Custom Coating & Laminating Corp.

CUSTOM COATING & LAMINATING CORP. 765 Custom Coating & Laminating Corporation and United Steelworkers of America, AFL-CIO. Cases -CA-15917 and 1-RC-16151 May 23, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On December 28, 1979, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive 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,1 and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. I 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 Wall 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. In adopting the Administrative Law Judge's findings with respect to credibility, however, we specifically disavow his comments, in sec. 11,A,3 of his Decision, to the effect that, if Respondent's unlawful activity had not occurred, the record would indicate the "unrealistic" situation of Re- spondent not having engaged in a preelection campaign. In sec. II,A,4, of his Decision, the Administrative Law Judge errone- ously states that employee Ronald Wood attributed to Supervisor Paul Gauthier a threat to close or rent out the plant if the Union won the elec- tion. In sec. II,C,(2), of his Decision, the Administrative Law Judge cor- rectly states that Wood attributed the threat to Respondent's president, Plourde. Wood's testimony that Plourde made the threat during a con- versation with Wood on March 15, 1979, was not contradicted. Plourde did not testify. 'The Administrative Law Judge cited The Great Atlantic d Pacific Tea Co., Inc., 166 NLRB 27 (1967), in finding that Respondent violated Sec. 8(a)X) of the Act when, on two occasions, Supervisor Gauthier made statements to employee Wood conditioning improved benefits and work- ing conditions upon the Union losing the election. The cited case in- volved an employer's grant of benefits to employees while a representa- tion election was pending, whereas the instant case involves a promise of future benefits conditioned upon the results of the election. In adopting the Administrative Law Judge's conclusion that Gauthier's statements violated Sec. 8(a)(1) of the Act, we rely on the well-established principle that promises of improved employee benefits, contingent upon the out- come of an election, interfere with the employees' exercise of their Sec. 7 rights. See, e.g., Fidelity Telephone Company, 236 NLRB 166 (1978); Lam- minert Industries, a division of Componetrol Inc., a subsidiary of l- T-E Impe- rial Corporation, 229 NLRB 895, 908 (1977). With respect to the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(a)(1) of the Act, when Gauthier threatened to discharge Wood if Wood continued to speak with other employees during worktime, we note Wood's testimony that his duties necessitated conversations with machine operators. Wood, whose testimony was cred- ited over that of Gauthier wherever conflict existed, testified that when 249 NLRB No. 117 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 and hereby orders that the Respondent, Custom Coat- ing & Laminating Corporation, Worcester, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. IT IS FURTHER ORDERED that the election in Case -RC-16151 be, and it hereby is, set aside, and that this case be remanded to the Regional Di- rector for Region 1 for the purpose of conducting a new election in the appropriate unit at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] in the production area he would speak with machine operators for 2 or 3 minutes and that Gauthier had not spoken to him before about spending excessive amounts of time talking with people in the plant. There is no indication in the record that Gauthier either knew, or made an attempt to ascertain, the content of Wood's conversations with the machine opera- tors. It is clear, however, that Gauthier linked the threat of discharge to Wood's involvement in the union campaign. Under these circumstances we agree with the Administrative Law Judge's conclusion that the threat constitutes a violation of Sec. 8 (aXl) of the Act. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: These cases were heard before me on October 25, 1979, at Boston, Massachusetts. The original charge was filed on April 11, 1979,1 and was amended on May 29. On May 31, Michael F. Walsh, Acting Regional Director for Region 1 of the National Labor Relations Board issued a complaint and notice of hearing alleging that Custom Coating & Laminating Cor- poration, hereinafter called Respondent or Employer, violated Section 8(a)(1) of the National Labor Relations Act, as amended, hereinafter called the Act. The charge and its amendment were filed by United Steelworkers of America, AFL-CIO, hereinafter called the Union or Pe- titioner. In essence, the complaint alleges that Respondent en- gaged in a variety of conduct amounting to interference, restraint, and coercion of employees in the exercise of their rights guaranteed in Section 7 of the Act. Specifi- cally, Respondent was alleged to have unlawfully cre- ated impressions that the union activities of its employees were under surveillance; actually engaged in surveillance of those activities; threatened to close its plant or rent out its premises; threatened discharge; and promised its employees increased benefits in order to dissuade them from continuing their union activity. ' All dates are in 1979 unless otherwise stated. DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 26, the Union filed the instant representa- tion petition. On March 6, a Decision and Direction of Election was issued by Robert S. Fuchs, Regional Direc- tor for Region 1. A Board-supervised election was conducted on April 5 among all full-time and regular part-time production and maintenance employees of Respondent in the unit found appropriate. Challenges to ballots were determinative of the election results. On April 10 the Union filed the instant objections to the election. On June 28, pursuant to the Regional Director's Sup- plemental Decision the challenged ballots were opened and counted. Thereafter, a tally of ballots issued showing that II votes had been cast for the Union and 14 votes were against representation. The objections remained pending. On July 19 an order consolidating the unfair labor practice and representation cases issued. The issues certi- fied for a hearing on objections by the Regional Direc- tor's supplemental decision are, in part, coextensive with certain of the unfair labor practice allegations. Objec- tions 1, 3, and 5 were set to be heard by an administra- tive law judge. Objection I alleges unlawful surveillance of union meetings; Objection 2 asserts Respondent en- gaged in unlawful interrogation of employees; and Ob- jection 5 is a general statement that the employer "for these and other reasons" interfered with the free choice of employees when casting their ballots. Respondent filed a timely answer which admitted cer- tain allegations but denied the substantive allegations of the complaint and also that it had committed any unfair labor practices. In addition, Respondent claimed it en- gaged in no such objectionable conduct as would war- rant setting aside the election results. All issues were fully litigated at the hearing; all parties were represented and were afforded full opportunity to examine and cross-examine witnesses, to introduce evi- dence pertinent to the issues, and to engage in oral argu- ment. Post-hearing briefs have been received from coun- sel for the General Counsel and counsel for Respondent. The contents of these briefs have been carefully consid- ered. Upon the entire record, and from my observation of the witnesses, and their demeanor in the witness chair, and upon substantial, reliable evidence, "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent, a Massachusetts corporation with a prin- cipal office and place of business at 717 Plantation Street, Worcester, Massachusetts, at all material times has been engaged in the manufacture, sale, and distribution of spe- cialized coatings and laminated films and related prod- ucts. Annually, Respondent ships materials exceeding $50,000 in value from its Worcester, Massachusetts, loca- tion directly to points outside of Massachusetts. In the same period of time, Respondent receives materials valued in excess of $50,000 at its Worcester, Massachu- setts, location directly from points outside Massachusetts. Respondent admits, and I find, it has been engaged in commerce within the meaning of the Act at all material times. The parties agree, the record reflects, and I find that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Credibility Credibility of the respective witnesses is the determi- native factor in resolving the instant issues. Virtually every critical element of the alleged unfair labor prac- tices and objections is directly disputed by the witnesses for the opposing parties. Only two witnesses testified. Counsel for the General Counsel produced employee Ronald P. Wood. Respond- ent's sole witness was Supervisor Paul A. Gauthier. I have carefully weighed all their testimony, bearing in mind the tendency of witnesses in general to testify as to their impressions or interpretation of what was said rather than attempting to give verbatim accounts and also bearing in mind that even the person testifying about his own remarks may well tend to elucidate or express what he said or intended to say in language more explicit or clearer than he used in the actual speech or discus- sion. As indicated, the record is replete with instances of Wood and Gauthier providing testimony in direct oppo- sition to the other. I shall not discuss each and every one of such testimonial conflicts, for to do so would unduly lengthen this decision. On the other hand, I have not ig- nored all such testimony, nor the arguments of counsel thereon. The ultimate choice in making my findings of fact is based upon my observation of the demeanor of the wit- nesses, the weight of the respective evidence provided by them, established or admitted facts, inherent probabil- ities, and reasonable inferences which may be drawn from the record as a whole. Northridge Knitting Mills, Inc., 223 NLRB 230 (1976); Warren L. Rose Casting, Inc. d/b/a V & W Castings, 231 NLRB 912 (1977); see also Gold Standard Enterprises, Inc.. et a, 234 NLRB 618 (1978). In the credibility contest between Wood and Gauthier a fair assessment of the testimony presented by each per- suades me that it is Wood's version of events which is most credible. In general, Wood was direct, certain, clear, and precise throughout his testimony. 2 In contrast, Gauthier's testimony is illogical, more generalized, and pervaded by self-serving denials. 2 [ do not regard a solitary discrepancy between Wood's prehearing affidavit and oral testimony before me diminishes my conclusion. The prehearing affidavit indicates that Respondent's president, Roger Plourde, was looking straight ahead as he drove by a union meeting. At the hear- ing, Wood testified he saw Plourde give a "slight look up towards the building" as he drove b it. These statements are not necessarily incon sistent. Even assuming such a diametric posture, on the state of this record which contains the factors to be enumerated hereinbelow as to credibility, I conclude this discrepancy insufficient grounds to discredit Woods. 766 CUSTOM COATING & LAMINATING CORP. 767 Specifically, I find the following factors to be persua- sive indicators of relative credibility: 1. Wood was inherently consistent. Thus, Wood testi- fied that Gauthier warned him that President Plourde would attend a forthcoming union meeting among Re- spondent's employes. Wood further testified that, when he went to the meeting a few days later, he looked around the street corner where the union hall was locat- ed. Wood claimed he was examining the area for signs of surveillance. Although Respondent argues Wood's action is virtual nonsense, I believe Wood actually made the search and that it was stimulated by Gauthier's warning of the potential for Plourde's presence. Thus, this inci- dent lends credence both to Wood's account of his con- versation with Gauthier during which the warning was issued and also to Wood's subsequent identification of Plourde at the scene of the union hall. 2. Gauthier's testimony is illogical and, at the same time, corroborative of Wood. As indicated above, Wood testified Gauthier warned that Plourde possibly would be at the forthcoming union meeting. Gauthier corroborated Wood by acknowledging the two of them did have a conversation regarding the possibility Plourde would be at the meeting. However, Gauthier claimed it was Wood who made inquiry whether Plourde would attend. In the context of the pending representation petition, I consider it more plausible that the employer, rather than an em- ployee, would raise the issue of who might attend the union meeting. The parties agree that the disputed conversation oc- curred approximately March 14. As will be further de- veloped, infra, I consider this conversation the first dem- onstrated overt effort by Respondent to engage in its preelection campaigning. In this posture, I consider it im- plausible that a rank-and-file employee would question whether his company officials would attend a union meeting. This conclusion is buttressed by the fact that Gauthier himself had earlier attended the union meetings but stopped doing so after he had been determined to be a statutory supervisor in the Regional Director's Deci- sion and Direction of Election. Thus, the lines of demar- cation between unit employees and supervisory personnel were clear. There simply would have been no need for Wood to have asked the question Gauthier sought to as- cribe to him. Rather, I conclude the record as a whole more reasonably supports the conclusion, which I make, that Respondent, on March 14, began to wage a preelec- tion campaign. 3. The entire chronological sequence of events derived from Wood's testimony is plausible. As just noted, the events depicted by Wood are consistent with the Em- ployer's waging of a preelection campaign. The election machinery was set in motion on March 6 by the issuance of the Decision and Direction of Election. The election was scheduled to be conducted on April 5. Meanwhile, Wood testified to the following outline of activity: (a) March 14-Gauthier told Wood Plourde might attend the union meeting. (b) March 15-Gauthier issued a threat to close the plant if the Union were elected the employees' bargain- ing agent. (c) March 18-Plourde engaged in surveillance of a union meeting. (d) Sometime during the week of March 18-Gauthier promised benefits if the Union would not be elected. (e) Shortly before the election, Gauthier reiterated his allegedly unlawful promise of economic benefits. To adopt Respondent's contentions that none of the al- leged unlawful activity occurred (and, indeed, some of the conversations are illusions) would effectively vitiate the very existence of any preelection campaign on behalf of the Employer. It is unrealistic to believe that Re- spondent virtually made no effort to persuade its em- ployees to vote against the Union. I find the sequence of events as narrated by Wood more consistent with indus- trial realities than the state of events resulting from adop- tion of Gauthier's explanations and bare denials. 4. Persuasive, also, is the fact that Wood literally has been unchallenged in a highly critical area, and virtually unchallenged in another. The latter area is as to the alleged threat to close the plant. Wood attributed that threat to Gauthier. Although Gauthier was specifically asked to, and did, explain or deny all other incidents in which he allegedly was in- volved, Gauthier did not explicitly refute the substance of the conversation described by Wood during which the alleged threat had been made. The second element of Wood's testimony totally devoid of challenge relates to the allegations of surveil- lance. Wood implicated Plourde in such conduct. Thus, Wood unequivocally identified Plourde driving a motor vehicle past the union hall during a union meeting at- tended by Respondent's employees. Also, Wood pro- vided circumstantial identification of Plourde sitting in an automobile across the street from the union hall while Respondent's employees were meeting. This latter identi- fication was made by Wood's observation of Plourde's hair color, combined with the presence of a motor vehi- cle similar to that owned by Plourde. Plourde was in attendance throughout the instant hear- ing. He was not called to testify by any party. In the above-described circumstances it is reasonable to infer, as I do, that Plourde's testimony would have been adverse to Respondent had he testified. Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939); Mona- han Ford Corporation of Flushing, 173 NLRB 204 (1968); Crow Gravel Co., 168 NLRB 1040, 1047 (1967). Clearly, Plourde is an individual within Respondent's control. See 2 Wigmore, Evidence, §286(a). Accordingly, I credit all of Wood's testimony relative to seeing Plourde near the union hall. Upon all the foregoing, wherever conflicts exist, I credit Wood rather than Gauthier. I reject Respondent's post-hearing argument that the General Counsel's failure to produce witnesses to corroborate Wood's testimony impacts adversely upon Wood. That situation is not anal- ogous to Respondent's failure to produce Plourde to tes- tify. Thus, the absence of former employee Peter Bour- goin from the hearing has been considered. Bourgoin was a coemployee with Wood. Gauthier supervised both of them. According to Wood, Bourgoin was present at many of the incidents of alleged misconduct. It is uncon- tradicted that Bourgoin was no longer employed by Re- 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent at the time of the hearing. Indeed, Bourgoin's precise whereabouts was then unknown. Clearly, Bour- goin was not within the direct control of either the Gen- eral Counsel or the Union. See 2 Wigmore, Evidence, supra. Of course, Bourgoin was subject to the subpena process. Use of that process is a matter of tactical judg- ment which should not be evaluated by me in the present circumstances. In skeletal form, this credibility argument of Respondent suggests that credibility should be deter- mined quantitatively. I disagree. Respondent's position is ironic and unjustified by logic and probability. The irony is that Respondent urges Gauthier, also uncorroborated, should be credited while attacking Wood's veracity. Moreover, I have already noted the sequential logic of events and probability of their occurrence. In sum, and upon all the foregoing, I find Wood fully credible. Accordingly, the recitation of facts contained hereinbelow will conform to those propounded on behalf of the General Counsel. B. Scenario of Events3 The events herein emanate from the Union's efforts to organize Respondent's production and maintenance em- ployees. Sometime in January, Wood and other employ- ees, including Gauthier who attended at Wood's invita- tion, held their first organizational meeting with union representatives. As indicated, the instant representation petition was filed by the Union on January 26. Thereaf- ter, weekly meetings were held each Sunday at the union hall. There is no evidence that Respondent conducted an overt preelection campaign during February. However, considerable activity occurred during the week immedi- ately succeeding the March 6 Decision and Direction of Election. On March 14, Gauthier spoke with Wood and Bour- goin. Gauthier told them that Plourde was going to "show up" at the next union meeting. Wood further tes- tified that Gauthier said Plourde might even personally attend the meeting. Wood protested that he believed such conduct by Plourde would be improper. Gauthier disagreed and said that, in any event, there was nothing the employees could do about it.4 The next day, March 15, Plourde spoke with Wood. Only the two of them were present. There is no evi- dence showing the locus of the conversation. Plourde initiated a discussion of Respondent's existing profit-shar- ing plan. Wood agreed the plan was a good one. Wood told Plourde he was "involved" with the Union. Plourde acknowledged a prior awareness of that fact. Wood asked whether this union status would result in retali- ation if the Union "didn't get in here." (I conclude Wood's quoted words reflect his understanding that if a The facts recited in this section are a composite of Wood's credited testimony and of Gauthier where he agreed with it, and that material which otherwise appears uncontradicted. Where variations deemed mate- rial exist, they are discussed and resolved. Although only the facts con- sidered relevant to the issues are recited for the sake of brevity, I have considered all matters litigated and arguments of counsel made upon them Thus, omitted matter is deemed irrelevant, superfluous, or not credible 4 This conversation is referred to in par. 2 of the credibility section, supra, of this Decision the Union were to lose the election he would be some- what unprotected). Plourde did not respond to Wood's inquiry. Instead, Plourde told Wood that he "just barely met his payroll in January and if the Union got in there, he would most likely either close down the plant or sell or rent the new part of the building, and that he couldn't afford to pay union wages." (Emphasis supplied.) The March 15 Plourde-Wood conversation continued with Wood discussing various job-related problems and Plourde providing comments on them.5 On Sunday, March 18, a union meeting was scheduled and conducted at the union hall. Wood drove to the union meeting. The union hall is a three-story building located on the corner of a central thoroughfare in Worcester, Massachusetts. The entrance is located on an intersecting side street. Wood parked his car on the side street about a 100 yards from the hall. He walked to the corner where the hall stands, and looked up the main street. He saw a white four-door Mercedes sedan parked about 200-250 yards from the union hall. (It is undenied that Plourde has driven two white Mercedes, which he owns, to work.) Wood saw no one in that car at that time. Wood then walked through the entrance of the union hall and waited for other employees. As they appeared, Wood testified he told them he thought he "spotted" Plourde's automobile. After waiting inside the union hall entrance for approximately 5-10 minutes, Wood went into the meeting room located on the third floor. In the meeting room, Wood sat in a chair next to a window overlooking the main street. Wood continued his observation, apparently sporadically, for approxi- mately one-half hour, after which he saw that the Mer- cedes no longer was parked in the place where he origi- nally observed it. However, Wood did see a white Mercedes drive past the union hall going about 10-15 miles per hour. As it passed parallel to his view, he saw Plourde driving the vehicle. Wood testified Plourde wore a brown hat and coat. During the hearing (as previously noted) Wood tes- tified it was at this point that he saw Plourde give a "slight look up towards" the union hall. 6 Wood watched Plourde continue driving and saw him make a left turn at the next intersection. A diagram of the immediate environs of the union hall is in evidence. From this, I conclude such a left turn would normally be the beginning route for anyone desiring to drive around toward the union hall. This conclusion is derived from the layout of the one-way streets. After seeing the car make the turn, Wood again turned his attention to the meeting. Approximately 5 minutes later, Wood looked out a window facing the side street along which the union hall was located. He saw a white Mercedes parked on that street. At that point, there is no evidence that Wood ob- served anyone in the car. However, Wood testified that, as he exited the building after the meeting, he saw "sil- ' As noted, Wood's entire account of the March 15 events is uncontra- dicted. I credit this testimony and, as previously stated, find no material in- consistency between it and any other of Wood's testimony CUSTOM COATING & LAMINATING CORP. 769 verish-greyish hair over the newspaper" which was held by an individual sitting in the car. At the hearing, Wood identified Plourde, who, as previously noted, was in at- tendance at the hearing as having "silverish-grey" hair. Wood visited a nearby tavern and returned to his own car about one-half hour later. At that time, Wood ob- served the white Mercedes was no longer parked on the side street. Wood testified that the next day he told Gauthier that Plourde "had shown up" at the union meeting the pre- ceding day. According to Wood, Gauthier responded, "I told you so." Gauthier denied that Wood specifically re- ported Plourde had gone to the union meeting. Howev- er, I find Gauthier was equivocal regarding this matter. This is demonstrated by the following excerpt from the official transcript: Q. (By Mr. Abbott) Do you remember a conver- sation where Ronald Wood, wherein he stated that Roger Plourde had in fact gone to a union meeting? A. No. Q. Did such a conversation ever take place? A. No. Not with him. [Emphasis supplied.] Assuming Gauthier's denial of such a conversation be- tween him and Wood, it is clear Gauthier nonetheless ac- knowledged that someone had reported Plourde's pres- ence at the union meeting. I consider such a report sup- portive of Wood's observation of what occurred on the day of the union meeting. This support, coupled with the adverse inference which I have made from the failure of Plourde to testify, leads me to find, as I do, that Plourde was actually present in proximity to the union hall on March 18, as asserted by the General Counsel. I further conclude that Wood and other employees were simulta- neously aware of Plourde's presence. The probability that it was Plourde sitting behind the newspaper in the parked car on the side street is established by (a) Wood's identification of Plourde's hair color; (b) the vehicle so parked was similar in color and manufacture to vehicles owned by Plourde; and (c) the designated flow of one- way traffic patterns in the immediate area. Although these elements are circumstantial, in the instant context I conclude it was incumbent upon Respondent to intro- duce contraverting evidence if available. On the following Wednesday, March 21, Gauthier and Wood again spoke about the Union. Gauthier initiated the conversation with Wood and Bourgoin by saying the employees should trust him. According to Wood, Gauth- ier said "things would get better if the Union didn't get into the plant; and he was not going to try to sway the employees' votes, and he couldn't promise things would be better, but if the Union didn't get in, they would get better. "7 Interestingly, Gauthier also recalled he had one con- versation with Wood regarding benefits in relation to the Union or the impending election. Contrary to Wood, Gauthier testified that the conversation was initiated by Wood. I find it unnecessary to resolve this conflict. I ' Wood stated this conversation occurred "the following Wednesday." This ambiguous testimony sets the conversation either on March 21 or 28 It is alleged as March 29 in the complaint conclude it does nothing to assist in resolving credibility or determining other issues. Instead, I conclude that the substance of Gauthier's testimony pertaining to a conver- sation with Wood regarding employee benefits is in sub- stantial accord with that provided by Wood. Thus, Gauthier testified he told Wood "if the Union didn't get in . . . we could have better benefits, possibly better benefits than the Union could provide for us." I conclude that, whichever version of the alleged promise of benefit is adopted, it is clear, and I find, that Gauthier commented to Wood and Bourgoin that im- provements were directly related to the Union losing the forthcoming election. According to Wood, during the week of March 26 (al- leged in the complaint as the week of March 18) Gauth- ier called him aside and threatened him with discharge if he continued talking to the machine operators during company time. Gauthier acknowledged he told Wood to stop talking to the machine operators and if Wood per- sisted in that activity he could "possibly [be] let go." Gauthier recalled that conversation occurred "a couple or more weeks before the election." Gauthier testified that Wood had been spending an in- ordinate amount of time talking to the machine opera- tors. Additionally, Gauthier testified without contradic- tion that he had forewarned Wood in this connection. Neither participant to that conversation provided any evidence of any explicit reference to the Union or the election during that conversation. Upon the foregoing references to the conversation containing the alleged threat of discharge, I find that sometime between March 18 and the April 5 election Gauthier told Wood to stop talking to the machine oper- ators on company time and that continued similar infrac- tions could lead to his discharge.8 Finally, Wood testified that 2 or 3 days before the election Gauthier told him that if the Union did not get in Plourde would offer some kind of package deal con- cerning benefits, including pay, job title, and working conditions. Gauthier simply denied the existence of such a conversation. I find Gauthier made the statements a few days before the election, as described by Wood. This finding is based, in part, upon my overall credibility findings. Ad- ditionally, I find this incident particularly plausible be- cause it is inherently consistent with the earlier conversa- tion between Gauthier and Wood during which Gauthier connected improvements to the failure of the Union to be elected as bargaining agent. I have already noted Gauthier virtualy admitted the accuracy of the substan- tive description provided by Wood as to the earlier con- versation. Gauthier's denial that the second conversation even took place is highly suggestive of a self-contradic- tion. It runs against probability. Having already linked a union loss to improvements, I find it likely Gauthier 8 To the extent that this finding may be inconsistent with my overall credibility resolutions, such a result is permissible. A trier of fact is "not required to discount everything [witnesses] testified to because he did not believe all of it and nothing is more common than to believe some and not all of what a witness says." Edwards Transportartion Company, 187 NL.RB 3 (1970). enfd. per curiam, 437 F.2d 502 (5th Cir 1971). 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have repeated that theme shortly before the elec- tion. C. Analysis It is the General Counsel's position that each of the complaint allegations has been proved as separate unfair labor practices and also objectionable conduct which af- fected the results of the election. Respondent argues the General Counsel's burden of proof has not been satisfied and, in the alternative, Respondent's demonstrated activi- ties constituted legitimate preelection conduct. (1) Surveillance-In complaint paragraph 8(a) it is al- leged "that Roger Plourde was going to be at a union meeting scheduled for March 18, 1979." The theory of violation was not readily apparent to me at the hearing. Counsel for the General Counsel was asked to describe her theory in her post-hearing brief. She has done so. In essence, the General Counsel theorizes that Gauthier's March 14 remark that Plourde would be at the union meeting the following Sunday instilled an apprehensive atmosphere regarding the conduct of their activities pro- tected by the Act. In support, the General Counsel has cited American Book Division, Litton Educational Publish- ing Inc., 214 NLRB 413 (1974). I conclude the American Book case does not support the General Counsel's explic- it theory of the violation contained in complaint para- graph 8(a). There is, however, the following pertinent language which I find provides the predicate for finding valid the allegations that Respondent engaged in actual surveillance and created an impression of surveillance as alleged in complaint paragraph 8(b). Thus, the Board at 214 NLRB 421 wrote: The complaint alleges that [a supervisor] unlaw- fully engaged in surveillance of a union meeting at the home of [an employee] .... Several employ- ees testified that they saw [the supervisor] sitting in his car in the vicinity of [the employee's] house at various times during the meeting. Respondent of- fered no explanation for [the supervisor's] presence at the meeting. This unexplained surveillance of the . . union meeting is clearly in violation of Section 8(a)(l) of the Act. Additionally, the Board found the above-described sur- veillance constituted objectionable conduct and set aside election results. Thus, despite my disagreement with the General Counsel of the applicability of American Book to the alle- gations contained in complaint paragraph 8(a), I nonethe- less find that Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act when Gauthier told Wood Plourde might be at the union meeting. The test of whether certain conduct of employers is violative of Section 8(a)(1) is whether or not that conduct reasonable tends to have an interfering effect uori employees. Impact Die Casting Corporation, 199 NLRB 268, 271 (1972); Sturgis Newport Business Forms, Inc. v. N.L.R.B., 563 F.2d 1252, 1256 (5th Cir. 1977). In the present circumstances, I cannot consider Gauth- ier's remark mere idle banter. He had previously attend- ed several union meetings. In that way, he was privy to the variety of discussions among the employees who at- tended those meetings. Undeniably, he was fully aware of the increasing level of union activity exemplified by the filing of the petition and conduct of the representa- tion hearings by the Board's Regional Office. The issu- ance of the Decision and Direction of Election signaled to all participants the opposing characteristics of employ- ee and employer in representation matters. In the above context, I conclude that to tell employees their employer might attend a meeting at which they would engage in union or other protected activity rea- sonably has the requisite interfering effect to warrant a finding that such a remark uttered by a statutory supervi- sor to employees comprises an 8(a)(l) violation. I so find. Additionally, I find that Plourde was either engaged in surveillance or conducted himself in a manner which created an impression of surveillance of the employees' union activities on March 18. The American Book case is authority for the proposition that Section 8(a)(l) was violated by Plourde when he drove past the union hall and later sat in his vehicle parked on the side street where the entrance to the union hall was located. I do not extend the adverse inference made against Plourde so as to find that Plourde was shown to be in the vicinity of the union hall at any time before he was specifically ob- served to drive by it. Specifically, I find that the General Counsel has not proved it was in fact a vehicle owned by Plourde which was seen by Wood before he entered the union hall. To clarify, it is only after the positive identification of Plourde as driver and by description of hair color that I consider the burden shifted to Respond- ent to explain or refute such direct and circumstantial evidence, or suffer the application of permissible infer- ences. Not all instances where employer representatives are at or in the vicinity of the union activities of their subor- dinate employees amount to unlawful surveillance. Thus, where purely fortuitous circumstances bring such parties together there is no dogmatic legal principle by which the employer would be declared to have violated the Act. For example, in Atlanta Gas Light Company, 162 NLRB 436, 436 (1966), the Board overruled a regional director's conclusions that an employer engaged in im- proper surveillance. There, the employer representative was present in the only bowling alley within the commu- nity in which the union meeting was held. He had pa- tronized the bowling alley before the night of the meet- ing. Some of the employees invited him into the meeting. He remained there without incident for a brief period of time and left upon the request of the union representa- tive. The remainder of the evening was spent bowling with a friend. The Board concluded that the employer representative was free to patronize the bowling alley. The Board concluded "his mere presence, without more specific evidence that it was not for a legitimate purpose, or that it was for the purpose of observing the meeting, establishes neither surveillance of the meeting by him, nor a reasonable basis for an impression of surveillance in the minds of employees in attendance at the meeting." In the instant case, I perceive no legitimate purpose for Plourde's presence at or near the union hall on CUSTOM COATING & LAMINATING CORP. 771 March 18. There is no evidence to show that the union hall is anywhere near Respondent's plant. The incident occurred on Sunday. There is no record evidence that Sunday was a workday for any of the subject employees. Indisputably, Plourde had prior knowledge the union meeting would be held. Finally, Plourde's presence in the vicinity of the union hall is wholly unexplained, except for Gauthier's March 14 remark that Plourde might go to the union meeting. On the state of this record, the virtually inescapable conclusion is that there is no showing of a reason for Plourde to be at or near the union hall on the day in question. Indeed, Gauthier's announcement that Plourde might be there strongly sup- ports the finding which I hereby make that on March 18 Plourde positioned himself in the area of the union hall expressly to engage in surveillance of the employees' union activities and/or create an impression he was doing so. Upon all the foregoing I find there is merit to the alle- gations of complaint paragraph 8(a) and (b). (2) Threat to close-Complaint paragraph 8(c) contains the allegation that Respondent unlawfully threatened to close the plant or rent part of it. This allegation is based upon Wood's uncontradicted testimony regarding his March 15 conversation with Plourde. As already noted, Plourde complained he narrowly met his January payroll and said "if the Union got in (the plant), he would most likely either close down the plant or sell or rent the new part of the building and that he could not afford to pay union wages." To find Plourde's comments exceed the bounds of per- missible conduct I must conclude his message portrayed that dire economic consequences were destined to occur "regardless of the economic realities." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 619 (1969). Put another way, did Plourde (I) indicate that he would deliberately inflict plant closure upon the employees, or (2) did he state consequences not within his control, yet (without objective evidence) declare the probability that the ad- verse consequences will occur? N.L.R.B. v. C J. Pearson Company, 420 F.2d 695 (Ist Cir. 1969), enfg. 173 NLRB 1469 (1969). To respond to these questions, recourse is to be made to the "context of the factual background in which [the campaign statements] were made, and in view of the to- tality of employer conduct." N.L.R.B. v. Lenkurt Electric Company. Inc., 438 F.2d 1102, 1107 (9th Cir. 1971). This issue is not free from doubt. The Gissel Packing case teaches that employers may predict precise effects they believe unionization will have upon them. "[T]he prediction must be carefully phrased on the basis of ob- jective fact to convey an employer's belief as to demon- strably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization." 395 U.S. at 618. My assessment of Plourde's plant closing remark, in the attendant circumstances, convinces me it was unlawful. A reasonable prediction should be based upon available fact. I find Plourde's remark was based upon conjecture and generalization. Respondent urges that Plourde spoke from objective fact; namely, his difficulty in meeting the January pay- roll. Respondent's February payroll, or other economic condition, is not in the record. Thus, assuming the accu- racy of Plourde's statement concerning Respondent's January payroll, I consider that single reference provides a shallow and insufficient standard by which it can be said Plourde spoke from objective fact. This is not a situ- ation where fragments of economic setbacks are legiti- mately used in representation campaigns by employers to express their concern over their competitive positions. In such cases, those fragmented economic data comprise the objective considerations upon which to base predictions. Compare the instant situation with Continental Investment Company, 236 NLRB 237 (1978) and TRW Electronic Component Division. TRW, Inc., 169 NLRB 21 (1968). In short, I conclude the evidence does not show that the economic consequences suggested by Plourde were indeed beyond his control, especially because he had not yet been confronted with contract proposals. Moreover, the totality of the evidence persuades me that Respondent's preelection campaign was punctuated with illegal conduct. In this context I conclude that Plourde's March 15 reference to plant closing had the effect of indicating a deliberate plant closing if the Union were elected bargaining agent. Accordingly, I find com- plaint paragraph 8(c) has merit. (3) Threat of discharge-The General Counsel contends that Respondent violated Section 8(a)(l) when Gauthier told Wood he was subject to discharge if he continued to speak to machine operators during company time. I agree. As indicated, Wood was a shipper and receiver. He credibly testified his duties required he make frequent visits to the production area. He acknowledged such visits had been brief, stating he would speak with other employees on their machines for only 2 or 3 minutes. Gauthier acknowledged it was normal practice for Wood to speak to machine operators. Thus, Gauthier tes- tified: Q. (By Mr. Abbott) From your observations would you say there had been an increase in the frequency of times when Mr. Wood would speak to machine operators? A. Yes. Q. How about the length of conversations. Was there any increase in the length of the conversation? A. Yes. I'd say there was two or three [or] four minutes added to normal time. Q. Now, what normal times, at what normal times would he have been conversing with machine operators? A. Prior to the Union. [Emphasis supplied.] I conclude the above transcript abstract (1) confirms the practice of Wood speaking with machine operators, and (2) that both the frequency and length of such dis- cussions increased after the advent of the Union. Thus, it is reasonable to infer that the subject warning and threat of termination were issued as a consequence of Wood's outspoken and notorious stance as a union protagonist. In this posture, the fact (argued by Respondent) that Wood had received a prior warning for the same reason is irrel- evant. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent cited several cases relating to the validity of solicitation and distribution rules. I consider those cases inapposite because, herein, I conclude it has been established that Gauthier's warning and threat to Wood directly evolved from Wood's protected activities. Gauthier's testimony set forth above reflects Respond- ent's concern that Wood's increased conversations with other employees were union-related. Even assuming the presumptive validity of Respond- ent's no-solicitation rule, that situation may be rebutted by conduct which shows such unfair application as to convert its character. Capitol Records, Inc., 233 NLRB 1041, 1045-46 (1977); N.L.R.B. v. Montgomery Ward & Co., Inc., 554 F.2d 996 (10th Cir. 1977), affg. in relevant part 220 NLRB 373 (1975). Gauthier's own testimony, quoted above, strongly suggests the reasonable inference that Respondent's no-talking rule had been promulgated especially in response to Wood's apparent union activity. The record as a whole fails to impress me with a legiti- mate business or production need for establishment of the rule at the particular time coincidental with the union activity. The instant situation is governed by Reeves Brothers, Inc., Eagle & Phenix Division, 207 NLRB 51, 53 (1973), cited by the General Counsel. In Reeves warnings and the application of a no-solicitation rule were given and made at times when the recipient had been engaged in union activity. Although it may be argued that in Reeves there was present a specific allegation and finding of dis- criminatory intent, and that factor is distinguishable from the instant situation, I do not consider such an argument persuasive. As earlier noted, discriminatory intent is not a necessary ingredient of a violation herein. The instant subject matter needs only a reasonable conclusion of ad- verse impact upon the free exercise of Section 7 rights. Upon all the foregoing, I conclude there is merit to the allegation of complaint paragraph 8(d). (4) Promises of benefits-I have already found that Gauthier, on two occasions, conditioned improved bene- fits and working conditions upon the Union losing the election. The Supreme Court in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964), observed that the Act "prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." The granting of employee benefits during the critical preelection period is not a per se violation of the Act or ground for setting aside an election. Each case must be determined upon its own facts. The test was aptly stated by the Board in The Great Atlantic & Pacific Tea Compa- ny, Inc., 166 NLRB 27, fn. 1 (1967), as follows: As a general rule, an employer, in deciding whether to grant benefits while a representation election is pending, should decide that question as he would if a union were not in the picture. On the other hand, if an employer's course of action is prompted by the Union's presence, then the em- ployer violates the Act whether he confers the benefits or withholds them because of the Union. The record is devoid of evidence to show that Re- spondent contemplated increasing the benefits of unit employees before the instant petition had been filed. If anything, Plourde's remarks concerning the January pay- roll difficulties virtually eliminate the possibility of such planned increases. The plain, clear, and unmistakable language of Gauth- ier's statements regarding improvements explicitly con- nected their grant to the outcome of the election. In the absence of cogent explanation for Gauthier's remarks, I conclude they were calculated to induce election results favorable to Respondent. Such conduct is violative of Section 8(a)(1). Accordingly, I find merit to the allega- tion of complaint paragraph 8(e). 11. THE OBJECTIONS As indicated earlier herein, Objections 1, 3, and 5 were the subject of the instant proceedings. Conduct which violates Section 8(a)(l) of the Act is, a fortiori, interference with representation elections. St. Anne's Home, Division of DePaul Community Health Center, 221 NLRB 839, 848 (1975), and cases cited there- in. I have found that Respondent violated Section 8(a)(1) by having engaged in surveillance of and having created the impression that the union activities of its employees were under surveillance. Accordingly, I hereby find merit to Objection I. Similarly, my findings are that Respondent violated Section 8(a)(l) by the threats of plant closure and dis- charge, together with the promises of improved working conditions. Inasmuch as each of these activities is encom- passed within Objection 5, I hereby find that Objection 5 is meritorious. Objection 3 asserts, in relevant part, "the Employer ... conducted intensive questioning of employees re- garding their feelings toward the Union." This objection is coextensive with the allegation of unlawful interroga- tion contained in complaint paragraph 8(f). Upon oral motion of counsel for the General Counsel, complaint paragraph 8(f) was deleted.9 Thus, no party adduced any evidence relating to this allegation; nor did any party seek to produce evidence in support of Objection 3. Ac- cordingly, I find the record contains no evidence in sup- port of this objection. Upon the foregoing, I conclude that the results of the election should be set aside and another election con- ducted at such time as the Regional Director for Region I deems that circumstances permit a free choice of bar- gaining representative. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the follow- ing: 9 Strangely, the General Counsel's post-hearing brief contains an argu- ment relative to the deleted allegation. In making my findings herein, I have disregarded all arguments pertaining to complaint par. 8(f). __^ --- CUSTOM COATING & LAMINATING CORP. 773 CONCLUSIONS OF LAW I. Custom Coating & Laminating Corporation is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act by the following: (a) Threatening, on March 15, 1979, to close or rent out its plant if the Union were elected bargaining agent. (b) Engaging in surveillance of the union activities of its employees and creating an impression that such activi- ties were under surveillance on March 18, 1979. (c) Promising, on March 21, 1979, improved benefits to employees if the Union were not elected bargaining agent. (d) Sometime between March 18 and April 5, 1979, telling an employee to stop talking to other employees on company time or he would be discharged. (e) Sometime between April I and April 5, 1979, promising better benefits to employees if the Union were not elected their bargaining agent. 4. There is merit to Objections I and 5 in Case -RC- 16151 and those objections should be sustained. 5. Objection 3 has no merit and should be overruled. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. By engaging in the conduct found objectionable, Respondent interfered with its employees' freedom of choice in the election conducted on April 5, 1979, in Case -RC-16151. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and to post appro- priate 'notices. It will be further recommended that the election held on April 5, 1979, be set aside and that Case -RC-16151 be remanded to the Regional Director for Region 1 for the purpose of conducting a new election at such time as he deems that circumstances permit a free choice of bar- gaining representative. Respondent will also be ordered to refrain from engag- ing in unfair labor practices by conduct of a like or relat- ed manner to the activities found unlawful herein. ° Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act I hereby issue the following recom- mended: ORDER " The Respondent, Custom Coating & Laminating Cor- poration, Worcester, Massachusetts, its officers, agents, successors, and assigns, shall: 'O Hickmott Foods. Inc., 242 NLRB No. 177 (1979). " In the event no exceptions are filed as provided by Sec. 102.48 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided 1. Cease and desist from: (a) Threatening to close or rent out its plant if its em- ployees elect United Steelworkers of America, AFL- CIO, or any other labor organization, as their bargaining agent. (b) Engaging in surveillance, or creating the impres- sion of surveillance, of the union activities of its employ- ees. (c) Promising economic benefits to its employees in the event they would not elect the Union as their bar- gaining agent. (d) Threatening to discharge employees because they engage in union activities. (e) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post at its Worcester, Massachusetts, facility copies of the attached notice marked "Appendix."'2 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 it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) 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 election in Case 1- RC-16151 be set aside, and that case be remanded to the Regional Director for Region I for the purpose of con- ducting a new election at such time as he deems appro- priate. IT IS FURTHER ORDERED that Objection 3 be over- ruled. 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. '2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives whom they, themselves, select _ . 774 DECISIONS OF NATIONAI LABOR RELATIONS BOARD To engage in activities together for purposes of collective bargaining or to act together in order to seek improvement in their wages, hours, working conditions, and other terms and condi- tions of employment To refrain from any and all such activities. WE WILL NOT tell you that we will close or rent out our plant if United Steelworkers of America, AFL-CIO, or any other labor organization, is elect- ed by you to be your bargaining agent. WE WILL NOT keep watch over your union activ- ities, or create an impression that we are doing so. WE WILl. NOT promise to improve your wages, hours, or other terms or conditions of employment if you do not select United Steelworkers of Amer- ica, or any other labor organization, as your bar- gaining agent. WE WIll NOT tell you you might lose your job for engaging in union activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the free exer- cise of any of the rights set forth above. CUSTOM COATING & LAMINATING CORPO- RATION