her old job. I infer that Bittner was doing the bidding of Respondent in obtaining information about Lariviere's union member- ship and that she was recalled because of the information Bittner obtained. For this very limited purpose, I hold Bittner to be an agent of Respondent.1 4 Other exceptions were Carr and Ivory Clements, al- though O'Brien admitted that they were not actually re- called to employment. Both repeatedly requested alter- nate employment, indicating that they would take any other job, even at a lesser rate of pay. Despite the fact that there was other employment available, as shown by Respondent's records of new hires, and that there was a continuous need for employees in the epoxy department, their requests were repeatedly rebuffed. In or about mid- February, Production Manager Marinelli called a meet- ing of employees to request that they work overtime be- cause of the backlog of finished goods. LePere, who was in attendance, suggested that the laid-off employees be recalled. Marinelli stated that, if they wanted to return, they might. As a result, Carr and Clements were rehired in the carding department and commenced employment on or about February 16, Carr at a rate of $2.75 per hour, 75 cents less than he had been making.6 On March 6, the Monday after the election, both Carr and Clements were laid off again. Robertson, like Carr and Clements, attempted to obtain employment throughout January and told Callahan that she would take any job in any department. Unlike Bourque and Dufresne, Robert- son was not recalled to work at that time. Based on Respondent's records, many of the employ- ees laid off on January 13 were recalled to work in April, but some employees were not recalled to the same jobs from which they had been laid off. On or about April 26, Susan Sherman was recalled to work in the stringing department, a job she had been transferred from in November or December 1977, because of a per- sonality conflict with her then supervisor. Callahan knew of that conflict and that Sherman would not have ac- cepted that position. As a result, the offer of reemploy- ment was not made in good faith, and there was no showing that Sherman's prior position was not available. Her brother, Anthony Lopes, was offered a position on May I at a pay rate lower than he had previously re- ceived. Both Carr and Ivory Clements were recalled to the position of foot press operator, at lower wage rates. Strangely, Carr was paid at the rate that Lopes had for- 4 am aware that Bittner was authorized to recommend transfer of employees to other departments, but her recommendations were based solely on reasons of health and not job performance. Based on the Gener- al Counsel's theory, all nurses who have the power to recommend a change of work are supervisors. I have been unable to find support for this proposition. Further, there was testimony that Bittner hired an em- ployee; but that hiring was only at most a ministerial job of accepting an application for a vacancy and required, in the circumstances, no exercise of independent judgment. On this basis, I find that indicia of her supervi- sory status are, at best, most isolated. t6 For the purpose of compliance with this Decision, or a backpay proceeding, if necessary, it is appropriate to note that Carr, upon recall, was initially paid 3.50 an hour, the same as his prior rate. I find that payment of his old rate in the press department was merely an attempt to embarrass him, because of his advocacy of the Union and because he had represented to many employees that he was, upon recall, being paid at a lower rate. When Carr complained about his higher rate of pay, Re- spondent reduced it to 2.75 per hour and made appropriate adjustments on Carr's next paycheck. I hold that, in these circumstances, Carr did not waive the sum of 75 cents per hour, to which he would be entitled in the event my Decision is adopted by the Board. HEDISON MANUFACTURING COMPANY 807 merly been paid, but Respondent still took the position that Lopes' wage rate was too high for the department. These recalls were obviously not to the jobs from which those employees were laid off; and, although some of the offers of recall were accepted, the offers were not made in good faith. Other employees-Caya, Chicoine, Mar- sella, Sandra Rattie, Kujawski, Descy, and Rondeau- were not recalled to work at any time. Respondent argues that the reason for its failure to recall employees was that its records were either "non- existent" or "chaotic." I find that, if there was a lack of care, it was intentional. Indeed, all of the higher level of- ficers of Respondent concede that the January 13 layoff was temporary and that the employees were subject to recall. If that be accurate, there was at least a moral, if not legal, obligation to maintain records whereby these laid-off employees would have the opportunity to regain their livelihoods. Yet, seemingly, there was no way to tell who was laid off on January 13, even though O'Brien claimed that, from February 6 forward, he and Callahan used their best efforts to reconstruct a list of the affected employees-a situation which resulted in amendments during the course of the hearing, up to the very last day, adding and deleting names to the January 13 list. No matter that employees were, in fact, recalled in the interim. I conclude that Respondent had initially no intention of recalling the employees. Indeed, Danser- eau stated to Barrett that Respondent "wouldn't be hiring [Caya] back. We'd just be laying him off." The filing of the unfair labor practice protesting the layoffs apparently caused Respondent to rethink its position and act accordingly. ' 7. The Respondent's justification for the layoff Respondent's essential defense is that layoffs in the jewelry industry are traditional, occurring after produc- tion of its goods for spring and fall begins to decrease. Although most of the testimony indicated that, according to the same traditional pattern, layoffs may normally be expected somewhat later than January 13, a fact which I find is of no little significance, I might be more receptive to Respondent's claim had it presented clear and con- vincing proof that there had been any decision motivated solely by business considerations. To the contrary, I have found that Respondent's case was muddled, confused, and contradictory as to the making of a decision to schedule a layoff and I have discredited it. It logically follows that, if, as I have found, the layoff was the direct result of the Union's campaign, the attempt to inject a business justification is merely an afterthought and was not a basis for the action taken on January 13. In any event, Respondent never proved that there was any business consideration for the layoff. Not the least of the difficulties with Respondent's defense is the almost total absence of records to support its position. Neither the work-in-process tickets, which would have shown the actual work being performed in the plant, nor the work forecasts, which would have shown the work pro- I" Respondent's records reveal that Green was recalled on April 26; Thomas Rattie, on April 29; Silva, on April 26; and Bedard, on May 3. It was stipulated that Robertson was recalled on April 4 jected for manufacture, were produced.t 7 All that was introduced was a chart maintained by Graham contain- ing, inter alia, weekly summaries of work in process, inside and outside payroll, and shipments. This chart shows that work in process was decreasing, although the accuracy of the decrease is suspect because another doc- ument submitted to the Region by Graham during the course of investigation contains figures that are less than those reflected on Graham's chart. As a result, it is im- possible to determine which figures are accurate; and, even if I were to assume that one set of figures ought to be credited, that still does not prove that all the layoffs were justified. Indeed, all that appears in the record is that, when work in process declines, the first department affected by lack of work would be the press department which is at the very beginning of the manufacturing process. How it can be gleaned from the figures that other departments would be similarly affected is left wholly unexplained, as is the relationship of the amount of the decline to the number of persons to be laid off. Certainly, the numbers have no bearing upon the finished side of the manufac- turing process, such as the stringing and linking depart- ments, because the decline would impact, according to Respondent, only the beginning of the process, not the tail end. Further, the figures do not comfort Respond- ent's cause in justifying the layoffs in the central stores and maintenance departments, where there was no histo- ry of layoffs at all. Graham also attempted to support the layoff by rely- ing on an alleged "danger signal" of a ratio of total labor costs to total shipping. When the figure exceeds 35 per- cent, a layoff is inevitable, if not immediate. Graham's chart shows that the figure was 43 percent during the week prior to the layoff; however, it also shows that the figure had never dropped below the "danger signal" prior to that week and since October 17, 1977. In fact, at the time Graham allegedly first warned Dansereau in late December 1977, the percentage had fallen for 6 weeks in a row. Thus, the "danger signal" theory not only lends no support for the timing of the January 13 layoff but also gives further support for questioning Gra- ham's credibility. Nor do Graham's charts support his contention that the layoff was warranted because payroll was too high. It is true that the total factory payroll decreased in the week after the layoff to S56,056 from $69,277, the prior week. However, the payroll returned to $68,470 and $69,601 the next 2 weeks; and did not show any drastic reduction (except for the blizzard of February 6) until the payroll week ending March 6--all of which clearly belies the underlying justification for the layoff as ex- pressed by Graham. If the total amount of payroll was not the underlying reason for the layoff, then the only justification which remains is that certain departments of Respondent's plant l7 Respondent's witnesses contended that these records were not actu- ally retained for any lengthy period of time. Although that might have reflected Respondent's practices, I find it unusual that, in light of the Union's prompt filing (January 16) of an unfair labor practice charge complaining that the layoff violated the Act, Respondent did not retain these records if they supported its position. DECISIONS OF NATIONAL. LABOR RELATIONS BOARD did not have sufficient work to keep all the employees busy. However, there is little to support Respondent's claim, with the possible exception of the press depart- ment. Foreman Don Fontaine testified that in mid-Janu- ary there was a substantial amount of work in the central routing department received from the press department. Supervisor McKiernan credibly testified that the central stores department was not suffering from any lack of work; the employees in that department corroborated that testimony. Indeed, just prior to the commencement of the union campaign, McKiernan had been authorized to hire two new employees for his department. Contrary to Dansereau's contentions, the maintenance department had ample work to do. The hours worked by that de- partment did not decrease after Caya (whom I have found was laid off because of his attendance at the Woonsocket meeting) was laid off; rather, the hours in- creased. Similarly, there was no reduction of hours worked in the soldering, stringing, and linking depart- ments, except for the week after the layoff, until the week ending March It1. Fontaine testified that, in the middle of January, there was a backlog of work to go to the soldering department. I thus find that, as of January 13, there was little justification for the layoff in the press department and none at all for the layoff in the central stores, maintenance, stringing, linking, and soldering de- partments. Further, the selection of the employees for layoff com- pels the conclusion that Respondent's defense cannot, in substantial part, be believed. Both Dansereau and Larson had hazy recollections as to how they selected the em- ployees. According to them, the selection process was based on some unclarified mixture of seniority, perform- ance, and need; and even Respondent recognized that there were some "inconsistencies and anomalies" in the procedures it followed. The lists of the persons to be laid off, allegedly prepared by Larson, have been "lost." Larson identified one employee in the soldering depart- ment, Maria Ramos, whom he thought he had recom- mended for layoff; she was not laid off, Susan Sherman was not on the list; she was laid off. Larson did not list his rating of the employees, but believed that, since Dan- sereau selected every person on the list, the ratings made no difference. There is no doubt that certain of the employees laid off were "low performers" according to a document which Larson said that he looked at when he made up his list: but even Respondent's exhibit was flawed in the sense that the document introduced was only one of the documents Larson alleges that he examined. Even if there were no discrepancies in Respondent's narration of the events leading up to the layoff-and the discrepan- cies were abundant-the disappearance of the original lists and the withholding of the other documents alleged- ly relied upon by Larson make Respondent's story most suspect. For example, Larson admitted that Sherman was a good worker and that her performances for certain weeks was the highest in her departments; that Robert- son also had weeks of high performance and that she was never counseled by Larson, who customarily talked with employees who were "below standard." Since Larson admitted that Sherman was not on his list, that he could not recall who was on his list, and that no ex- planation was given by Respondent for the layoff of either Sherman and Robertson, I find Respondent's over- all explanation of its selection of employees most difficult to comprehend. There was ample evidence that Carr was a highly re- spected employee of long standing, capable of perform- ing almost every task in the press department, and, prior to the union campaign, consistently elevated in responsi- bilities and raised in pay. On two occasions in 1977, Carr was offered the position of assistant foreman. Ivory Cle- ments, too, was an entirely satisfactory performer. Their layoffs left their supervisor, Bob Clements, without em- ployees capable of setting up the forges and the air cam press.i8 Because Carr was the most senior employee in the department, it is obvious that seniority was not a factor in his layoff. Indeed, the day before the election, O'Brien stated to Fitzpatrick that he understood that Carr was one of the original organizers of the Union. In addition, Respondent, in justifying the later layoff of June 2, discussed infra, noted the need to retain all toolsetters.' 9 Apparently, that need was not felt on Janu- ary 13. Finally, Carr testified that the custom in prior layoffs was that, if he were not needed to perform tool- setting work, he would return to operate the presses. That custom was also disregarded. Respondent's princi- pal witnesses testified that they made great efforts to avoid laying off experienced employees in order to stabi- lize the complement of their employees. Many of the General Counsel's witnesses testified that Respondent made a consistent effort to transfer employees to depart- ments where there was work for them to do, rather than lay them off. That practice was also disregarded on Jan- uary 13. Perhaps not recognizing that Bourque was recalled only 6 days after the layoff, and in furtherance of its at- tempt to justify its selection of employees, Respondent concedes in its brief that she "was consistently below the average of the [soldering] department." If she were truly laid off because she was below average, there would have been no need to recall her. However, the fact re- mains that she was recalled to another department; and almost all of the others, including most satisfactory workers, were not. In these circumstances, there was no justification for the layoff of any of the employees, par- ticularly the pressroom employees, because there was adequate substitute work for them to perform. I find for all of the foregoing reasons that all of the employees named in paragraph 9 of the complaint were laid off in violation of Section 8(a)(3) and (I). Even though Bourque and Dufresne were not shown to be union adherents and they were offered reinstatement to Is After the layoff. an ad'erislement u.as placed in the newspaper frr that appeared to he Carr\s ih Whenl Carr answered the advertisement, he vails told that it conitained an errrl that it should have provided for 3 years' experience Later, the ad'ertisement was changed; the ohb, howev- er was Inexer filled. Ily so holding. I have cnlsidered Santo Clerel o's testlimony that Carr had i,,t served enlough time to become a fulls qualified Itoolstter aId I ha,,e rejected it, in part, hecaule (?hetrel l was present i the press- rooll for nlinimal anioults and had . ;ay tIo knll,"v of Carr's progress. Clherclil cillceded that the lorcmna i Ihe pres, departmnlent wuld have inore klliowslledge of Carr't capahilities I lhe firernma did not testif> 8(8 --- HEDISON MANUFACTURING COMPANY temporary assignments in the stringing departments ef- fective on January 13, nonetheless, the motivating factor for the January 13 layoff was the assumption that they, as well as their union colleagues, favored the Union. They were merely swallowed up in Respondent's desper- ate and precipitous attempt to crush the Union and were discriminated just as much as if they, too, attended the Woonsocket meeting, signed union authorization cards, or distributed union leaflets, or solicited union cards. Howard Johnson Company, 209 NLRB 1122 (1974); Com- puted Time Corporation, 228 NLRB 1243 (1977). C. The Aftermath of the January 13 Layoff' New Rules and New 8(a)(l) Violations Shortly after the layoff was announced to the affected employees on January 13, a group of employees led by Hutloff (Lawton, Clements, Carr, Fitzpatrick, LePere, and Ferreira) complained bitterly to Dansereau and other of Respondent's supervisors that the layoffs were dis- criminatory against "our in-shop Union organizers" and that they would not get away with that kind of illegal activity. Lawton, Clements, and Carr, of course, were al- ready laid off. Discharge awaited Hutloff and Ferreira at the end of January, and a layoff awaited Fitzpatrick in March. In the meantime, Respondent continued on its course of flagrantly disregarding the provisions of the Act. There is no doubt that widespread efforts were made to spread the union gospel through solicitation of em- ployees in the parking lot and in the cafeteria; and there is no allegation in the complaint that Respondent at- tempted directly to hinder the solicitation. But Graham, Dansereau, and Callahan were apparently upset with the Union's leaflets being posted around Respondent's prem- ises; although, prior to January 10, Respondent's four bulletin boards 20 were used by employees, without any permission, for notices pertaining to picnics, sports activ- ities, requests for rides and carpools, birthday congratula- tions, and death announcements. After January 10, the bulletin boards became an issue. During the morning of January 11, Graham and Calla- han approached Hutloff, telling him that it was illegal to be posting leaflets on the bulletin boards and in the bath- rooms; that it was permissible to distribute leaflets on nonworking time, at the noon hour, but not permissible to post leaflets on the bulletin board; and that it was il- legal for nonemployees to distribute leaflets in the park- ing lot in the morning. Graham asked Hutloff whether he would pass this word to the organizing committee. Hutloff said that he would do his best, but since he was not on the organizing committee, he could not guarantee anything. Graham grinned, saying that he understood and that Hutloff should do the best he could. During the morning break on January 16, Ferreira, seen by Foreman Robert Clements, posted union leaflets on Respondent's bulletin boards. After lunch, Ferreira, seen by Alan Lacroix, Respondent's chief expediter, put up on the four bulletin boards additional leaflets concern- ing the January 13 layoff. After returning to his work 20 A new bulletin board, apparently solely fr employee personal no- tices, but not union notices. was put up after the election. area, Ferreira was approached by Lacroix and Danser- eau, who was holding some of the Union's literature being passed out that morning. Waving the papers in Ferreira's face, Dansereau asked whether these were the leaflets he had put up on the bulletin boards. At first, Ferreira said that he did not know whether it was those particular leaflets he had put up, but he admitted that he had put leaflets on the bulletin board. After being asked the same question twice more by Dansereau, Ferreira fi- nally said yes. Dansereau then announced that it was against company policy to put up literature on the bulle- tin boards without Respondent's permission. Ferreira said that, for all the time he had worked there, he never had seen a written policy to that effect, and that he had put up a lot of notices, as had others. Dansereau answered that, every time that happened, the employees had broken company rules; and that, if Ferreira did it again, he would be fired. Holding his ground, Ferreira said that, until there was a written notice to the contrary, he was going to continue to post notices on the bulletin boards because Respondent's rule was discriminatory. Shortly before or after this conversation, Graham, ac- companied by Dansereau, told Hutloff that he thought he had asked Hutloff about the posting of leaflets in the bathrooms and on the bulletin boards. Hutloff said that he had previously advised Graham that he had no con- trol over the matter. Dansereau asked whether he could not control these people, to which Hutloff said no. Then Dansereau asked Hutloff if he knew who was on the or- ganizing committee.2' Hutloff said, "No comment," di- rectly to Graham, that, if he wanted the people to know, the easiest way would be to put up an announcement. Graham said that Respondent already had a notice posted saying that employees could not deface company property and that he guessed Hutloff was saying that he could not help them. Hutloff agreed. The notice, however, was different from what Graham said it was. Posted for the first time on January 16, it read: "NOTICE TO EMPLOYEES-No notices can be put on bulletin board without approval of management. THANK YOU." Obviously, the change in Respondent's practice, there being no written rule in the past barring employees' posting of notices, was intended solely and 21 The General Counsel contends, and I agree, that Dansereau's ques- tion about the composition of the union organizing committee constituted interrogation in violation of Sec. 8(aHI) of the Act (par. 8(i) of the amended consolidated complaint). I do not agree that Graham's conver- sation with Hutloff on January II constituted illegal surveillance The General Counsel's theory is that the request that Hutloff carry Graham's message to the union organizing committee conveyed Graham's knowl- edge that Hutloff was on the committee. I am unable to infer from Gra- ham's statement or his smile that he as imparting any knowledge to Hutloff that Respondent had learned of Hutloff's involvement. Despite Graham's denial, Respondent was obviously aware from the Union's leaf- lets, some of which were directed to Respondent's supervisors, that there was a union organizing committee. It was also aware that Hutloff was engaged in leafleting. If rules were being disobeyed by the Union, Hut- loff as well as other lealletters would have been the logical candidates for Graham to talk to. Graham's smile at the end of the conversation is am- biguous It could mean that Graham knew that Hutloff was on the com- mittee It also could have meant that Graham knew that Hutloff would probably do anything to stop the posting of notices on the bulletin boards. In these circumstances, the General Counsel has failed to prose its allegation of an impression of surveillance, and par (g) of the amend- ed consolidated complaint is hereby dismissed 809 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusively to thwart the rights of employees to self-or- ganization, protected by Section 7 of the Act. Later attempts to obtain permission to post notices were unavailing. On January 26, Ferreira asked Ray Hebert, Respondent's general factory foreman, for per- mission to put up literature on the bulletin board. Hebert said that he would have to check "higher up" and would get back to Ferreira. Approximately an hour later, Hebert reported to Ferreira that he had talked with Graham, who refused permission. During the week before the election, LePere and Fitz- patrick requested Callahan's permission to post a notice on the bulletin boards publicizing a party for union sup- porters. Callahan said that he had no power to grant the request and would have to contact Graham. He later re- ported that he was unable to reach Graham. He returned with O'Brien who refused to permit the leaflet to be posted. When LePere asked why, O'Brien said that, for union-related or union material, they would have to ask the National Labor Relations Board. On or about June 8 or 9, Joe Pine and others distribut- ed leaflets for a workers' outing to be held the following Sunday. Pine had also put up posters on the bulletin boards (including the new employees' board) but found that they were taken off. After he had put up another poster, Pollen asked Pine whether he had put up a leaflet on the bulletin board. Pine said yes. Pollen said that he could not post union literature on the board. Pine said that the leaflet merely advertised a workers' outing and said nothing about the Union. Pollen replied that Pine would have to talk to O'Brien to see if the notice could be left on the bulletin board. As a result Pine and Fitzpa- trick went to O'Brien and asked him why they could not post the notice. O'Brien said that he had to call Hedison. Later O'Brien reported that Hedison would not let it be posted-that otherwise he would go "ga ga."22 I conclude that there was never a restriction on the use of the bulletin boards until the commencement of the union campaign and that the prohibition of posting solely union-related or union leaflets and notices constituted a disparate, unwarranted, and unilateral imposition upon the freedom of self-organization in violation of Section 8(a)(l) of the Act (par. 8(k) of the amended consolidated complaint). Challenge Cook Brothers of Ohio, Inc., 153 NLRB 92 (1965), enfd. 374 F.2d 147 (1967). Further, I find that Dansereau's questioning of Ferreira on January 13 constituted illegal interrogation (par. 8(h) of the amended consolidated complaint). Another new rule put into effect by Respondent in- volved the right of employees to visit other employees during lunch or break periods. LePere had often, per- haps every other day, visited her friend Fitzpatrick in the linking department. Floorlady Di Carlo had always given LePere permission to speak to Fitzpatrick, often noting that it was unnecessary to ask for her consent and that she could talk to Fitzpatrick "whenever you want." On January 16, LePere had just returned from the link- ing department where she had asked Fitzpatrick about 22 In contrast, a newspaper advertisement paid for by employees thanking Respondent for paying a full week's wages for the week of Feb- ruary 6, when there was a blizzard (see infra), was permitted to be posted in late February. borrowing her car. Chief Expeditor Allen Lacroix warned her not to go into other work areas during lunch hour, under obvious pain of discipline. The record fails to demonstrate that prior to this inci- dent there was any written or oral rule in existence pro- hibiting employees from visiting other departments during lunch or break periods; and I note that, even if there were a rule, both O'Brien and Dansereau stated that the rule had not been enforced. Employee Alice Jef- frey testified credibly that she had visited friends in other departments during breaktime. There was also uncontro- verted testimony, which I credit, that employees JoAnne Anderson, Vicki Blair, and Jemma Ayers visited the link- ing department regularly, during break periods, and Ayers, during work. Thus, the posting on February 14 of a written rule prohibiting employees from going "into another depart- ment during coffee or lunch breaks" was a unilateral de- parture from Respondent's past practices and unsupport- ed by a showing of business need; and the threat to LePere, a known union advocate, who had just visited Fitzpatrick, another known union advocate, was intend- ed to discourage her union activities in violation of Sec- tion 8(a)(1) of the Act (pars. 8(e) and (o) of the amended consolidated complaint). In support of the latter finding, I specifically note that, even after the February 14 notice was posted, Di Carlo, whom Respondent claims is an employee, visited Marie Silva in the wrapping depart- ment. Both Di Carlo and Silva signed antiunion leaflets and letters, as did Blair and Ayers. There is no question that, when Mary Ackaway was rehired in the sample room2 3 in March, she was not per- mitted to leave that room, even to go to the plant cafete- ria to purchase some flavored milk which was not availa- ble in the office cafeteria. In the course of the perform- ance of her duties during her earlier employment in the sample room, she was required to go to the pick room and the carding, receiving, linking, and gluing depart- ments; upon her return to employment, she was not per- mitted to leave the sample room. The only pay phone was on the factory side; Ackaway was permitted only to use Respondent's business phone in the sample room. When, in order to perform her duties, Ackaway had to obtain jewelry in the pick room or from the factory or to obtain plastic bags, her supervisor, Jean Chin, would ask other of the sample room's employees (whose duties were the same) to get the necessary items. Before Ackaway was laid off from the sample room in August 1978, Greg Wallace, named by Ackaway and Jean Chin as the supervisor in the cost room, asked her whether she wished to transfer into the pick room. Ackaway re- plied that Respondent would not let her go to the pick room. He registered his disgust, walked out, and re- turned later, with hands thrown into the air, saying that he did not believe the people in this place and that Ackaway should forget the job. General Counsel complains (par. 8(bb) of the amended consolidated complaint) that Ackaway's virtual isolation was for the purpose of discouraging her union activities. 23 The sample room is on the office side of Respondent's plant. The employees there are not part of the appropriate unit agreed to by the Union and Respondent. HEDISON MANUFACTURING COMPANY 811 I agree. Ackaway was a union supporter prior to the election, while she was still employed in the factory, at- tended the Woonsocket meeting, talked with employees in the factory cafeteria when the union campaign openly commenced, wore a union button and carried a union sign, and was seen by Hike and H. David Hedison, and unabashedly expressed to Frank Williams, vice president of marketing, that she still favored the Union at the time she was rehired in the sample room. If there were re- strictions on office employees visiting the production areas, they were certainly not enforced upon Ackaway at the time of her prior employment in the sample room. No credible explanation for the specific limitation of her movements upon her rehire was given by Respondent. I conclude that Respondent's actions were taken solely to prevent a known union adherent from proselytizing in the production area of the plant, where the union cam- paign was still active. That violates Section 8(a)(l) of the Act. During the week of January 16, when LePere reported to work in the central routing department, the chairs were missing. This might not have seemed overly unusu- al and the cause for litigation, except that previously LePere sat on a chair while she was doing her work. Another employee, Peggy Shaw, told LePere that the employees were not allowed to sit on chairs anymore. LePere asked why, and Shaw replied that the employees did not work fast enough sitting down. Nonetheless, LePere sat down; and Karen Lovell, her supervisor, came over and said that she could not sit anymore. LePere said that she supposed the reason for the new condition was because the employees did not work fast if sitting; Lovell said yes. LePere said that, if Respondent thought she was working slow sitting down, it should see how slow she would be if she was not there, because she had cramps, she could not stand all day, and she would go home. Lovell relented and permitted LePere to remain seated. The following day, LePere again sat down; Lovell came over to her and complained that she would get in trouble if she allowed LePere to remain seated. LePere then told Lovell that she had been told by Shaw that Ron Renzi, then plant manager, said that it was all right if the employees sat down while doing the paperwork part of the job. Lovell pleaded ignorance and said that she would check with Renzi; she returned saying that, although Renzi had said it, he did not mean it and that the employees had to stand up all the time. The above testimony was uncontroverted, as was Le- Pere's recollection that a day or two before Christmas Day, 1977, Lovell complained that her feet hurt and that she was glad that Respondent allowed chairs in the de- partment because she was not sure that she could per- form her job if she had to stand all day. Respondent's defense is grounded upon Dansereau's denial that the chairs were removed from the department and that, if the chairs were there at some point of time, they should not have been. Further, he alleged that at no time were employees allowed to sit while doing their work. I discredit his testimony as vague, conclusory, and unsupported by fact. I find that the removal of the chairs and the imposition of the new condition that employees had to stand while working was a deliberate attempt to make work more onerous and to discourage LePere's union activities in violation of Section 8(a)(l) of the Act (Par. I(v) of the amended consolidated complaint). On January 19 Respondent held a dinner party at the Chalet Restaurant in Providence. Invited to the affair were all the principal supervisors and foremen of Re- spondent and, in addition, floorladies Cote, Di Carlo, and Florence Silva and employees Joe DeMarse, Michael Lapp, and Isabel Calitri. Graham introduced the princi- pal speaker, Martin Jacobsen, as Respondent's labor rela- tions consultant; I find him to be Respondent's agent. There is testimony that Graham said that Respondent would crush the Union. Graham denied making that statement, saying that it was Jacobsen, who, in addition, spelled out for the audience some "dont's"-namely; "don't promise benefits," "don't make threats," and "don't speak about the Union unless an employee speaks first." During the discussion which followed, Graydon stated that he was afraid that he had already broken the law by threatening that Respondent would close. Jacobsen told him not to worry about it-all a violation of the Act meant was a little piece of paper. Jacobsen then turned his attention to the causes of the union organizing drive, asking the audience what the problems were in their de- partments, so that the problems could be addressed in campaign literature and captive audience speeches. McKiernan was singled out for his comments about the central stores department. Others talked about problems of pay raises and incentive rates. Finally, near the end of the meeting, Jacobsen asked that the persons in attend- ance furnish the names of the employees whom they thought would like a union at Respondent. Jacobsen added that Hedison would never sign a contract (accord- ing to Barnett) or bargain (according to McKiernan) with the Union anyway. I find that the interrogation, by soliciting grievances from a group which includes employees (one of whom, Alice Cote, stated that her girls were complaining about piece rates), the request of them for names of union ad- herents, and the threat not to sign a contract or bargain are patent violations of Section 8(a)(1). In so finding, I am cognizant of Respondent's contention in its brief that the threat not sign a contract was merely a prediction that Hike Hedison would not place his signature on a union contract. Because Hike Hedison and Respondent seem to most employees as synonomous, I find that con- tention to lack merit. (Par. 8(m), (hh), and (ii) of the amended consolidated complaint.) D. The Discharges of the Central Stores Employees and Supervisor; the Constructive Discharge of June Lockhart; and Further Alleged 8(a)(1) Violations 1. The central stores department The central stores department was essentially the dis- tributor of unfinished jewelry during the initial operation of Respondent's manufacturing process. It had control of raw brass and gold, inventoried the same, and, pursuant to work tickets filed with the department, forwarded various pieces of raw material and other parts to the 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD press department, where it was formed in a press into a piece of jewelry. When the press department finished with the goods, they would be returned to central stores for counting and further inventory. Other pieces of raw metal would be forwarded by central stores to the cast- ing department, where they would be melted and poured into a mold, resulting in an unfinished piece of jewelry, then to be returned to central stores for inventory and counting. Similar merchandise would be received by cen- tral stores from outside vendors and checked into inven- tory. Eventually, when all of the pieces necessary for the preparation of a finished piece of merchandise were re- ceived, the various pieces required to fill out production tickets were "laid out" and brought to the central rout- ing department for distribution to the departments per- forming the later stages of Respondent's manufacturing process; to wit, the linking, tubbing, polishing, stone picking, stringing, plating, and epoxy departments. In early January, the central stores department was su- pervised by McKiernan and was composed of five em- ployees, three of whom (Ferriera, Hutloff, and Lawton) were known union organizers. They were all general stock clerks, as was Russell Moison; and the fifth em- ployee, DeMarse, worked solely at processing precious metals in the gold safe. Although in early January cen- tral stores was somewhat behind in its work,2 4 on Thurs- day, January 12, Dansereau decided to transfer Moison to the boxing department for a few days. Dansereau stated, over McKiernan's objections, that central stores was not his priority, that he realized that work would back up there, and that his use of Moison in the boxing department was important in the circumstances. On the day after, Friday, January 13, Lawton was laid off. Because of Moison's transfer and Lawton's layoff, the central stores department was left with McKiernan, as supervisor, who was unable to do any physical work be- cause of medical problems, and DeMarse, still in the gold safe, Hutloff, and Ferriera. The small backlog which existed on January 13 continued to grow as work increased, and it seemingly became impossible to keep up even with the same level of work with only two produc- tion employees in the department. The delays and back- log of work were exemplified by the fact that the shelf used to store completed work was so full that work had to be stored on the floor awaiting other items to com- plete pieces and assortments of jewelry; that other em- ployees came into the department from time to time to do assorted tasks, many of them being unfamiliar with the work so that the work had to be corrected; that there was an increase of priority work, with expeditors marking it with rush tags; and that, in desperation, re- quests were made of central stores employees by Danser- eau and Brian Stevenson of Respondent's production control department to rush through the work without doing the normally required paperwork. 24 In early January, a sixth employee, Mascio, was discharged Shortly thereafter, McKiernan received permission to and did hire two more em- ployees. They remained on the job, however, for only a few hours. Whether the backlog in central stores was attributable to these facts is not absolutely clear, but certainly an inference is warranlted that the de- partment was understaffed when the union campaign began. McKiernan testified that he complained on several oc- casions to Dansereau and Hedison about the shortage of employees in his department, to no avail. Hutloff and Ferriera, feeling pressed, complained to McKiernan that they could not physically handle the work that was re- quired of them, even though they voluntarily agreed to work overtime during this period. Strangely, Ray Hebert, then general factory foreman, asked McKiernan during mid-January if he knew of any experienced per- sons who could help out in the department, and McKier- nan gave him the names of Moison and Lawton. Within a day or so, Marinelli asked the same question and fur- ther asked what the problem was, to which McKiernan replied that he had been telling him for a week that cen- tral stores needed more help. Finally, Hedison came to the central stores department and asked what the prob- lem was and specifically noted that McKiernan should get more help. The following day, January 24 or 25, Moison was transferred back to central stores and, on the same day, Callahan asked McKiernan if he had any way of reaching Lawton. By letter dated January 26, Re- spondent recalled Lawton, requesting that he report to work the following Monday, January 30. On that Monday, Hedison appeared in the department and complained that employees were engaged in a slow- down. Later that day, McKiernan was fired, allegedly for incompetence and lack of leadership, although McKiernan vehemently protested that Respondent had not given him enough employees to adequately do the job, and that it had become impossible to catch up that soon because Lawton had just been recalled and Moison was out sick that day. The following day, the remainder of the central stores department (excluding DeMarse) was fired. I credit the testimony of McKiernan, Hutloff, and Fer- riera that there was no slowdown in the central stores department. The fact that they voluntarily worked over- time is inconsistent with Respondent's position that they were deliberately attempting to disrupt Respondent's op- erations. I also credit their testimony that the backlog in the department was caused, not as a result of their ac- tions, but solely because Respondent drained the depart- ment of adequate manpower. Hutloff, Ferriera, and Lawton were active participants in the union organizing activities; indeed, Lawton participated at a preelection conference at the Board's Regional Office on January 24, a week before he was discharged. It thus cannot be argued that Respondent was not fully aware of the union activities of these three individuals. I note also that Moison had signed an authorization card for the Union. Further, McKiernan had been specifically interrogated by Hedison on January 10 as to the strength of the Union in his department and, out of all of the supervisors attending the meeting at the Chalet Restaurant on Janu- ary 19, had been selected to explain the participation of employees in his department in the union organizing ac- tivities. The only person who was excluded from the dis- charge was DeMarse, parenthetically the only person who had not indicated support for the Union, and an em- ployee who had been invited to the meeting at the Chalet Restaurant. HEDISON MANUFACTURING COMPANY 813 As a result of all the foregoing and because there is no showing that there was any credible justification for the discharges, I find that the discharge of the four employ- ees was solely a result of their union activities. The General Counsel alleges that the discharge of Su- pervisor McKiernan violated Section 8(a)(l) of the Act on two grounds: (1) that his discharge was an integral part of a pattern of conduct aimed at penalizing employ- ees for their union activities, relying on the timing of McKiernan's discharge, the alleged admission of De- Marse that McKiernan was fired because of his employ- ees' protected activity, and the transparency of the scheme by which the central stores department was ac- cused of a slowdown after being starved of adequate labor; and (2) that his discharge resulted from his failure or refusal to oppose the Union in the manner and to the extent desired by Respondent in its unlawful campaign during the preceding 3 weeks. It is quite accurate that the discharge of a supervisor violates Section 8(a)(1) of the Act if motivated by the su- pervisor's failure or refusal to engage in unfair labor practices, the second ground relied on herein by General Counsel. Harvey's Wagon Wheel, Inc., d/b/a Harvey's Resort Hotel & Harvey's Inn, 236 NLRB 1670 (1978). However, there is no record support for the proposition that McKiernan failed or refused to engage in unfair labor practices. He cooperated fully in answering man- agement's questions as to how long the Union had been organizing in his department. It is true that McKiernan was asked to engage in surveillance; but he agreed to do so, although he never pursued the matter. He was also asked to tell his employees that Respondent's wages were higher than other jewelry concerns, which he agreed to do only upon being shown proof by Respond- ent. Other than these incidents, the record is barren of any requests made of him to violate the Act from Janu- ary 12 to January 30.25 Accordingly, I find that McKier- nan was not discharged for failing or refusing to engage in unlawful conduct. The discharge of a supervisor also violates Section 8(a)(1) if it "is an integral part of the unlawful etlort to thwart employees' union activities," Buddies Super Mar- kets, 223 NLRB 950 (1976),26 the first ground urged by the General Counsel. In J. D. Lunsford Plumbing, Heat- ing and Air Conditioning, Inc., 237 NLRB 128, 130 (1978), the Board stated: Where the Board has applied the "integral part of a pattern of conduct aimed at penalizing employees for their union activities" exception, it has done so in contexts where a nexus existed between the ac- tions directed at the supervisors and the impact upon employees, such that the supervisors had served, in effect, as conduits for actions aimed ulti- mately at intimidating or retaliating against employ- ees. For example, the exception was applied where, assuming supervisory status, the discharge had been 2s I do not hold hat Rspondeclts request (of McKiernan to rcprcsclt to employc"s that Respondent's wage scale ;las high eithecr trulhfull r not -was violtise of the Act 26 Enforcemen was denied ill an unpublishlcd decislon, 55) 2d 39 (5th Cir 1977) The principle st tted is still oatrdI law designed to "discourage union activities in general among the employees," Heck's Inc., 170 NLRB 178, 184, footnote 8 (1968), enfd. in part 418 F.2d 1177 (C.A.D.C. 1969); see also Fairview Nursing Home, 202 NLRB 318, 324, footnote 34 (1973), affd. with- out published opinion 486 F.2d 1400 (C.A. 5, 1973), rehearing en bane denied 491 F.2d 1272 (C.A. 5, 1974), cert. denied 419 U.S. 827 (1974), petition for rehearing denied 419 U.S. 1060 (1974), and where the employer's efforts to retaliate against employees had been frustrated by the discharged supervisor's refusal to cooperate in those efforts, Miami Coca Cola Bottling Company doing business as Key West Coca Cola Bottling Company, 140 NLRB 1359, 1361 (1963). Similarly, in Pioneer Drilling Co., Inc., 162 NLRB 918, 923 (1967), and in Krebs and King Toyota, Inc., 197 NLRB 462 (1972), the supervisors' terminations had been "a ploy to facilitate or cover up the contemporaneous and subsequent unlawful discharges of employees." Sibilios Golden Grill, Inc., 227 NLRB 1688, footnote 3 (1977). In each of these cases, the employer's immediate action(s) against the supervisor(s) had as its ultimate object the employees against whom the employer was re- taliating or was attempting to intimidate. In sum, the supervisors were mere vehicles for the employ- ers' unlawful discrimination directed to the employ- ees. In Pioneer Drilling Co., Inc., supra, enfd. in pertinent part 391 F.2d 961 (10th Cir. 1968), the discharge of su- pervisory drillers was unlawful because it was used as a pretext for discharging prounion employee drillers by employing an industry custom that, when supervisory drillers were terminated, their crews were also terminat- ed. McKiernan did not join the Union nor openly espouse its cause. However, McKiernan obviously did not enthu- siastically support Respondent in its aim to defeat or "crush" the Union, following the advice of his attorney brother to remain aloof from the labor struggle and not to change his work habits. As a result, McKiernan op- posed the layoff of Lawton on January 13, refused on January 16 to promote Respondent's cause unless shown proof that Respondent's wages and benefits were better than nearby jewelry companies, repeated his neutrality to Graham his neutrality on January 16, and openly solicit- ed Respondent to bring back Lawton and Moison into his central stores department. It is obvious that McKier- nan did not ingratiate himself with top management. McKiernan's narration of the events of January 30 is telling. Until that day, McKiernan was never warned about the quality of his work. Rather, he was praised for it. In mid-December 1977, he received a wage increase, from $225 to $240 per week. In late 1977 Hedison of- fered him the position of foreman of the central routing department. At a workmen's compensation hearing at the end of 1977, McKiernan was praised by Alfred Bolduc, Respondent's office manager, as the best worker he had seen since he worked at Respondent, and that Hedison considered him to be one of his top junior executives. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The events of January 30 represented a complete turn- around. That afternoon, after having heard McKier- nan's pleas during the preceding weeks for more man- power, Hedison expressed his complete disappointment with McKiernan and accused him of permitting Hutloff to loaf. McKiernan insisted that Hutloff was working and explained what he was doing. Hedison asked wheth- er that was what McKiernan wanted America to come to, to which McKiernan stated that he did not know what Hedison was talking about. Finally, Hedison re- marked that McKiernan would have to get up pretty early in the morning to fool him. McKiernan said he was not trying to fool anyone and that his department was working up to its capabilities. Hedison repsonded that that was "a bunch of bullshit." About an hour later, Marinelli fired McKiernan on the ground that he "stunk" as a supervisor, was incompetent, and lacked leadership qualities. McKiernan's check was in Marinelli's drawer. In parting, Marinelli stated that he and Respondent would do everything in their power to ensure that McKiernan never collected a penny of unemployment compensation. The precipitous termination of McKiernan, and Re- spondent's complete change of attitude toward him, can be attributed only to an attempt to set him up as a cover for the discharge of the remainder of the central stores department the following day. 27 Respondent had already tested McKiernan's loyalty and found, to its chagrin, that he was neutral. McKiernan was clearly offering no overt help to Respondent's antiunion campaign; and, if he had not been fired, and the employees in the central stores department were fired, that would leave Respondent with an unwilling supervisor in its midst who could easily thwart the false defense of a slowdown which was to be the justification for the discharges. Although McKiernan had not joined the Union, the holding of Donelson Packing Co., Inc., and Riegel Provision Company, 220 NLRB 1043 (1975), compels the conclusion tht McKiernan's discharge was "closely tied" to the dis- charge of the central stores department employees and was an "important element in Respondent's total strategy to rid itself of the Union." Accordingly, McKiernan's "discharge was 'an integral part of a pattern of conduct aimed at penalizing employees for their union activities,"' and therefore violated Section 8(a)(l) of the Act. Pioneer Drilling Co., Inc., 162 NLRB at 923. In finding that Respondent violated Section 8(a)(1) of the Act, I do not rely upon Ferreira's testimony that then Supervisor DeMarse had stated that McKiernan was fired because of his employees' protected activity. First, I am not at all persuaded that DeMarse was a su- pervisor, although he was selected for a very brief period of time to replace McKiernan. The record shows that DeMarse quickly turned down that job. I refuse to bind Respondent for the statement of a person who served as a supervisor only for a few hours and other- wise was an employee in the bargaining unit. Second, I discredit Ferriera's testimony that the statement was made. Ferriera gave an investigatory affidavit to an 27 I have already found that there was no slowdown in the depart- ment. agent of Region I specifically relating to McKiernan's termination and made no mention of DeMarse's state- ment. I cannot believe that Ferriera would not have re- called it at the time his affidavit was taken. Rather, Fer- riera's addition of DeMarse's reaction was merely an effort to bolster the chances of McKiernan's success; and I discredit it. 2. The constructive discharge of June Lockhart The General Counsel alleges that June Lockhart, first employed in October 1977, was constructively dis- charged by Respondent on February 3. There is no ques- tion about Lockhart's union activities prior to January 10, nor her attendance at the Woonsocket meeting on January 9, nor her leafleting and posting of notices in the plant; and it is highly probable that Respondent knew of her union adherence. I so hold. In addition to Respond- ent's knowledge of her union activities, the General Counsel relies on the following facts to support its com- plaint that she was constructively discharged. On January 31 she and employee Patricia Donovan asked Don Fontaine, their new supervisor in the central routing department, for a raise in pay. She complained that it was bad enough that she was making the mini- mum wage, which was the same as she had received in her earlier job in the stone picking department; but stone picking was not as involved as her work in central rout- ing. She also complained that she felt that she was being discriminated against because employee Steve Allen had just been hired and was being paid more than she was, despite the fact that he had no prior experience in the jewelry industry. On the next day, Tuesday, Fontaine transferred Lockhart to the plating department section of central routing to weigh up the work that came out of the plating department, sign it out, and bring it across the hallway to the next department and put it on the table. Lockhart stated that the job was different, because she did not walk around the different departments as much, that she was alone, and that there were not as many people to talk to. In the principal section of central routing, she had contact with the tubbing, stone picking, soldering, press, linking, and central stores departments; in the plating section, she had no contact except walking through the stringing department to get to her work area and the department across the hall. She continued to work in the plating section on Wednesday, February 1, when she found out that Dono- van had obtained a raise. She confronted Fontaine as to whether she got her raise; Fontaine said that it had been rejected. She then went to Production Manager Marin- elli, who commented that there were not going to be any more raises in the central routing department and that her wage rate would be reviewed in August. When Lockhart mentioned that Donovan got a raise, Marinelli stated that he considered her work harder and that she was classified as working at a different department. As to the raise which was granted to Kathy Duke, he said that she had been employed for a couple of years and had not had a raise for a while. He denied that he was discrimi- HEDISON MANUFACTURING COMPANY 815 nating against Lockhart. Parenthetically, Lockhart agreed that Kathy Duke was due her raise.28 During work on that day, Lockhart developed a skin rash, a problem she had never had before. She went to nurse Bittner to see if she could relieve the itching. Bittner gave her a cream that was supposed to neutralize the itching and gave her gloves to wear at work. Lock- hart claims (denied by Bittner) that Bittner told her that the rash was probably due from exposure to nickel in the plating department. Lockhart returned to work, some- what relieved from her ailment; soon, however, the itch- ing became more severe and she complained to Fontaine about it. However, she apparently worked the rest of the day without further incident. On Thursday, Lockhart was once again assigned to the plating area, despite her complaints to Fontaine about her continuing rash. The rash continued, and became more severe; and Lockhart again went to the nurse who, testified Lockhart, gave di- rections to Fontaine that she did not want Lockhart working in the plating department anymore. Later, be- cause the itching became even more intense, Lockhart left work and went home. On Friday, Lockhart returned to work in central rout- ing and performed her old functions. However, Fontaine told her that, as of the following Monday, he was trans- ferring her to the carding department for health reasons because she was still suffering from her rash and she would be better off in the carding department where she would not come in contact with nickel plate. Lockhart further testified that she could not understand why she was being transferred, because Ken Parillo had just been employed in the central routing department during the middle of that week and he was performing the same functions as Lockhart was. Indeed, LePere was instruct- ing him how to do different jobs, and Parillo constantly asked Lockhart questions about the job. When she com- plained to Fontaine about sending an experienced person to the plating area (namely Lockhart) and keeping an in- experienced employee in the principal portion of central routing, Fontaine replied merely that he wanted to keep Parillo in central routing. Lockhart completed her work in central routing on Friday and failed to report to work thereafter. General Counsel claims that Lockhart was harassed into leaving her employment because of the following: (I) the threat to freeze her wages for at least 8 months; (2) the removal of the chairs she had previously used in most of her work duties; and (3) the transfer to the card- ing department "away from her pro-union work-mates." There is no doubt that all three events happened, but it is difficult to relate them to the alleged constructive dis- charge. Perhaps foremost, Lockhart admitted that she 28 Although pay raises were granted to Donovan and Duke, O'Brien later refused to grant increases to employees Jalette and Shirley Miller on the sole ground that the union campaign was pending O'Brien admitted that the withholding of increases was in line with his instructions to var- ious foremen that increases could not be granted. I find that the refilsal to consider the grant of increases for this reason alone was not in accord with Board law, GAF Corporation. 196 NLRB 538 (1972). and was in- tended to create animosity towards the Union by suggesting that it was the Union which was solely responsible for the withholding of increases, in violation of Sec 8(aXI) of the Act (par. 8(v) of the amended consoli- dated complaint). later told Alfred Bolduc, Respondent's office manager, that she had quit because she wanted a job closer to her home. Eventually, she obtained a more easily accessible job. In an attempt to rehabilitate her, the General Coun- sel elicited testimony that she had lied to Bolduc to hide what she said was the real reason for her quit, that Re- spondent harassed her because of her union activities, consistent with the theory now urged by the General Counsel. 29 I do not believe her explanation, which she alleged she confided to Fitzpatrick, Carr, and others. If it were accu- rate, the probabilities are that the Union, which filed nu- merous unfair labor practice charges on all kinds of ac- tivities and seemed to have trained its organizing com- mittee in a most sophisticated manner, would have filed charges on Lockhart's behalf. However, the amendment to the complaint alleging Lockhart's constructive dis- charge came at a rather late date and almost as an after- thought. I am persuaded that Lockhart's explanation to Bolduc was truthful, and that her testimony at the hear- ing was merely an attempt to tailor her own situation to the theory of the General Counsel.3 0 I thus find that she was not constructively discharged in violation of Section 8(a)(3) of the Act. Furthermore, even without Lockhart's admission to Bolduc, I have grave difficulties with the General Coun- sel's theory. I have previously found that the removal of the chairs in the central routing department was a viola- tion of Section 8(a)(1) of the Act, but I am uncertain that that violation played any specific role in Lockhart's deci- sion. In fact, she was transferred to the plating area of central routing where there is no evidence that chairs were not permitted. Had she remained there, she could have sat. Later, she was transferred to the carding de- partment; she could have there, too. Just as important, because the action of Respondent was allegedly directed at Lockhart's union activities, I am perplexed by the very theory of General Counsel as it relates to Lockhart's transfer to the plating section of the central routing department. That, I had understood, was a more favorable assignment, so favorable that Gen- eral Counsel alleged that it was an unfair labor practice (par. 8(1) of the complaint) for Hedison to have revoked LePere's assignment to the very same area on January 11 in order to discourage LePere from engaging in union activities. 31 If that be so, and Lockhart had continued 28 Respondent vehemently objected to the attempt to elicit from Lock- hart her motivation for making the statement to Bolduc. Because motiva- tion constitutes a vital part of the General Counsel's case-that is, wheth- er alleged discriminatory conduct caused an otherwise voluntary act--the question posed was entirely relevant. 31 I find that Lockhart was not a wholly reliable witness. For example, she testified that, late in the week of January 9, she carried a 3-4-inch pile of union leaflets into a bathroom and was observed by Pollen, when she came out, carrying about one-quarter of the leaflets My very rough guess, would indicate that she posted some 400-500 leaflets in the bath- room-a feat which I find is incredible. 31 Compare General Counsel's argument in his brief that in revoking LePere's assignment to the plating area: "presumably, Hedison was con- cerned about assigning a known, prominent union organizer to work on the finished goods side of the plant, where the Union's support was weaker than in the Press, Central Routing, Central Stores and Soldering departments," (p.12) with the General Counsel's argument that Lockhart was being discriminated against because, "Unlike her previous assignment Continued : 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there, there might not have been any issue for disposi- tion. Of course, Lockhart did not remain there, but in- stead sought the aid of nurse Bittner to relieve her rash. That raises the next problem: Although I cannot dis- pute that Lockhart was indeed suffering from intense itching, I can find no record support for the theory that the rash was caused by contact from nickel, other than some surmise and conjecture. Respondent's witnesses were unanimous in stating that Lockhart would not have been in contact with nickel, as a hypoallergenic plating (or derma plating) protected all jewelry-and no one else seems to have suffered in the acute manner to which Lockhart testified. Further, no one seems to support Lockhart's testimony that her rash was so severe that it spread all over her arms. In any event, there is no doubt that Lockhart saw nurse Bittner several times,3 2 as a result of which Bittner finally recommended that Lockhart (so she told LePere) be transferred back to central routing or to another de- partment. Fontaine testified that he was told only to transfer Lockhart to another department. Because trans- fers were so common in Respondent's plant, as demon- strated by the employment history of Lockhart alone, I find nothing unusual about Fontaine's transfer of Lock- hart in these circumstances. Clearly, she requested a transfer from the plating area; that she may not have ob- tained a transfer to the precise department she desired is not a violation of the Act. Finally, with respect to the denial to Lockhart of an increase in pay, it should be noted that two other em- ployees, Donovan and Duke, received raises. Donovan was a known supporter of the Union, which offers little help to the General Counsel's case that Lockhart was denied a raise because she was a union adherent. Duke had been employed for several years and was due a raise, according to Lockhart's own admission, which comforts the General Counsel little when compared with the fact that Lockhart had been employed for only 3 months. As to Lockhart's claim that she was being discriminated against because newly hired employee Allen received more than she did, I note that Allen was also a supporter of the Union. I have more difficulty with Marinelli's statement to her that she would not be considered for a raise until August, but the record lacks any showing that where she worked with l.ePere and had regular contact with he Press and Central Stores departments, now l.ockhart worked largely on her own, bringing work from Plating to Stringing, except for occasional trip, back to Central Routing" (P. 35.) The allegation involving LePere was that she had been assigned to the plating section of central routing. Hedison, however, objected, stating that he wanted Kathy Duke in that position, based upon her experience As a result. LePere was reassigned to the main section of central rolitig. I find it most difficult to follow the General Counsel's theor y of a violi- tion of the Act, in light of the inconsistent positions which he has taken It is true that LePleres union activities were well known before the above-related incident, hut there must be more to an 8(a)( ) violatil than that. I cannot tell whether Duke was more experienced than LePere or vice versa; I do not evenl know whether this assigilment was a promotion a demotion. or a lateral transfer. Further I am not aware of why, even if Hedison had never before participated in a decision to per- s.inally guide Lelere's employment, as argued by the £General Counsel, his personal interienttion now violates the Act I thus find par 11 I of the amended consolidated complaint to be totally without merit. 2 In so finding, I note that littner had little, if any, indepenldent rec 1d- lection of any of these incidenrts aild generally discount her testill)oll this was the motivating factor for her voluntary termina- tion. She seemed more dissatisfied with the fact that she did not receive an immediate raise. The General Counsel contends that Marinelli's state- ment that she would be considered for a raise in August flew in the face or standard policies that rates would be reviewed in March and that the wage rates of new em- ployees would be reviewed after 30 days of employment. These policies were testified to by O'Brien, who first joined Respondent after Lockhart had left. A fair read- ing of his testimony makes unclear whether he was testi- fying to Respondent's policies over a period of time, or the policies as established by him. Indeed, in earlier testi- mony, he stated that there was no firm policy as to when employees received a wage increase, and at the time of his arrival there were no automatic increases for new employees. He later changed his testimony. Be that as it may, Lockhart apparently knew of neither policy and the evidence does not otherwise sustain her reliance upon the wage review policy argued by the General Counsel. As a result, I dismiss paragraph 10(a) of the amended consolidated complaint. 3. Further allegations of 8(a)(l) violations On February 6, O'Brien called two meetings of all foremen, assistant foremen, and floorladies; the first meeting was principally for the foremen and a few assist- ant foremen; the second, for the remainder of the assist- ant foremen and the floorladies. Although there may have been some discussion of the union election cam- paign, O'Brien testified that the main thrust of his re- marks was to discuss his philosophy of management- that he had been successful in his manufacturing oper- ations by having employees meet with him on a regular basis so that he could keep the employees apprised of what Respondent was doing and so that employees could tell him what they wished he would do for them. O'Brien admitted that he stated that, when legally possi- ble, he would straighten out the problems. Further, he suggested that they encourage the formation of an advi- sory committee of employees. Such a suggestion, made in the presence of employees, is clearly violative of em- ployees' rights to self-organization, especially in light of the representation issues then pending (par. 8(ee) of the amended consolidated complaint). On March 1, O'Brien addressed a meeting of employ- ees 3 3 and told them there had been mistakes in the :': Uponl mtion of the General Counsel, I inliked the doctrine of Bunrtion Mills. Inc.. 146 NLRB 611. 633-634 (1964). because of Respond- ent's fililure to produce a duly subpenaed tape recording of the O'Brien speech to the employees II so doing. I prohibited Rehpondcnt from in- truoducinig the recording at any time and from calling its own witnesses to testify about what ()'rien had said (See pp 4(17 411 414 415. 1244 54 136h-h7. 1723-36. 198X7- 9 2647-52, and 3213 17 of the official trail- script I) he parties have moved that I take notice of a certain court pro- ceeding brought im the D)istrict Court for the District f Rhode Island. captioned "Hledison Manufacturing Company v. Robert S. Fuchs Re- gional )ircctor National l.abor Relations Board " Civil Action N 78 0498. i which Respondent sought a protecltive rder against my ruling declaring salid the (elicial Counscl's ubpoenu ducs teiurn aid requiring the pro(ductirlon of the tape recording I grant the motion and note that Resporidel's request was denlied and the coniplailt was dismissed by the district court oii ()clbhcr It). 1978; that Respondent mnoved the court to C(ontinued HEDISON MANUFACTURING COMPANY 817 past-otherwise, the situation would not have been bad. Hedison admitted his mistakes, he said; and, although he could not make any promises, he wanted the employees to look at his record. That record included putting women in authority and his meeting regularly with em- ployees. I view these remarks as implied promises of benefits to correct the past mistakes admitted by Hedison, despite O'Brien's disclaimer that he could not make promises. Otherwise, his reference to the paFt mistakes is a non se- quitur. The admission of mistakes promises that actions are going to be taken. See Raley's Inc., 236 NLRB 971 (1978). Further, the open-door policy announced by him, which was first raised at the February 6 meetings, im- plies a promise to entertain grievances to correct the past mistakes. Finally, his statement that he had promoted women to higher positions of authority in his prior man- agement position cannot be taken in vacuo, but clearly implies a promise to promote Respondent's women em- ployees, who until then had achieved positions no higher than floorladies. For these reasons, the February 6 and March I speeches violated Section 8(a)(1) of the Act (par. 8(x), (dd), and (ee) of the amended consolidated complaint). In light of Respondent's extensive unfair labor practices committed throughout the campaign, Uarco, Incorporated, 216 NLRB 1 (1974), cited by Re- spondent, is not controlling. For similar reasons, and because of the continuing unfair labor practices, O'Brien's letter after the election also violated Section 8(a)(1) of the Act. On March 20, while objections to the election were pending, O'Brien wrote: I recognize the feeling of many employees in the plant that the Hedison management has been given "another chance" to make our company an even better place to work. I take this as a personal chal- lenge and commitment. We all recognize that every company has room for improvement. With the com- plete support of Dave and Hike Hedison and with your cooperation, I feel confident that I can make these improvements. I invite every employee to come forward with any suggestions that will help to make Hedison a better place to work. I want and need your help and my office door will always be open to discuss any suggestion, prob- lem or complaint you might have. The letter is merely a continuation of Respondent's promises of benefits (or, at least, improvements) and of Respondent's solicitation of employees' grievances. The letter implicitly promises to resolve the grievances by stressing "improvements" and "better place to work." Because the letter is merely a carryover of Respondent's earlier and similar illegal conduct, it also impedes the employees' rights to self-organization, in violation of Section 8(a)(l) of the Act (par. 8(aa) of the amended consolidated complaint). amend and reconsider its order on October 19, 1978, and that the court denied and dismissed Respondent's motion on November 20, 1978. On Monday, February 6, the "Great Blizzard" began. So heavy and fast falling was the snow that, despite the fact that Respondent's plant closed early, some 50 to 60 employees (including some from temporary agencies) were unable to leave that day and were imprisoned by the snow for the rest of the week. Just as those employ- ees were unable to leave the plant, no one was able to report for work at Respondent's premises and other places of work throughout the entire State of Rhode Island. The loss of workers' livelihoods prompted the Governor to request that the President of the United States declare a state of emergency for the State and that Federal unemployment benefits be extended to all em- ployees whose firms did not compensate them. The Gov- ernor also urged that private industry in the State pay their workers for the week's loss of wages. It is conceded that Respondent paid all of its regular full-time employees for work actually performed on Monday, February 6, and for all other hours lost during the week because of the snowstorm. The issue is whether Respondent, as it argues, was genuinely motivated to "do good" because of the emergency, or whether Re- spondent was attempting to buy the election, as suggest- ed by General Counsel, who has the burden of proving a violation. He supports his position on three grounds. First, there is no showing that Respondent ever compensated its em- ployees for snow days. However, it is clear that no snowstorm ever hit Rhode Island with such ferocity, that at no time were numerous employees snowbound in Re- spondent's plant, and that this was a unique event. Second, the General Counsel alleges that the payment for the snow days occurred only 2 weeks prior to the election and that Respondent's president, H. David He- dison, commented, in reply to an employee's expression of appreciation, that he hoped the people in the factory remembered this when they voted in the election. In the circumstances, the timing of the payment is not a factor in determining whether the payment was malevolently motivated. The storm closed the Respondent's plant for the week of February 6, the decision to pay the employ- ees was made the following week, and there is no show- ing that payment was delayed for the purposes of influ- encing votes. Even if the payment had been made short- ly before the day it was made, I cannot say that a pay- ment 2-1/2 weeks before the election would have been any the less effective for the purpose of influencing votes than the payment made only 2 weeks before. I find that the timing of the payment was solely the result of the time of the snowstorm and the time when the decision was made. The comment of H. David Hedison is not, as the General Counsel argues, necessarily indicative of Re- spondent's intention to influence the election at the time the decision was made to make the payment. Rather, it indicates that, once having made the decision, at least one of Respondent's management sought to show that Respondent did not always act against the interests of the employees. In any event, I view this conversation as isolated and not representative of an illegal motive. Third, General Counsel argues that Respondent's moti- vation could not be humanitarian because no payments were made to the "night shift workers, many of whom _ 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are temporary student employees, and ineligible to vote in the election." The record does not directly support this statement; but, assuming arguendo that it is true, it is equally important that some night-shift employees were eligible to vote. By not paying them, Respondent ran the risk of antagonizing them, the antithesis of what the General Counsel alleges that Respondent was attempting to accomplish. For these reasons, I find that Respondent did not vio- late Section 8(a)(l) of the Act by paying wages for the week of February 6 (par. 8(p) of the amended consoli- dated complaint). On February 27, LePere was in the carding depart- ment and saw Hedison leading a television crew to Cindy Chausse, one of the union antagonists. As one of the crewmembers passed LePere's work area, LePere asked him if he wanted to know why the employees were trying to organize a union. While still talking, He- dison walked over and asked LePere to repeat what she had told the crewmember. LePere refused, and Hedison complained that she was talking on his time and that was not fair. When LePere refused to respond, Hedison said: "If you want to stay here you better play fair." The General Counsel alleges that this incident consti- tutes an illegal interrogation and threat. I agree. Because of Hedison's failure to testify, and in the context of these facts, I infer that he heard all or part of LePere's conver- sation which was directed at the employees' organizing activities, he interrogated LePere about that conversa- tion, and he threatened her with termination if she con- tinued to discuss the Union. The record indicates no rule against talking on the job, and Hedison's remarks clearly imposed a new rule prohibiting discussion of union activ- ities. His interrogation of LePere was thus clearly coer- cive, in violation of Section 8(a)(1) of the Act (par. 8(q) and (r) of the amended consolidated complaint). During the week of the election, which took place on Friday, March 3, and particularly March 1 and 2, Secu- rity Guard Pollen stood immediately outside the door of the plant cafeteria, leaning against the fence, and peering into the cafeteria, during all of the break periods. Ac- cording to Fitzpatrick, he never had done this before. Respondent's defense was that Pollen's attendance was necessary because of disputes which had arisen between the pro- and antiunion groups of employees. The proof does not persuade me that a threat of altercation was im- mediate or that it required Pollen's intensive surveillance during all the break periods.3 4 34 Because Pollen was Respondent's security guard and was responsi- ble for insuring the peace, safety, and security of the plant, Pollen was acting as Respondent's agent. Respondent is charged with two other vio- lations of the Act by reason of Pollen's conduct. During the few days prior to the election, Jalette claimed that Pollen repeatedly threatened him with termination from employment ("I can't wait to escort you out of here"). Pollen testified that Jalette pointed to a "yes" button that he was wearing and said that he supposed that Pollen would now escort him out of the plant; to which Pollen replied that he would do so any time Jalette wanted him to. Jalette also testified that, in or about late March or early April, Pollen questioned him about an unfair labor practice that had been filed by the Union over the prior incident. Pollen testified that the charge was untrue, particularly because he had no authority to fire anyone and that Jalette agreed with him: however, Jalette testified that he did admit that the unfair labor practice charge lacked merit. Under established law, attempts to organize on an em- ployer's premises are not wholly protected from the em- ployer's scrutiny. As the Board stated in Porta Systems Corporation, 238 NLRB No. 21 (1978), "[u]nion repre- sentatives who choose to engage in their union activities at the Employer's premises should have no cause to complain that management observes them" See also Milco, Inc., et al., 159 NLRB 812, 814 (1966), enfd. 388 F.2d 133 (2d Cir. 1968); Dumas, Inc. d/b/a Sterling Man- ufacturing Company, 169 NLRB 892, fn. 1 (1968); Chem- tronics, Inc., 236 NLRB 178 (1978). However, in ITT Automotive Electrical Products Division, 231 NLRB 878 (1977), the Board held that there was no unlawful sur- veillance when the observation was limited to a brief in- spection at the outset of the handbilling to ascertain the legality of the employees' activity. As a consequence, the rule permitting surveillance does not give employer carte blanche. See Ace Manufacturing Co., Inc., Division of A-T- O, Inc., 235 NLRB 1023 (1978). On that basis, Pollen's presence at the cafeteria on March 1 and 2 was more than a brief inspection, and I am not persuaded that he was there for justifiable business reasons. Respondent's supervisors testified without contradiction that they reg- ularly ate in the plant cafeteria. Clearly, their presence would assure that altercations, if any, would speedily be prevented. Pollen's watchful eye, I am convinced, was not fixed on fights or threats of fights. Rather, he was specifically directed by Marinelli (who did not testify) to be there to thwart free discussion during the critical days prior to the election. I thus find that Respondent violated Section 8(a)(1) of the Act (par. 8(s) of the amended con- solidated complaint).3 5 In support of paragraph 8(z) of the complaint, Mainte- nance Department Supervisor Barrett testified that, 2 days before the election, he attended a meeting of the de- partment heads, at which O'Brien told them that the election campaign was right down to the wire and that the supervisors should return to their departments and talk to a few employees at a time about how much better Respondent would be without the Union. O'Brien added that caution should be thrown to the wind, that viola- tions at that time did not mean anything, and that Re- spondent could suffer with as many violations as they could get. As a result, Barrett testified that he returned to the maintenance department and told employees Ja- lette, Cook, Norman Nault, and Steven Maziasz that, if the Union got in, Hedison would not sign a contract, they could go on strike, and they would lose their jobs. Although O'Brien did not deny the instructions as re- lated by Barrett, I nonetheless do not believe Barrett's No matter whom I believe, and I am inclined to believe Pollen, if only because Jalette seemed to me to be most hesitant and faltering in his testi- mony, I do not find that Pollen's statements to Jalette could, in any sense, be considered within the scope of his authority-that of a security guard to insure that thefts were prevented and rules were obeyed and to report on unusual events. Accordingly, I find that his statements, even if be- lieved, are not binding on Respondent; and I dismiss pars. 8(t) and (jj) of the amended consolidated complaint. 3s For similar reasons, I find that Respondent also violated Sec. 8(aXI) of the Act by Dansereau's attendance in the cafeteria on January 16 during both break periods and lunch hour. However, under Porta Sys- tems, supra, I do not find that Dansereau's surveillance of the leafletters in the parking lot on March 10 violated the Act (par. 8(f) of the amended consolidated complaint). HEDISON MANUFACTURING COMPANY 819 testimony. Both Nault and Maziasz testified that Barrett was on vacation on those days, and, it seems to me, it was then incumbent upon the General Counsel to rebut this very damaging testimony. The General Counsel did not do so. Furthermore, I am not persuaded that Bar- rett's testimony was at all realistic, given the fact that no other activity as heinous as Barrett related was testified to by anyone else, including Jalette, who did not cor- roborate Barrett's testimony. Finally, because Barrett had already reported to Graham that the Union's support in the department was minimal, it seems very strange that O'Brien would target the maintenance department for the kind of threats to which Barrett testified. I dismiss paragraph 8(z) of the amended consolidated complaint. E. Respondent's Refusal To Bargain; the Layoff in the Linking Department,; Further Rule Changes, and the Layoff in the Press Department 1. The Respondent's refusal to bargain I have previously found that, on January 11, the Union demanded that Respondent recognize and bargain with it as the exclusive bargaining agent of Respondent's pro- duction and maintenance employees and that, on January 13, Respondent refused to do so and has continued to refuse to do so. Because I find that the Union represent- ed a majority of Respondent's employees on both Janu- ary 12 and 21, the latter being used since the Union's demand for recognition was a continuing demand, and because I also find that the unfair labor practices com- mitted by Respondent were so serious as to warrant the issuance of a bargaining order, retroactive to the date Respondent commenced upon its course of illegal con- duct, a number of unfair labor practices already found under Section 8(a)(l) and (3) and an allegation dismissed under Section 8(a)(l) are unfair labor practices under Section 8(a)(5). a. The Union's majority In order to prove the Union's majority status, the Gen- eral Counsel introduced Respondent's Excelsior 6 list which was stipulated to be all the members of the appro- priate unit with the exception of certain individual em- ployees whose names were circled thereon. In addition, during the course of the hearing, stipulations were en- tered into by the parties deleting the names of various employees, adding the names of others, and setting forth the dates when employees were hired or terminated em- ployment and the dates when authorization cards were signed or should be credited as having been signed. As a result of all of the stipulations, the vast majority of the appropriate unit was stipulated, as well as the vast major- ity of the authorization cards.37 There remains for reso- a6 Excelsior Underwear Inc., 156 NLRB 1236 (1966). 37 In accordance with the parties' stipulations, I have excluded from the unit the following employees who terminated their employment on or before January II: Dave A Akerly, Gracinda L. Brito, Diana L. Dutrem- ble, Donna L. Gilbert, Dawn E. Graton, Debra L. Jones, Lillian M. Leonard, Ann Marie Lescarbeau, Colleen A. MacKenzie, Robert P Masse, Donna M. Pedro, Shirley Ross, James P. Rossi, James V. Scow- craft, Judith L. Shaw, Lorraine D. Spoor, Linda L. Tetrault, Robert T Truesdale, Jo Anne C. Tutt, and Theresa M. Walter, I note that in the transcript the parties stipulated that Akerly was "hired" on January 4, lution, however, the status of certain employees, one of whom is alleged by the General Counsel to be a supervi- sor, and whether particular cards should be counted. As to these individuals, I make the following findings and conclusions: I include as a member of the appropriate unit Shoushan Andriasian, whose name appears in Respondent's payroll records for the weeks ending January 21 and 28, with no indication that he was paid for those weeks. The General Counsel contends that he should be excluded from the unit, noting that: "Respondent offered no evidence as to this individual's identity or his inclusion in the bargaining unit." In the posture of this proceeding, particularly the framing of issues as to the inclusion or noninclusion within the unit of the "circled" names on the Excelsior list, the burden was on the General Counsel to prove the Union's majority status and to come forth with evidence that the circled employees were not within the unit. The General Counsel proved, admittedly by stipulation, that many of the employees had been terminated by Respond- ent prior to January 10. I see no reason to shift to Re- spondent the burden of proving the employment status of Andriasian. It may well be that Andriasian was not em- ployed by Respondent during the critical period; howev- er, on the present state of the record, I cannot exclude him from the appropriate unit. The General Counsel, on its own, raised an issue of the validity of the card of Phyllis Ballou, who signed an authorization card on November 25, 1977, but later re- quested Fitzpatrick to return it. Respondent has taken no position on this matter. Fitzpatrick notified Ballou that she should call the union office if she wished to have her card returned. Ballou took no action; I cannot find any effective revocation in these circumstances, and therefore credit her card. The General Counsel objects to the inclusion in the appropriate unit of Alice A. Beausoleil, Linda G. Beauso- leil, Glenn R. Bruhn, Blanche Coccoli, Gloria T Horton, Sandra A. Moreau, and Robert K. Wagner because they were new employees hired to replace the employees laid off on January 13. He argues that it would be inequitable and contrary to Board law to expand the size of the unit by including replacements for unlawfully laid-off union 1978. My notes indicate that he was "fired" on that day, a fact confirmed by G.C. Exhs. 6(c) and 23. I correct the record accordingly. I have also credited the authorization cards of Robert Plante and Cheryl Enright, who, the same exhibits and G.C. Exh. 24 demonstrate, terminated their employment after January 12 and before January 21. There appear to be a number of individuals on the Excelsior list whose status was not stipulated by the parties and whose names were circled on the appropriate exhibit. I have no reason to doubt, from my examination of the record, that they were employees of Respondent during the criti- cal period. I therefore include them in my computations of the Union's interest. I have also given credit for cards which were dated in January, but with the wrong year (1977), which are not stale and, in any event. should have been dated "1978" but for the oft-repeated error of people to use the old year even after January I. In this connection, I note that the union campaign did not commence until late spring of 1977. Finally, I have taken into account the stipulations at pp. 825-830 of the official transcript. Finally, I include in the unit Alice Cote, who was alleged by the Gen- eral Counsel to be a supervisor. I have previously found, supra, that I may not review the Regional Director's finding that she is an employee. I also exclude James Stemin as a member of the appropriate unit as of Jan- uary 21, see fn. 9, supra. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adherents, citing Independent Sprinkler & Fire Protection Co., 220 NLRB 941 (1975), enfd. 95 LRRM 2064 (5th Cir. 1977). Under no circumstances may I include Coc- coli, Horton, and Moreau. Because they were hired on or about January 16, and their employment lasted only day, they were never employed on either of the critical dates involved herein. However, since I have found that the decision to lay off employees was finalized no earlier than January 12, that being the first date of employment of Bruhn and Alice and Linda Beausoleil, I find that they were not replacements of those laid off but were new employees whose status was not tainted by the Jan- uary 13 layoff. Wagner started in the epoxy department on January 18. Because no one from the epoxy depart- ment was laid off on January 13, I find that Wagner was not a replacement for an 8(a)(3) discriminatee. Further, I note that during the course of the hearing the General Counsel objected to the inclusion of Frances Tall and Gail Kelley. No objection was posed in the General Counsel's brief, an omission which I assume to be by in- advertence. However, because Kelley was also employed in the epoxy department and Tall was employed in the carding and boxing department, where there was no layoff, I do not find that they were replacements and I include them in the appropriate unit. Respondent refused to stipulate that Grace Clifton signed a card, since the signature on it was, in Hedison's opinion, undecipherable. Joseph Pine solicited this card in the factory cafeteria. He called Clifton to his table, where he was sitting with Fitzpatrick, and told Clifton he would like her to sign a card; Clifton agreed. Fitzpa- trick asked her whether she knew what the union card was all about. Clifton said she did; to which Pine asked her whether she knew that both he and Fitzpatrick were adherents of the Union. When Clifton answered that she did, Pine gave her a card. Clifton had trouble filling it out. Because the lunch break was ending, Pine gave Clif- ton another card, asked her to sign it at the bottom, and asked her permission, which she gave, for him to fill out the rest of the card. Pine soon found that he did not have sufficient information to fill out the card, so he gave Clifton yet a third card to fill out. Later, when Pine asked for the return of the third card, Clifton said that she gave it to her supervisor. Pine's reluctance in turning in the second card was that it did not look right, but he finally turned it in at a later date. (On the back of the card, there is a notation: "Joe turned in 2/26.") Pine positively identified the card as being signed by Clifton, and testified that it was signed before the first snowfall, which the parties have stipulated commenced on the evening of January 19 and continued throughout January 20. The testimony of the solicitor is sufficient to authenticate the card. Since there has been no showing of any facts which otherwise impugn the integrity of the card, I will deem it a valid authorization as of January 19. The General Counsel objects to the inclusion within the appropriate unit of Evelyn Di Carlo, the floorlady in the linking department, in which, in January 1978, there were eight employees to whom she assigned work and saw to it that they were performing correctly. She earned $3.80 per hour, whereas the other employees earned from $2.65 to $3 per hour. Di Carlo punched a timeclock, was paid for overtime, and worked side by side with the employees in the linking department. Sinis- calchi, Di Carlo's supervisor, assigned work to her each day and there was additional work on a shelf behind her work area which was ticketed with dates for the comple- tion of the work. Di Carlo assigned work in order, to each employee as she would finish her previous job. The only variance was, when there was a rush order, Di Carlo made sure to give the job to a fast employee. Di Carlo gave permission for employees to be excused to go to the nurse or to make a phone call. If an employ- ee thought that there was a mistake on a timecard and that the employee's pay was inaccurate, the employee consulted with Di Carlo, who in turn raised the matter with Bolduc and asked him to investigate. Employees who were sick telephoned and reported to Di Carlo, who made reports to the plant nurse. Di Carlo spoke to employees if they were not doing work properly and told them to go faster. If she spoke to an employee sev- eral times, without success, she reported the matter to Siniscalchi; and Di Carlo could take an employee off one job and put her on another. The issue of Di Carlo's status is by no means clear cut. However, she testified that she was a very "lenient boss" and permitted the employees to do "almost anything" as long as they got their work out. It was she who was asked to bring the linking department employees to the captive audience speech of March 2. It was she who re- ported that her department was overloaded with work and requested more employees. It was she who became furious when two new employeees were hired at an hourly rate higher than that being paid to employees Fitzpatrick and Barbara Forget and who insisted that she would go as high as she needed to, including Graham, in order to obtain increases for her more senior employees. These increases were granted a week later. It was she who, on or about February 1, brought to the attention of Gary Avedesian, the foreman of the linking department, the bad attendance of three employees, with the com- ment that their performance was not good. They were terminated. It was she who gave permission for LePere to talk with Fitzpatrick; and it was she, according to Dansereau, who was supposed to stop employees from visiting her department. It was she who in February made Forget move from one machine to another so that Fitzpatrick would not talk to Forget about the union campaign-talk which Di Carlo said she would not tol- erate. Finally, it was Di Carlo who laid off Fitzpatrick and Monteiro in late March, discussed infra. For all these reasons, I find that Di Carlo is a supervi- sor.3 8 The General Counsel contends that Ruth Gannites was not an employee of Respondent on either of the critical dates at issue. Bolduc, Respondent's office manager, testi- fied that the payroll department prepared weekly a pay- roll form for Automatic Data Processing (ADP), which '8 In so finding, I have considered the Regional Director's report and recommendations finding Di Carlo to be an employee. However, the evi- dence before me persuades me that Di Carlo exercised sufficient indicia of supervisory authority and exercise of independent judgment that I will not accord administrative comity to his report HEDISON MANUFACTURING COMPANY 821 processed and computerized payroll forms and pay- checks. Because of the constant changes of the composi- tion of the employees, either because of terminations, quits, layoffs, or leave of absences, or hires of new em- ployees, the weekly form submitted by ADP was man- ually changed by the payroll department to reflect cur- rent payroll. Although it was not the function of the payroll department to terminate or lay off personnel, it was obviously its function to keep proper and up-to-date records, if only to appease Hedison's dislike for the print- ing of extra timecards for employees who did not report to work because they had ceased being employees. Accordingly, the payroll department considered an employee as terminated only when so advised of the em- ployee's status. Thus, as a customary practice, if there had been no work for an employer for 2 or 3 weeks, the bookkeeper prepared a list of these employees and for- warded it to the personnel manager to ascertain why the employees had not worked. Presumably, the personnel manager would then advise the payroll department the status of the employees. On the other hand, there were occasions when the supervisor would mark "quit" on the employee's timecard, at which time the payroll depart- ment automatically entered the appropriate notation on the ADP forms and the employee's name was removed from the next weekly payroll report. There is no question that the word "terminated" was inserted next to Gannites' name on the ADP forms for the payroll week ending January 21. Further, Gannites did not work from the week ending December 3, 1977, to the week ending February 6, 1978, when she worked 6-1/4 hours. Bolduc attempted to explain that, when she was marked "terminated," that indication was inserted for payroll records only and was not meant to indicate that in fact Gannites had permanently severed her em- ployment. However, the ADP records also show the no- tation of "no pay" next to an employee's name when the payroll department desired to indicate that the employee did not work that particular week. In light of Bolduc's testimony that the word "terminat- ed" is inserted only when the payroll department is so advised and that "no pay" could have easily been written if no advice had been received, I conclude that Gannites had been terminated and that she was not a member of the appropriate unit on either of the critical dates. In so deciding, I am aware that Gannites' personnel folder does not indicate that she was terminated. I have also considered Respondent's argument that Gannites was on sick leave, but I find that it is unsupported by any evi- dence. Whereas Gannites' personnel file is silent, there is no question that the personnel file of Joyce Green is marked "quit" next to her initial employment noted as "from II/ 2/77 to 12/30/77." Those notations, on the first line of the exhibit, indicate that she was terminated from em- ployment at that time. The file also shows, on the third and fourth lines of her employment history, that Green was rehired on May 24 and voluntarily quit on June 23. Between those listings on her file, under her employment history, is a line, otherwise not completed, listing her rate of pay on January I as $2.65 per hour, that seems to indicate that Green had some interim employment be- tween November to December 1977 and May to June 1978. That interim employment was confirmed by Bolduc, read from other ADP forms ("Employee Earnings Record to Date") listing on each page an employee's year to date weekly pay-with one important discrepan- cy. The records, as testified to by Bolduc, showed that Green worked continuously during the payroll records from the week ending November 5 through December 17, 1977. Bolduc also stated that she worked I day during the week ending January 7 and did not work during the week ending January 14. Apparently, she re- turned to work the week ending January 21, when she worked 5-1/4 hours, and she worked an additional 17-1/ 2 hours during the week ending January 28, "for a total of 22-3/4 hours during the first quarter of that year," Bolduc testified. The total hours for the first quarter of 1978, as so re- capitulated, being the total of the hours recorded in the last 2 weeks of January 1978, leave no room for any other work in the quarter; and I specifically discount Bolduc's testimony that Green worked I day in the first week of that month for the reason that the ADP records do not record work by days, but only hours. If Green did not work during the first week of January, and I so find, then she would not have worked for Respondent for 4 weeks ending with the week ending January 14 when "terminated" was written on the payroll authoriza- tion sheet next to her name. The 4-week hiatus was in line with Bolduc's testimony as to the mechanics of checking with supervisors before notifying ADP to remove a name from the payroll authorization sheet. Further, Green's names is inserted in handwriting on the payroll sheet for the week ending January 21, demon- strating that her name had been removed by the payroll department. Finally, the notation of Green's increased pay from $2.60 to $2.65 on January I may be reconciled as merely an indication that the hourly rate for the work performed in late January was to be paid at that rate. Since Green worked only 5-1/4 hours during the week ending January 21, she was not during that week a regu- lar, part-time employee, but was probably employed only for a portion of I day; and I do not include her in com- puting the majority status of the Union on either of the critical dates. The employment records of Lucy Joseph show that she was steadily employed by Respondent from at least late November 1977 through the end of the first quarter of 1978, with the exception of the week ending January 14. On the payroll authorization sheet for that week, there is, like Green, the notation "terminated." Based on this record entry, the General Counsel argues that Joseph should be excluded from the computation of majority status at least for January 12 and 13. Although not wholly free from doubt, I agree. There is nothing to sup- port Bolduc's "assumption" that the entry was erroneous and that the payroll department deviated from its policy of writing "terminated" when informed to do so. Fur- ther, I note that Joseph worked only 8 hours during the week ending January 7, far less than the hours she had worked weekly during December 1977; and it is not im- probable that she terminated her employment during that 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week. Accordingly, because there is no proof to rebut Respondent's own documents and entries, I find that Lucy Joseph was not a member of the appropriate unit on January 12. LePere testified that she lost the authorization card of Mary L. Kucharski. Kuscharski, LePere testified, had signed it on January 11 or 12 and gave it back to LePere, who had also given her a card to obtain from her daughter, who was then sick at home. Kucharski re- turned the signed card of her daughter within a day or 2 days. Since Linda Kucharski's card is dated January 12, the General Counsel argues, from this evidence, that Mary Kucharski's card must have been signed on Janu- ary 11 and that this constitutes sufficient proof that her authorization should be included for the purpose of de- termining whether the Union represented a majority during the critical dates of January 12 and 21, citing Hedstrom Company, 223 NLRB 1409 (1976), enfd. in part 558 F.2d 1137 (3d Cir. 1977). I hold that the General Counsel's proof is insufficient. Without Kucharski's testimony, and with the loss of Ku- charski's card, LePere's testimony amounts to no more than unsupported hearsay of what Kucharski may have intended. Hedstrom Company supra (authorized proof of a lost card by the signer, mutually corroborated by the solicitor). Without the testimony of the signer, the Gen- eral Counsel's proof falls short. For similar reasons, I do not credit the cards of either Jane Lavoie or Marjorie Scanlon. It is axiomatic that, where the General Counsel seeks to support the relief of a bargaining order, the General Counsel has the duty to prove that the Union obtained a majority in an appropri- ate unit during a period when the employer committed unfair labor practices which might impair the Union's hope of ever reaching that majority again. The General Counsel has failed to prove that Lavoie and Scanlon val- idly designated the Union as their bargaining representa- tive. The union authorization cards are in the following form: AUTHORIZATION CARD FOR BETTER WORKING CONDITIONS AND JOB SECURITY Under the laws of the United States Government employees have a legal right to organize and bar- gain with their employer on wages and other condi- tions of employment. Name Address City----Phone--Zip-- Employer---- Job Title---- Wage ---- Soc. Security No---- Hours------Week ----- I designate and authorize the Rhode Island Workers Union to act as my collective bargaining representa- tive with my employer. Date--Signature (written)- ----- ALL NAMES KEPT CONFIDENTIAL Both Lavoie and Scanlon signed the card where "Name" appears, but did not sign at the line "Signature (written)" at the bottom of the card, under the authoriza- tion and designation of the Union. Without more, I am unable to find that either employee gave anything more than certain information to the Union, and did not give their authorization. The General Counsel argues that, be- cause Scanlon attended at least one union meeting prior to January 10, she must have designated the Union as her collective-bargaining representative. Although it may be true that attendance at a union meeting may show an interest in the Union, that does not prove that she was persuaded to take the final step of formally designating the Union. Finally, the General Counsel argues that, pursuant to an agreement made at the hearing, counsel for Respond- ent spot checked Scanlon's card for its authenticity and validity and individually interviewed Scanlon; as a result, the General Counsel argues, the burden of going forward with proof that Scanlon did not intend to designate the Union shifted to Respondent. I know of no legal authori- ty for this proposition and reject it. Indeed, on the basis of the record herein, the issue of the validity of the card was specifically acknowledged by the General Counsel as unresolved. The General Counsel did elicit proof that Lavoie's card was signed in the ladies' room under cir- cumstances where she specifically indicated her intent to authorize the Union to act as her collective-bargaining agent. I regard that testimony as unsupported hearsay. Without the testimony from the signer of the authoriza- tion card, in these circumstances, I hold that the signer's intent cannot be proved by only the solicitor's testimony. The General Counsel contends that Doreen A. Lemen- ager was not a regular part-time employee of Respondent during the critical period. Respondent maintained two regular part-time shifts: (1) a mother's shift, 5 days a week, normally from 9 a.m. to 3 p.m. and, depending on the individual, from 5-1/2 to 6 hours a day or 27-1/2 to 30 hours a week; and (2) a night shift, 4 days a week, normally from 6 to 10 p.m., working a maximum of 16 hours a week. However, most of the employees on the latter shift are high school students and work each week in sequence only for 2 to 3 days, or 8 to 12 hours per week. Ms. Lemenager's work records showed that she was employed for the following hours during the follow- ing weeks: 12 hours, week ending December 31, 1977; 4 hours, week ending January 7, 1978; 17-3/4 hours, week ending February 18, 1978; 14 hours, week ending Febru- ary 25, 1978; 7-1/4 hours, week ending March 4, 1978. Her records indicate that she was rehired by Respondent on May 1, 1978, and her first employment was the week ending May 6. I conclude that she was not a regular part-time employee. At best, her employment was spo- radic and irregular. As of the critical period, I do not consider that she was a regular employee of Respondent for the purpose of computing whether the Union repre- sented a majority to warrant a Gissel bargaining order. By reason of the foregoing, I annex as "Appendix II" [omitted from publication] a list of all the employees who were in the appropriate bargaining unit on January HEDISON MANUFACTURING COMPANY 823 12 and 21, the two dates relied upon by General Coun- sel, incorporating my findings of the validity of the au- thorization cards and of the inclusion of the employees in the unit. I conclude that, as of January 12, 191 employ- ees of 375 employed by Respondent authorized the Union to represent them as their exclusive bargaining agent. Further, as of January 21, I conclude that 195 em- ployees of 364 employed by Respondent authorized the Union to represent them as their exclusive bargaining agent. b. The need for a bargaining order It does not require extensive argument to support a Gissel bargaining order as the appropriate relief herein. Respondent commenced its illegal campaign against the Union as soon as the Union publicly showed its interest in representing Respondent's employees. At first, it inter- rogated, threatened, and polled employees. Then, it pre- cipitously laid off 21 employees, all union supporters with two exceptions, and those two persons who were caught in the web of their fellow employees' union ad- herence were speedily recalled. The layoffs were fol- lowed in rapid succession by new rules limiting the rights of employees to publicize freely, by leaflets and word of mouth, by limiting workers' rights to access to their fellow workers, by imposing new conditions of work, by promising benefits and threatening to crush the Union, and ultimately by discharging union adherents solely because they dared to seek to organize themselves. Faced with the Union's demand for recognition and bar- gaining, Respondent steadfastly refused to give the Union any attention, insisting upon making up its own rules as it went along, changing its layoff policy not once but twice, discussed infra, disdaining bargaining about such changes, and insisting upon the wholesale flouting of the Act. With the multitude of unfair labor practices existing herein, including the layoff and discharge of its employ- ees and the refusal to bargain with the Union, Respond- ent has committed separate violations which go to the very heart of the Act. Of equal importance, many of the separate violations, and certainly the violations in their totality, are of such gravity that it is impossible to allay their effects by the normal cease-and-desist order, the re- quirement to make the employees whole for their loss of pay, and the direction of a new election. In these circum- stances, no fair election can be held. Rather, the union authorization cards are a fair test of the employees' de- sires, and a bargaining order is appropriate. Although Respondent embarked on a clear course of unlawful con- duct on January 10, the Union attained a majority status only on January 12, and a bargaining order shall issue as of January 12. Donelson Packing Co., Inc., supra. 2. A reconsideration of miscellaneous 8(a)(1) allegations Because Respondent's bargaining obligation com- menced on January 12, Respondent was, on and after that date, obliged to recognize and bargain with the Union on all matters affecting the wages, hours, and other terms and conditions of employment of its employ- ees and was not legally empowered to change unilateral- ly any terms and conditions of employment. I have held, supra, that Respondent unilaterally changed its rules re- garding employees' visitation to other work areas and employees' use of bulletin boards, took away chairs in the central routing department, solicited grievances and the formation of an employee advisory committee, and threatened never to bargain with or sign a contract with the Union-all for the purpose of dissuading employees' support of the Union in violation of Section 8(a)(l) of the Act. Because Respondent committed these acts when it was obliged to bargain with the Union as the sole and exclusive representative of Respondent's employees, I find that Respondent also violated Section 8(a)(5) and (1) of the Act (pars. 8(e), (k), (o), (bb), (cc), (dd), (ee), (hh), and (ii); 20(a); 22(a) of the amended consolidated com- plaint). 3 9 Further, although I found that the grant of one week's wages to all employees for the week of February 6 did not constitute an independent violation of Section 8(a)(1) of the Act under the theory espoused by the General Counsel, I find that Respondent unilaterally granted the benefit without consultation and bargaining with the Union in violation of Section 8(a)(5) and (1) of the Act [paragraph 8(p) of the amended consolidated complaint]. Clearly, the change of terms and conditions of employ- ment, even for the better, is a subject of bargaining. 3. The layoff in the linking department On March 7 Lou Marinelli, the supervisor of the link- ing department, announced at a meeting of his employees that work was slow and that he was scheduling a layoff which would be staggered between two groups, the first of which was laid off for 3 days, from March 8-10. Fitz- patrick, Laycie Monteiro, and Maria Dorquilone were in the second group and were laid off for 5 days, from March 13-17. During the following week commencing March 20, no employees were laid off. However, on Friday, March 24, Di Carlo announced that the department was going to have another layoff and announced to Fitzpatrick that it was her turn. She and Monteiro, who was the only employee who had signed a union authorization card, were laid off from March 27-31. As a result, Fitzpatrick, who testified that she had more seniority in the department, and Monteiro were laid off a total of 10 days, whereas the other em- ployees in the department were laid off for only 3 days. The General Counsel alleges that that discrepancy was due to the support of both Fitzpatrick and Monteiro for the Union. Respondent offers little factual defense, con- tending that a layoff was justified; that Respondent could not have known that Fitzpatrick and Monteiro were the only employees who supported the Union; that these two employees were treated no differently from any other employee in the department; and that it is "inconceiv- able" that, if Respondent had desired to discriminate, it would have laid off any other employees. 3 I do not find that Respondent's refusal to permit Ackaway access to other parts of the plant-a change of the conditions of her employment- violates Sec. 8(a)(5), because her job in the sample room is not within the unit as agreed by the parties. Thus, Respondent had no duty to bargain about that change. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts remain that Fitzpatrick was a known union adherent and that she and Monteiro were treated dispa- rately. In these circumstances, the disparate treatment of these two employees was the very antithesis to a stag- gered layoff, which is normally intended to equalize the effect of declining work upon the employees in the de- partment. Respondent's conduct may have been more understandable if the layoff had lasted only until March 17, despite the fact that some employees would have borne a little more of the adverse impact than others. But "stagger" means "to alternate," and I find no expla- nation for Di Carlo's selection of the Fitzpatrick group, which had more recently been laid off, rather than the first group which had lost fewer days of employment. Because of Respondent's failure to explain its actions, I am constrained to find that the staggering was distinctly weighed against Fitzpatrick, a known union adherent, and that Monteiro, the only other union supporter in the department, either known or unknown to Respondent, was discriminated against with her. I find that Respond- ent violated Section 8(a)(3) and (1) of the Act (par. 9(a) of the amended consolidated complaint). Furthermore, Respondent failed to bargain with the Union either about the decision to lay off employees in the linking department or about the effects of that deci- sion. It may well have been that bargaining may have forestalled a layoff, or may have resulted in temporary transfers of employees to other departments, or at the very least may have spread the loss of work evenly among all the employees in the department. Instead, Re- spondent decided, willy-nilly, to proceed with a different form of layoff from that which it utilized on January 13, albeit perhaps with the intent of curing some of the infir- mities of the January 13 layoff. Unilateral decisions, of course, are not what the Act is all about. The Act en- courages bilateral discussions, full collective bargaining, give and take, and the mutual and amicable adjustment of all issues which affect employees' wages and hours, and other terms and conditions of employment. Respondent, however, never gave collective bargain- ing a chance to operate. As a consequence, I must find that Respondent also violated Section 8(a)(5) and (1) of the Act by unilaterally laying off the linking department employees in March. For the same reasons, Respondent committed the same violations of the Act in its unilateral layoffs of January 13. 4. Later changes of rules, practices, and incentive rates Two later rule changes are attacked by the General Counsel. One involved the prohibition of the use of radios by Carr and Ivory Clements in July. Their super- visor, Robert Clements, said that O'Brien had said that the radios were unsafe because a person could trip over their cords and that they were too loud. Carr claimed that they were not unsafe because the cords were placed along the air pipes on the floor in the press department and that, in any event, no one walks there. As to their loudness, Carr noted that Respondent had a sound system piping music throughout the plant and that the radios in central stores, about 30-35 feet away, could clearly be heard on many days. The other rule, promul- gated on or about August 8, prohibited the use of the pay telephones at any time except the morning and after- noon breaks and lunch room. Previously, employees made calls during working hours, although they prob- ably were required to ask for permission. Di Carlo testi- fied that she would be asked for permission to make tele- phone calls; and O'Brien stated that one of the reasons for enacting the written rule (without any positive state- ment that there had been an old oral rule-"I'm sure there must have been one") was that the telephone was being used without permission. Although it is obvious that both Carr and Clements were union adherents, the evidence is insufficient to sup- port the finding that they were selected because of their union activities. The record does not reveal whether there were many players of radios in the press depart- ment, thus indicating disparate selection of them, or whether the users of radios in central stores were union adherents. Further, although I impute to Respondent knowledge of the purpose of Carr's telephone call that it was related to the appearance of Assistant Foreman Moreau as a witness in this proceeding, because Moreau asked Carr to place the call, I am not persuaded that the purpose of the rule change was to hinder Carr's union activities. However, I do find that Respondent had a duty to bargain about any changes of past practices and I am convinced that there was a practice to use pay tele- phones and to play radios. Accordingly, the unilateral change of those past practices constituted a violation of Section 8(a)(5) and (1) of the Act (par. 8(cc) of the amended consolidated complaint). In the linking department, as well as other departments of Respondent's factory, workers were paid on the in- centive basis. A certain standard was set for the produc- tion of various items. If an employee exceeded those standards, incentive wages would be paid. Fitzpatrick credibly testified that the standards underwent many changes during the end of April or the beginning of May and that the quotas had been raised so that it made it more difficult for employees to earn incentive wages. Peter Larson admitted that he changed incentive rates in the linking department in early 1978 and that, upon taking new timestudies, rates were changed to correct errors and that standards were regularly updated, de- pending upon the experience in the department and on the particular job. Since the raising and the lowering of standards directly affected the earnings of the involved employees, Respondent had the duty and obligation to bargain with the Union about such changes and violated Section 8(a)(5) of the Act by failing to bargain with the Union (par. 20(c) of the amended consolidated com- plaint). 5. The June 2 layoff On June 2, Respondent laid off from the press depart- ment Lisa Barbeau, Leslie Barbeau, Theresa Dolinski, Suzanne Lariviere, Shirley Leonard, Annette Philopo- vich, Beverly Lafferiere, Theresa Gaulin, Jane Lavoie, Linda Archambault, Marilyn Jellison, Carol Durand, HEDISON MANUFACTURING COMPANY 825 Mary Kucharski, and Marion Lymburner.4 0 The General Counsel alleges that this layoff was in violation of Sec- tion 8(a)(5) of the Act because Respondent selected these individuals by their departmental seniority, instead of their company seniority which had been customarily (albeit often breached) used as a guide. Further, the Gen- eral Counsel alleges that the above-named employees were required to forfeit their seniority and recall rights and to accept lower wages as conditions to transferring and avoiding layoff and, because the employees refused to accept these conditions, Respondent laid them off. There is no factual issue raised by Respondent that the employees were offered transfer to the soldering depart- ment (both bench and oven soldering) and to the epoxy department, and that the results of the transfer would be: 1. The employees would be assigned new departmental seniority in the department to which they transferred. 2. The employees would lose their seniority in the press department and would not be recalled to the press department once it picked up work. 3. The employees would be treated as new employees in the departments to which they transferred, at a rate commensurate thereto, so that many of the employees would be required to take a pay reduction. The General Counsel further alleges that the condi- tions imposed upon these employees were in violation of Section 8(a)(5) because they had never been imposed before and should have been bargained about with the Union, and in violation of Section 8(a)(3) and (1) of the Act because they constituted an attempt to break up an admittedly, strongly union-oriented department and to discourage concerted activities protected under Section 7. The latter allegation arises from the fact that, several weeks before, the press department employees bitterly complained to O'Brien about accidents caused by the lack of safety guards on the press machines and the speedup of operations resulting from the incentive system instituted in the department. 41 I do not find that the June 2 layoff had anything but a peripheral relationship to the conditions of the offer of transfer. Rather than accepting the complaint's allegation that Respondent "did lay off these employees because they refused to accept these conditions" (par. 14(a)), I believe Respondent's witnesses and find that Respondent laid off these employees because there was no work in the press department. I note that the General Counsel 40 On June 2, Kucharski was on an extended sick leave, and Archam- bault and Lymburner were both disabled and receiving orkmen's com- pensation benefits. However, it is obvious that when, if ever, they recov- ered from their illness or disability, there would have been no jobs availa- ble to them as a result of the layoff 41 In his brief. the General Counsel contends for the first time that the meeting with O'Brien constituted "direct negotiations with employees at a time when the Union had established its representative status" in viola- lion of Sec. 8(a)(5) of the Act. Although the matter was fully litigated- indeed, there seems to be no dispute about the meeting and its contents- and thus ripe for disposition, I find that, in the circumstances herein, the meeting did not violate the Act. The General Counsel contended, oer and over again, that the press department was strongly union-oriented and that, in fact, one of the reasons for the layoff and the conditions im- posed was to break up that department Attending the meeting was Carr. who had previously been identified as among the union leaders The em- ployees urgently requested the meeting and made no reques for the pres- ence of their union representatives I cannot fault O'Brien for dealing with them immediately to resolve their complaints has not questioned that there was no work, despite the fact that he subpenaed many of Respondent's records, presumably in an effort to prove otherwise. Further, the proof elicited does not demonstrate that the layoff was the result of the department's support for the Union or its concerted activities. That Respondent utilized department rather than com- panywide seniority in selecting employees for layoff made no practical difference. The only employees con- ceivably affected were Norbert Moreau, an assistant foreman who had less seniority but was nonetheless a su- pervisor (even though his name was included on the se- niority list), and Leslie Barbeau, whose companywide se- niority dated from August 29, 1976, but whose depart- ment seniority was computed to commence on May 5, 1978. The General Counsel argues that, if Barbeau had been given her companywide seniority, she would not have been laid off. O'Brien, however, credibly testified that he intended a layoff of all press department employees who had less seniority than Daniel Herron, a tool setter, whose seniority was dated from August 25, 1976. 1 find that the General Counsel has failed to prove by a pre- ponderance of the credible evidence that the department- al seniority affected the decision to lay off Leslie Bar- beau. However, for other reasons, I find that Respondent violated Section 8(a)(5) of the Act by laying off the press department workers. By unilaterally imposing a layoff which affected the rights of 14 individuals to gainful em- ployment, Respondent acted in utter derogation of its duty and obligation to bargain with the Union. In Well- man Industries, Inc., 222 NLRB 204, 206 (1976), the Board stated: In the prior Wellman case [211 NLRB 639 (1974)], among the Respondent's actions which the Board found violative of Section 8(a)(1) and (5) of the Act was its unilateral laying off of employees. It follows that the Respondent's similar action in the instant case is equally violative. The same must be found as to the unilateral transfers, reductions in pay or classification, and the changes in the on-call and the shift rotation systems. All involved terms and conditions of employment of employees in the bargaining unit, on which the Union was entitled to be consulted prior to their institution. N.L.R.B. v. Benne Katz, etc. d/b/a Williamsburg Steel Products, Inc., 369 U.S. 736 (1962); Cloverleaf Cold Storage Co., 160 NLRB 1484 (1966); Chevron Oil Co., 168 NLRB 574 (1967); Legato Industries, Inc., 194 NLRB 999 (1972); Capital Electric Power Association, 171 NLRB 262 (1968); Southwestern Pipe, Inc. v. N.L.R.B., 444 F.2d 340 (C.A. 5, 1971). The basic defense interposed by the Respondent as to those actions is that they were economically or operationally motivated, and taken in good faith. Such a defense does not excuse unilateral action on matters within the authority of the bargaining repre- sentative. Economic or operative motivations do not excuse unfair labor practices. The authority, duties, and prerogatives of a bargaining representa- - 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive are dictated by the statute, and they are not subject to diminution or modification because of an employer's good faith or economic necessity. 5 In any event, the economic or operational factors did not require the Respondent to ignore the Board's certification and make the changes unilaterally. That choice the Respondent made voluntarily on its own initiative. As the court of appeals said in the case of N.L.R.B. v. Star Publishing Co., 97 F.2d 465, 470 (C.A. 8, 1938): The respondent further contends that it was necessary to make the transfer, and thus engage in the unfair labor practice, because its business would otherwise be disrupted, and there- fore, under all the facts, the transfer was excusable. We think, however, the act is controlling. The act prohibits unfair labor practices in all cases. It permits no immunity because the em- ployer may think that the exigencies of the moment require in- fraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer. Similarly, here, Respondent totally ignored the Union's demand for recognition and bargaining and, on its own initiative, unilaterally determined that a layoff was necessary, imposed the layoff based on new princi- ples of seniority, and unilaterally offered a way for em- ployees to escape from the loss of total employment-all without bargaining with the Union. No matter whether there was work in the press department or not, Respond- ent has violated Section 8(a)(5) of the Act. In addition, the recall of employees from the layoff constitutes a fur- ther violation of Section 8(a)(5) with respect to Leslie Barbeau. The unilateral change of seniority from the date of her commencement of employment to the date that she transferred into the press department caused her to be placed at the bottom of the seniority list, rather than at the top. This resulted, at the time of the hearing, in the recall of employees Jellison on August 28 and Lisa Barbeau, on September 5, rather than Leslie Barbeau, who should have been, but was not, recalled first. IV. THE OBJECTIONS TO THE ELECTION I have found that, between the date of the filing of the petition for and the date of the election, Respondent committed serious unfair labor practices which consti- tute, in part, the objections filed by the Union, quoted supra. Each of the unfair labor practices falling within that period constitute conduct affecting the election. In addition to those allegations, there was referred for hearing in the instant proceeding the additional allega- tion of the Union, in support of Objection 4, that there were "incidents wherein supervisors were stationed in the corridors during the election, immediately outside the voting area, as well as evidence of an incident wherein an eligible voter was driven by the employer [Respondent] from the Lincoln, Rhode Island voting site to the Providence, Rhode Island voting site." There was no testimony offered regarding the driving incident. In support of the other objectionable conduct, Fitzpa- trick testified that she was an observer for the Union in the March 3 election and specifically functioned as a runner to bring employees to the factory cafeteria, which was the polling place, from various departments, accom- panied by an observer designated by Respondent and an agent of the Board. During the course of the voting in the factory cafeteria from 1:15 to 4:20 p.m., she testified that she saw Hedison once, about 30 feet from the cafe- teria in the finished goods corridor, standing and looking around. She was unclear whether she was leading a group to the voting place or away from the voting place back to their department. My examination of the blue- prints of the premises convinces me that, even if Hedison were standing in the corridor, Fitzpatrick would not have seen him for more than the time it took her to walk approximately 30 feet. The encounter was, at best, brief and isolated. On another occasion she stated that she was in the wrapping and packaging department and looked out to finished goods corridor where Marinelli, Graham, Calla- han, and Bittner were standing. This was about 90 feet away from the polling place. Fitzpatrick testified that she said to the Board agent that every big boss in the place was standing there and that he had to do something about it. I am convinced that she confused this incident with the prior incident, as to which O'Brien testified that there was one occasion that afternoon, at approximately 2:30 or 3 p.m., he and Hedison were conversing outside O'Brien's office in the central routing department. Short- ly thereafter, the Board agent rushed over and asked them to get out of there and stay out of sight. They had been there for approximately 2 to 3 minutes and no one was passing through the corridor on the way to the poll- ing place. When told by the Board agent to leave, they did so. I do not believe that the presence of O'Brien and Hedison for a brief period of time, before leaving pursu- ant to the Board agent's instructions, and the grouping of three supervisors in a corridor 90 feet away from the polling place for an indeterminate period of time consti- tute conduct affecting the results of the election. I there- fore overrule this portion of Objection 4. Despite my findings of objectionable conduct, because I have recommended that a bargaining order issue, I rec- ommend that the election be set aside, that Case I-RC- 15542 be dismissed, and that all proceedings in connec- tion therewith be vacated.4 2 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Rhode Island Workers Union is a labor organization within the meaning of Section 2(5) of the Act. 4 The Ideal Electric and Manufacruring Company, 134 NLRB 1275 {1hl); rading Port. Inc., 219 NLRB 298 (1975). - ------ HEDISON MANUFACTURING COMPANY 827 3. All full-time and regular part-time production and maintenance employees of Respondent employed at its 11 Wellington Road, Lincoln, Rhode Island, and 116 Chestnut Street, Providence, Rhode Island, facilities, in- cluding leadpersons-floorladies and plant clerical employ- ees, but excluding all office clerical employees, technical employees, professional employees, salespersons, seasonal employees, guards, foremen, assistant foremen, and all other supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 8(c) of the Act. 4. On or about January 12, 1978, and at all material times thereafter, the Union represented a majority of em- ployees in the appropriate unit, and has been the exclu- sive representative of said employees for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union since January 12, 1978, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(aX5) and (1) and 2(6) and (7) of the Act. 6. By imposing a new rule prohibiting employees from visiting their fellow employees in other departments during morning, afternoon, and lunch break periods and threatening employees with discipline for violation of that rule; by imposing a new rule prohibiting employees from posting union-related or union literature on Re- spondent's bulletin boards and threatening employees with discipline for violation of that rule; by granting a week's wages to certain of Respondent's employees for the week of February 6, 1978; by promising employees advancement and other benefits and improvements in order to discourage their union activities; by soliciting employees to adjust their grievances for the purpose of dissuading employees from joining, assisting, or support- ing the Union; by changing incentive rates and standards; by changing the method for determining the seniority of its employees; by imposing new rules prohibiting the playing of radios and the use of pay telephones during working hours-all without bargaining with the Union- Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 7. By interrogating employees concerning their union activities or the union activities of their fellow employ- ees; by asking them if they or their fellow employees had signed union authorization cards; by asking employees to spy on the union activities of their fellow employees; by threatening employees that Respondent would close if the Union were successful in organizing Respondent's employees; by threatening employees with discharge for engaging in union activities; by disciplining an employee because he engaged in union activities; by polling em- ployees about their union sympathies; by illegally sur- veilling the union activities of employees; by discharging Supervisor Gary McKiernan as a cover for penalizing employees for their union activities; by restricting em- ployee access to work areas in order to discourage union activities; by threatening employees with the withholding of wage increases from employees in order to discourage their union activities; by telling their employees that Re- spondent would never bargain or sign a contract with the Union, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 8. By discharging James Ferreira, Glen Hutloff, Thomas Lawton, and Russel Moison on January 31, 1978, and thereafter by refusing to reinstate them, for en- gaging in union activities and for joining and assisting the Union, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 9. By unilaterally laying off Daniel Bedard, Dan Carr, Mark Caya, Annette Chicoine, Ivory Clements, Thomas Lawton, Rachel Leduc, Deborah Marsella, Thomas Rattie, Theresa Robertson, Susan Sherman, Chery L. Silva, Luba Green, Anthony Lopes, Maurice Kujawski, Sandra Rattie, Helen Dufresne, Katherine Bourque, Helen Rondeau, Blanche Descy, and Suzanne Lariviere on January 13, 1978, and Tracey Fitzpatrick and Laycie Monteiro in March 1978, and thereafter refusing to rein- state certain of them, without bargaining with the Union about the decisions to lay off employees and the effects thereof, and for engaging in union activities and for join- ing and assisting the Union, Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(5), (3), and (1) and 2(6) and (7) of the Act. 10. By unilaterally laying off, without bargaining with the Union about the decision to lay off and its effects, Lisa Barbeau, Leslie Barbeau, Theresa Dolinski, Suzzane Lariviere, Shirley Leonard, Annette Philopovich, Bever- ly Lafferiere, Theresa Gaulin, Jane Lavioe, Linda Ar- chambault, Marilyn Jellison, Carol Durand, Mary Ku- charski, and Marion Lymburner, on June 2, 1978, and thereafter refusing to reinstate many of them, and specifi- cally refusing to reinstate Leslie Barbeau on August 28, 1978, and thereafter, without bargaining with the Union, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. Ii. Respondent has not violated the Act in any other manner which warrants a remedial order. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take appropri- ate affirmative action designed to effectuate the policies of the Act. Having found that Respondent, on January 13, 1978, laid off Daniel Bedard, Dan Carr, Mark Caya, Annette Chicoine, Ivory Clements, Thomas Lawton, Rachel Leduc, Deborah Marsella, Thomas Rattie, Theresa Rob- ertson, Susan Sherman, Cheryl Silva, Luba Green, An- thony Lopes, Maurice Kujawski, Sandra Rattie, Helen Dufresne, Katherine Bourque, Helene Rondeau, Blanche Descy, and Suzanne Lariviere; that Respondent, on Jan- uary 30, 1978, discharged Gary McKiernan; that Re- spondent, on January 31, 1978, discharged James Fer- reira, Glen Hutloff, Thomas Lawton, and Russell 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moison; and that Respondent on June 2, 1978, laid off Lisa Barbeau, Leslie Barbeau, Theresa Dolinski, Suzanne Lariviere, Shirley Leonard, Annette Philopovich, Bever- ly Lafferriere, Theresa Gaulin, Jane Lovoie, Linda Ar- chambault, Marilyn Jellison, Carol Durand, Mary Ku- charski, and Marion Lymburner--all in violation of the Act--I shall recommend that Respondent be ordered to offer immediate and full reinstatement to each of them, if it has not already done so, 43 to their former positions or, if no longer available, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges; and make each of them and Tracey Fitz- patrick and Laycie Monteiro4 4 whole for any loss of earnings or any monetary loss that they may have suf- fered from the date of the discharge or layoff, as the case may be, as a result of Respondent's unlawful conduct, less interim earnings, if any. The amount of backpay shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), together with in- terest thereon as computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).45 As indicated above, having found that a Gissel order is warranted, I shall recommend that Respondent cease and desist from refusing to bargain with the Union, retroac- tive to January 12, 1978, and, upon request of the Union, bargain with it and, if an understanding is reached, embody such understanding in a signed agreement. I shall also recommend that Respondent cease and desist from laying off or offering terms and conditions for avoiding layoff or making changes of terms and condi- tions of employment of employees in the bargaining unit, including changing the method for determining seniority of its employees without bargaining with the Union about the matter. In addition, I shall recommend that, if requested by the Union to do so, Respondent rescind the unilateral layoffs, any changes to the incentive rates and standards, and the new rules regarding posting of notices on bulletin boards, visitation to other departments during lunch and break periods, the playing of radios, and the use of pay telephones during working hours. It is possible that Respondent's violation of unilaterally laying off employees on June 2 resulted in no loss of em- ployment or earnings to employees; if it did, the employ- ees are entitled to compensation therefor, and effectu- ation of the policies of the Act requires it. Because I have found that there was a lack of work in the press department on June 2, it is unclear whether any or all the employees affected by Respondent's unilateral ac- tions are consequently and ipso facto entitled to full re- muneration. Although Respondent's policy was to trans- fer employees temporarily to other departments when work was "slow," the record does not make clear whether that policy kept employees completely insulated from a layoff at a later date. Some employees, like Ivory Clements, were laid off from 4-6 weeks, according to 4 Fredemanl's Caicasieu Locks Shipyard, Inc., 206 NLRB 399 (1973) 44 Fitzpatrick and Monteiro were reinstated to their former positions after the week of March 27; therefore, no order requiring their reinstate- ment is necessary. 45 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) In light of 14' Carter Maxw'ell, d/b/a Pioneer Concrete Ci., 241 NL.RB No. 31 (1979), the General Counsel's motion to increase the interest rate is denied. Carr. Furthermore, if Respondent had bargained with the Union, the parties may very well have reached an agreement that there would be no layoff at all, or that other employees would have been selected for layoff, or that only some of the employees would have been laid off. It may well be that, if there had been bargaining, a course which Respondent wholly rejected, or if Re- spondent's past practices justified a transfer, the employ- ees would have been permitted to transfer to the epoxy or soldering departments without any of the conditions which Respondent unilaterally imposed, as was the case with two of the casting department employees laid off on or about June 12. To set forth at this stage the result of such negotiations and the past practices of Respondent is premature. Rather, the questions of whether any particular employ- ee would have been laid off, but for the unfair labor practice, and for what period of time, and entitled to re- imbursement and, if so, in what amount, are questions to be resolved in a compliance proceeding, if the parties are unable to reach an agreement on such issues. Ramos Iron Works, Inc. and Rasol Engineering, 234 NLRB 896 (1978); Wellman Industries, Inc., 222 NLRB 204, 208 (1976); Cloverleaf Cold Storage Co., 160 NLRB 1484, 1493-95 (1966). Notwithstanding the above, it is clear that the unilateral imposition of department, rather than plant, seniority resulted in Respondent's failure to recall Leslie Barbeau on August 28, 1978, and I recommend that she be made whole for all lost wages and benefits from that date on, in addition to such other backpay she may be entitled to. It is clear that the layoff of Fitzpatrick and Monteiro commencing on March 27, 1978, made them lose a full week's wages. They must be made whole for the same. Whether they are entitled to further backpay is a matter which is best left to the complaince stage of this pro- ceeding. Because Respondent has unilaterally decreased incen- tive rates and increased incentive standards since January 12, 1978, it is most likely that many employees have lost incentive pay as a result. I shall recommend that those employees be made whole for their losses. Because of the character of the unfair labor practices found herein, the recommended Order provides that the Respondent cease and desist from in any other manner interfering with, restraining and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 4 6 The Respondent, Hedison Manufacturing Co., Lincoln, Rhode Island, its officers, agents, successors, and assigns, shall: 4" In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the Natioilal Labhor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted hy the Board and Con in ued HEDISON MANUFACTURING COMPANY 829 1. Cease and desist from: (a) Unlawfully interrogating employees concerning their union membership, activities, or sympathies, or those of their fellow employees and polling employees as to such membership, activities, or sympathies. (b) Unlawfully representing to employees that Re- spondent would close its plant and never bargain or sign a contract with the Rhode Island Workers Union. (c) Threatening employees with discharge, discipline, or any other reprisals or unlawfully promising benefits to discourage them from joining or supporting a union. (d) Retaliating against employees because they joined or assisted a union by making their working conditions more undesirable, onerous, or burdensome. (e) Asking employees to spy on the union activities of other employees or otherwise engaging in surveillance of union activities. (f) Making or discriminatorily enforcing work rules re- stricting employees from visiting plant areas during the lunch hours or break periods or from posting notices on Respondent's bulletin board or by changing the terms and conditions of employment to restrict employees from access to other areas of Respondent's plant, in order to prevent employees from engaging in union activities. (g) Informing employees that, because of the election petition filed by the Union, no wage increases will be granted. (h) Soliciting employee grievances and complaints and promising, either expressly or impliedly, to take remedial action. (i) Promising any improvements in terms and condi- tions of employment to discourage employee adherence to the Rhode Island Workers Union. (j) Discouraging membership of its employees in or support of the Union, or any other labor organization, by discharging or laying off any of its employees or discrim- inating in any manner in respect to their hire and tenure of employment or any term or condition of employment, in violation of Section 8(a)(3) of the Act. (k) Refusing to bargain collectively with Rhode Island Workers Union as the exclusive representative of Re- spondent's employees in the appropriate unit described below, with respect to wages, hours, and other terms and conditions of employment. (I) Laying off employees, or changing incentive rates and standards, without first bargaining with the Union about the decision and its effects. (m) Taking any other action affecting the wages, hours, or terms and conditions of employment of em- ployees in the appropriate bargaining unit without first notifying and consulting the Union. (n) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join the Rhode Island Workers Union, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. become its findings. conclusions, and Order, and all objections hereto shall be deemed waived for all purposes 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request of the Union, bargain collectively with it as the exclusive representative of Respondent's employees in the unit described below with respect to wages, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement: All full-time and regular part-time production and maintenance employees of Respondent em- ployed at its 11 Wellington Road, Lincoln, Rhode Island and 116 Chestnut Street, Providence, Rhode Island facilities, including leadpersons-floor ladies and plant clerical employees, but excluding all office clerical employees, technical employees, pro- fessional employees, salespersons, seasonal employ- ees, guards, Foremen, Assistant Foremen, and all other supervisors as defined in Section 2(11) of the Act. (b) Upon request of the Union, rescind the layoffs of January 13 and June 2, 1978, and unilateral changes of Respondent's rules and practices and incentive rates and standards; resume its policy of permitting employees to play their radios, to make telephone calls during working hours, and to visit employees in other departments during morning and afternoon break; permit its employ- ees to post union-related or union notices on its bulletin boards; and permit its employees, who customarily per- form their jobs in several areas of Respondent's plant, access to such areas. (c) Upon request by the Union, bargain collectively with the Union with respect to the decision to lay off employees; bargain collectively with the Union with re- spect to the effects of such layoff; and, if an understand- ing is reached thereon, reduce to writing and sign any agreement reached as the result of such bargaining. (d) Offer to each employee laid off on January 13 and June 2, 1978, if it had not already done so, and Gary McKiernan, Thomas Ferriera, Glen Hutloff, Thomas Lawton, and Russell Moison, immediate and full rein- statement to his or her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his or her seniority or other rights and privi- leges, and make each employee and Tracy Fitzpatrick and Laycie Monteiro whole in the manner provided above in the section entitled "The Remedy" for any loss of pay he or she may have suffered from the date of his or her unlawful layoff or discharge, as the case may be, until the date of such offer of reinstatement. (e) Make whole any employee for any loss he or she may have suffered since January 12, 1978, because of Re- spondent's unilateral decisions to decrease incentive rates or increase incentive standards. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Post at Respondent's places of business at Lincoln, Rhode Island, and Providence, Rhode Island, copies of the attached notice marked "Appendix IIl." 47 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (h) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found herein. 47 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. APPENDIX I RULING ON GENERAL COUNSEL'S MOTION TO EXCLUDE WITNESS FROM TESTIFYING I have previously ruled the subpoena ad testificandum, which was served on Harry D. Hedison on August 23, 1978, was an effective and valid subpena, notwithstand- ing Respondent's sole contention that it was a nullity by reason of its being returnable on Monday, August 28, 1978, the day when this hearing was originally scheduled to commence. The record will show that, because of set- tlement negotiations which took place all that day, this hearing did not open until Tuesday. I feel no need to re- iterate my prior ruling, except to note, should the instant ruling become the subject of further legal proceedings, that the subpena was and continues to be valid, unless withdrawn by counsel for the General Counsel, quashed by me or the National Labor Relations Board, or re- leased by me after due and proper compliance. None of these events has occurred. Further, the record will show that Respondent's coun- sel, Mr. Sweeney, expressly represented in open court on August 29, 1978, that Mr. Hedison would appear and tes- tify in this proceeding on August 30, 1978. On August 30, 1978, Mr. Sweeney altered his position, notifying all parties that Mr. Hedison would not comply with the sub- pena, based solely, if my recollection is correct, that he would not subject Mr. Hedison to the kinds of questions that Mr. Graham was then being asked and that Mr. Sweeney would produce Mr. Hedison only on Respond- ent's direct case. I am persuaded that the failure to comply with the subpena was not due to any inability or accident, but was willful, conscious, and intentional. Counsel for the General Counsel, as may have been anticipated, now renews his motion to exclude Mr. He- dison from testifying in this proceeding by reason of his earlier failure to appear and to comply with the subpoena ad testificandum, dated August 23, 1978, as well as the two subpeonas duces tecum, dated August 15, 1978, and August 22, 1978, as to which two motions to quash and revoke were filed, but not on the grounds that valid service had not been made. All parties will recall that I ruled earlier in this pro- ceeding that a similar motion made by counsel for Gen- eral Counsel was premature in that Mr. Hedison had not appeared to testify, and there was no valid reason why I should have excluded him from testifying at that point in the hearing. That branch of the instant motion is prob- ably still premature, but in the interest of the expedition of this proceeding, so that all parties will be advised as to my ruling and rationale therefore, in the event that any party seeks to obtain the Board's special permission to appeal immediately, General Counsel's motion is ripe, in my opinion, for disposition. I have previously noted that the question of the exclu- sion of a witness who has failed to comply with a subpoe- na ad testificandum presents a question of first impres- sion. Contrary to counsel for General Counsel's position, I do not believe that P.S.C. Resources, Inc., 231 NLRB 233, is dispositive. There, in a similar factual setting, the Administrative Law Judge failed to rule, and the Board found that that failure to rule was an error. However, the Board denied General Counsel's motion to strike the testimony for reasons which are set forth in the footnote in that opinion. Although there appears to be no case directly on point, the parties have made reference to a line of deci- sions of the Naitonal Labor Relations Board, some ap- proved by Circuit Courts of Appeal, relating to Re- spondent's refusal to produce documents and records pursuant to subpoena duces tecum duly served by the General Counsel. Those decisions, as well as others, have been helpful in reaching a resolution of the instnat motion. In Bannon Mills, Inc., 146 NLRB 611, the respondent refused to produce material and relevant records pursu- ant to subpenas served upon it. The General Counsel proceeded to prove his case by presenting secondary evi- dence. Thereafter, the respondent on its direct case sought to introduce the subpenaed but unproduced rec- ords, together with secondary evidence of other matters provable by said records. The Board held that the Trial Examiner properly excluded the records and the second- ary evidence. Bannon Mills has been consistently fol- lowed by the Board. In American Art Industries, Inc., 166 NLRB 943, re- manded on other grounds 415 F.2d 1223 (5th Cir. 1969), the court upheld the Trial Examiner's rejection of re- spondent's secondary evidence after respondent had re- fused to produce the primary evidence which had been subpenaed, noting that, "It would have been inequitable to allow the Company to contradict [the General Coun- sel's secondary evidence] with more secondary evidence while the Company, at all times, had [the conclusive rec- ords] in its possession and refused to produce them. In order to maintain the integrity of the hearing process, the Trial Examiner had, under the circumstances, little --- HEDISON MANUFACTURING COMPANY 831 choice but to refuse [the Respondent's secondary evi- dence]." See also N.L.R.B. v. C.H. Sprague & Son Co., 428 F.2d 938, 942 (Ist Cir. 1970). Thus, under Board law, a party's failure to produce subpenaed documents results in (a) proof by secondary evidence of the facts which might have been proved by the withheld documents and (b) exclusion of the docu- ments when finally offered by the subpoenaed party and exclusion of secondary evidence. See also 4 Wigmore Evidence § 1210 (2) (Chadburn rev. 1972). I find no reason why this rule should not apply with equal force to a party whose principal executive officer fails to comply with a subpoena ad testificandum. To hold otherwise would clearly be destructive to the integrity of this hearing process. It would encourage an adverse wit- ness, duly subpenaed, to appear during the course of a hearing at his own pleasure, without proper excuse or justification, thus making a mockery of the General Counsel's right to proceed with the presentation of his evidence in the manner in which he sees fit, and flouting with impunity the valid subpena processes duly granted by Congress to the National Labor Relations Board under Section 11(1) of the National Labor Relations Act. The potential prejudice to the effectuation of the Act is self-evident. Mr. Hedison, concededly the chief officer of the Respondent and a participant in many of the events alleged in the complaint as violative of the Act, was called as a witness on the first day of this hearing. He refused to appear at that time. Now, some twelve trial days later, Respondent commences to proceed on its case on the very allegations which General Counsel had stated that he intended to elicit testimony from Mr. He- dison. In the meantime, all of the testimony has been elicited in support of the particular allegations of the complaint. By so proceeding, there is an open invitation to Respondent to "'construct defenses which would permit violations to go unremedied."' New England Medical Center Hospital v. N.L.R.B., 548 F.2d 377, 382 (C.A. 1, 1976), quoting Title Guarantee Co. v. N.L.R.B., 534 F.2d 484, 491 (2nd Cir. 1976), cert. denied 429 U.S. 834 (1976). That is the very conduct criticized by the Supreme Court in justifying its refusal to grant a party-respondent access to witnesses' statements under the Freedom of In- formation Act. N.L.R.B. v. Robbins Tire and Rubber Co., sl. op. 77-011, page 27 (June 15, 1978). The Respondent argues that Section 11(2) of the Act and the pertinent Rules and Regulations of the National Labor Relations Baord provide that subpenas may be en- forced solely and exclusively in the United States Dis- trict Court, and that no relief for noncompliance may be granted by the Board or one of its Administrative Law Judges. Bannon Mills, however, demonstrates that the Board has the right, if not the obligation, to protect duly issued subpenas by the imposition of appropriate reme- dies. Indeed, the application of adverse inferences from the failure of a party to produce relevant evidence within his control should not be conditioned upon re- quiring either the opposing counsel or the General Coun- sel "to utilize the cumbersome and time-consuming" pro- cedure for enforcement of the subpena. International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America [Gynodyne Company] v. N.L.R.B., 459 F.2d 1329 (C.A.D.C., 1972). The Supreme Court in its Robbins Tire decision, at 23-24, was acutely aware that this Agency is charged with the duty of ef- fectively investigating and prosecuting violations of the Act, and that the potential for delay is contrary to the purposes of the Act. As a consequence, I do not believe it was incumbent upon General Counsel to seek to enforce his subpena in a Federal district court. That would lead only to delay, however short, but possibly substantial, which should not be countenanced in a representation case, see Tropicana Products, Inc., 122 NLRB 121, 123, and City and county Electric, Inc., 191 NLRB 167, or in an unfair labor prac- tice case, see Robbins Tire. Here, this proceeding is a consolidated representation and unfair labor practice proceeding. In the latter, the General Counsel requests that a bargaining order be issued, clearly a matter which involves the same rights of collective bargaining which a representation proceeding is intended to resolve without delay. Further, the com- plaint alleges numerous violations of Section 8(a)(3), there being approximately two dozen individuals who have been permanently severed from employment, and whose rights are entitled it speedy adjudication. The General Counsel requests that I preclude Re- spondent from adducing any proof in defense of the alle- gations of that portion of paragraph 10 dealing with the alleged discriminatory discharges which occurred on January 31, 1978, and of paragraph 8(n), the discharge of Mr. McKeirnan on January 30, 1978. I have given consideration to whether such relief should be limited to proof of Mr. Hedison's participation in the alleged violations, but believe that justice would not be served by so limiting the relief sought. Mr. He- dison refused to appear and testify pursuant to a duly issued and served subpena. I infer, to paraphrase the lan- guage of the UAW case, 459 F.2d 1329, at 1338, that all other things being equal, Mr. Hedison would of his own volition introduce the strongest evidence available to prove Respondent's case. If evidence within his knowl- edge would in fact strengthen his case, he could be ex- pected to introduce it even if he were not subpenaed. Conversely, if such evidence were not introduced, it may be inferred that the evidence is unfavorable to him and to Respondent. The subpena strengthens the force of this inference. Mr. Hedison insisted on withholding evidence even in the face of a subpena requiring him to testify. It could hardly be doubted that he had some good reason for his refusal. Human experience indicates that the most likely reason for his refusal is that his testimony would be unfa- vorable to the cause of the Respondent and would sup- port the General Counsel's case. Mr. Hedison's failure to testify and his suppression of unfavorable evidence must, as a most probable result, have weakened General Counsel's case. To permit Re- spondent to now elicit only the proof which may be fa- vorable to Respondent, while withholding less favorable and likely damaging testimony, is patently inequitable and prejudicial, and should not be countenanced. I there- 832 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD fore grant this portion of General Counsel's motion in its entirety. I deny, however, General Counsel's motion to strike that portion of Respondent's answer which denies para- graphs 8(n) and 10, and the related paragraphs which allege that the conduct set forth in paragraphs 8(n) and 10 are unfair labor practices. I note, parenthetically, that Respondent has admitted the facts set forth in paragraph 10 of the amended complaint. The granting of the motion to strike is tantamount to a default judgment. I am not prepared to grant such extraordinary relief but shall consider the record in its entirety to ascertain whether the allegations are supported by substantial evi- dence, applying any inferences which I deem proper in the circumstances. Because of these rulings, it should be obvious that I intend to exclude Mr. Hedison as a witness in this pro- ceeding, when and if he is called to testify. Respondent has taken a calculated risk when Mr. Hedison refused to appear in defiance of the subpoena ad testificandum. I will limit my ruling, however, only to those seven areas about which Mr. Steiglitz indicated he wished to ques- tion the witness.